As the wheels of justice turn

Despite Judge Sanders Sauls' best efforts, the case over the Miami recount drags into Sunday.


Jake Tapper
December 3, 2000 7:52AM (UTC)

Circuit Court Judge Sanders Sauls doesn't look like he's enjoying this any more than the rest of the nation is. He's scowling, even frowning a bit.

Sauls had said that he wanted this hearing -- Vice President Al Gore's official contest of Florida's certified election returns -- to be completed after a full Saturday of arguments and witnesses. But that's clearly not going to happen.

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As the sky grows dark, it's crystal clear that we're not going anywhere anytime soon.

I'm in the third pew in courtroom 3-D, laptop on my lap. At the front of the room, the folksy Sauls is rocking back and forth in his leather chair, his lips pursed like he's about to whistle.

Fred Bartlit, a serious and severe-looking attorney for Gov. George W. Bush, asks questions of the Bush legal team's first witness, Judge Charles Burton, chairman of the Palm Beach County canvassing board.

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The room is saturated with lawyers. Bush has been represented earlier in the day by the wiry Barry Richard and Colorado attorney Phil Beck, who is nothing if not a poor man's Kevin Spacey. Plus, of course, the lawyers imported earlier in the week from former Secretary of State Jim Baker's Houston, Texas, law firm.

But Daryl Bristow and Irv Terrell -- the latter of whom was brought in because supposedly once upon a time he was part of a legal team that beat Gore attorney David Boies -- don't do or say anything Saturday. So much for the men referred to on Monday as "the Boies-killers."

Boies, a braniac once referred to by the National Law Journal as "the Michael Jordan of the courtroom," has grown testy in the last few days. It doesn't seem like the Gore team -- which also consists of the genteel Dexter Douglass and barristers Jeff Robinson and Steve Zack -- is having such a great day. Beck comes at both of the Gore witnesses with theatric aggression.

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"Would you answer my question?" he impatiently asks one Gore witness, the long-winded punch card ballot expert Kimball Brace.

"I thought I did," Brace replies.

"No," Beck says. "Answer yes or no. Then if you need to explain ..."

"OK. That would certainly be the main thing that I ..."

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"You're supposed to answer yes or no," Beck says.

"Yes," says Brace.

"Yes?"

"Yes," Brace says again.

"Thank you," Beck says, his voice dripping with a candy-covered combination of exasperation and disdain.

It started nicely enough.

Sauls had said that he wanted this to be a 12-hour hearing, winnowing down the number of Bush witnesses from 90 to 20.

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"Let's get all the fluff off," Sauls said on Friday.

Following his lead, Boies and Richard begin the day with a bipartisan motion-and-second to try to keep their opening remarks concise.

And we're off. Though we've all learned by now that this thing could end up anywhere -- being decided by the U.S. Supreme Court, the Florida Legislature, the U.S. House and Senate, or the fat Baldwin brother -- Gore's legal team has pinned a lot on Sauls' courtroom, where it hopes to finally get those Miami-Dade ballots hand counted.

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Boies steps up and declares that "the issue before this court is 'Is there, or are there, legal votes that have been rejected?'" It doesn't matter why Harris didn't accept Palm Beach County's post-deadline numbers, Boies argues; what matters is that the county tabulated votes that that Sauls now should include for Gore.

There are 3,300 ballots that vote-counting machines in Palm Beach didn't read accurately, Boies says, and 51 votes from Nassau County that were counted for Gore on Election Night and taken away after the machine recount. Likewise, Boies argues, a partial recount of 20 percent of Miami-Dade's 10,750 "undervotes" or "no-votes" gleaned a net gain of 157 Gore votes. Boies says that hand recounting the other 9,000 ballots might result in an additional as-yet-uncounted 2,000 discernable votes.

That could certainly affect Bush's margin of victory, Boies notes, "which, as everybody in the country and probably the world knows, is 537."

He ends after about 15 minutes, telling Sauls that he's "not going to spend time arguing 'the right to vote,' or any of that," he says.

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Now it's Richard's turn, and he comes out swinging, saying that Boies' arguments are "unreasonable and contrary to Florida law." Richard says Boies is arguing that "the court should disregard all the actions of the canvassing boards."

"If we accept Mr. Boies' premise, there is no reason for a tabulation on Election Night," Richard says. Just ship all the ballots to Tallahassee after the election and have all the judges count them. Rather, "the conduct of the canvassing boards comes to this court with a presumption of correctness."

Boies will have to prove "whether or not the Miami-Dade, Palm Beach or Nassau canvassing board has abused its discretion, not only that it acted wrongly but also acted in a fashion that no reasonable person would have done."

Richard points out that Boies has soft-pedaled this premise since first introducing it on Tuesday to a somewhat skeptical reaction from Sauls. Richard has assumed the role of Boies deconstructor, pointing out what he sees as unreasonableness in Boies' reasonably presented arguments, framing Boies' tactics as crude attempts at legal manipulations, pulling back the curtain, as it were.

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Other attorneys in the room get a moment to speak. Fresh off his U.S. Supreme Court appearance, Joe Klock -- the attorney for Secretary of State Katherine Harris -- has a quick give-and-take with Palm Beach County canvassing board lawyer Andrew McMahon. Michael Mullin, representing the Nassau County board, says that he will easily and handily dispatch the Gore complaint against his board.

Then there are the lawyers for "the voters," including Larry Klayman from the conservative group Judicial Watch. One from their number -- before discussing Snowball and Napoleon from George Orwell's "Animal Farm" -- offers the names of the Panhandle Floridians he's there for, and notes that Sauls "allowed them to participate in the proceeding ..."

"Limited participation, yes," Sauls interrupts pointedly.

After all, the two scions vying for the position of leader of the free world have lawyers with matters to attend to. So at one point Klayman is politely told to to sit down and shut up.

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Throughout the day, a cluster of protesters remains gathered outside the courtroom. Gore supporters are singing "This Land is Your Land," as one from their number strums an electric guitar. The Bush backers hold signs jeering Gore as a sore loser; one from their crowd is dressed as Darth Vader. A man in sackcloth with a 15-foot crucifix argues that only Jesus can bring this nation together.

Inside, the Gore team calls its first witness, Kimball Brace, president of Election Data Services and an expert on punch card ballots.

Brace is here to back up the Gore team's case that dimpled chad is a valid indication of a voter's intent. The Bush team begins with a litany of objections, insinuating that the bearded, somewhat nerdy Brace is a Democrat, and unqualified. Beck gets Brace to use his ballot and machine to vote -- (he votes for Gore) -- and points out that Brace seemed to have no problem casting his vote correctly.

Brace says that it wasn't necessarily all that easy. "Finally it went in," he says.

"'Finally'?" Beck sneers. "'At long last'? Is that your testimony?"

Brace testifies for hours, and signs of weariness begin to appear. At one point, Beck gets Brace to admit that he might ignore a dimpled chad for one candidate if another candidate's chad on the same ballot had been punched out completely.

Though under Zack's cross examination Brace insisted at least three times that a dimpled chad can be a reliable indication of a voter's intent, Beck insists that Brace's admission that a dimple doesn't always mean a vote is significant.

At one point, Brace wishes to open up the punch ballot machine.

"You need my knife?" the hammy Sauls asks, quickly brandishing a blade. Brace accepts it.

I ask a courtroom cop if a lot of judges carry knives.

"I dunno, I never searched one," the cop says. "A couple carry sidearms." The cop takes out his own knife. "We all carry knives in the South," he says, smiling.

Brace opens the machine and chad confetti spills all over Sauls. "I'm putting chad all over your honor's counter," he apologizes. Gore attorneys smile, seeming to think that the fact that masses of chad were built up in this third-party-selected machine proves their point.

There's a 45-minute lunch break. At 2:22 we're back.

Yale statistics associate professor Nicholas Hengartner is next up. Gore attorney Robinson begins questioning Hengartner, whom, he quickly establishes, isn't a Democrat, nor someone being paid for his testimony, nor a Gore voter since he's not an American citizen.

Then to the matter at hand: Hengartner discusses charts that show that there were far more "under-votes" or "no votes" in Palm Beach County than anywhere else in Florida -- an aberration the Gore team wants Hengartner to say can only be because of the county's faulty punch card machines.

Only 0.3 percent of the votes cast in optical machines -- where votes are filled out by shading a circle, like in the SATs -- have "no recorded votes for president," Hengartner says. By contrast, 1.5 percent of those cast by punch card ballots were under-votes or no-votes. And that figure was 2.2 percent in Palm Beach County.

Beck comes at Hengartner hard, too, seeking first to paint his knowledge of the undervote figure as incomplete, and then going after his credibility.

Hengartner doesn't know about undervotes for other offices, Beck establishes. Why didn't he ask Harris for the data?

He did, he says, but "she was less than helpful."

Beck produces a Hengartner document that the Gore legal team had filed in Circuit Court papers previously -- to Hengartner's surprise and, it would seem, confusion.

Gore's attorneys start objecting frantically. They seem to know what's coming. This may not be specifically relevant to this case, but this 1998 analysis is now being used by Bush attorneys to undermine Hengartner's testimony.

In the draft, Beck points to a Hengartner analysis of the votes in the 1998 Florida Senate race, which seems to have been written to bolster the case that races that appear in the first column of punch card ballots -- like the presidential race in 2000 and the Florida Senate race in 1998 -- often didn't register because of "chad buildup," which blocked voters from poking the stylus through the chad completely.

Jefferson and Boies whisper to one another frantically.

Using a projector, Beck shines the offending graph onto the wall.

"A closer inspection of the Palm Beach County ballot reveals that the senatorial race was recorded in the first column and the gubernatorial race in the second," it says. The document goes on to say that "it seems unusual and indicates that the punch card reader does not record all the votes cast in the first column."

"You bought into their hypothesis about the lefthand column," Beck presses.

"I am trying to put one and one together," Hengartner says in his stilted English.

"You haven't inspected the ballot," Beck asks, even though Hengartner's statement said that "a closer inspection" of the ballot helped prove the Gore team's thesis. "Have you?"

"I have not seen the ballot," Hengartner admits.

Well, guess who has? Beck says that he subpoenaed the elections board and has a copy of the ballot from November 3, 1998. With Sauls' permission, he approaches Hengartner on the stand and shows it to him.

Both the Senate and the governor's race are listed in column 1.

bum-bum-BUMM!

Jefferson stands; he wants to see the ballot.

"It's the only one we have," Beck says mockingly. "If you want to come up here and stand with us, I sure invite you to."

"You said in your statement that what was in column 1 was in column 2," Beck charges. "That just wasn't true, was it, sir? You never even looked at the ballot. When you signed that sworn document, you were relying on the Gore legal team to give you the straight facts, weren't you?"

It's a pretty devastating moment, and Hengartner leaves the courtroom visibly rattled.

I've seen it a million times in D.C.: Democrats can be so fucking sloppy.

The Republicans get to call their witnesses now, and they start with Burton.

Since Boies is off to prove that the Palm Beach canvassing board shirked its duty in counting all the votes, the GOP has changed its tune on the all-Democrat board, which Bush spokesmen vilified just weeks ago. But ever since the board only found 200 or so votes for Gore in their hand recount (and even those didn't get counted since they weren't sent to Katherine Harris before the deadline set by the Florida Supreme Court) the Bushies have started singing a different tune about Burton et al. Bush attorney Bartlit paints Burton as the exemplar of statesmanship. After the hearing, Beck calls Burton "a thoughtful man who obviously did the best job that he could."

Boies, interestingly, doesn't attempt to undermine this in his cross examination. He decides instead to try showing that Palm Beach found votes -- legitimate, actual, real-life votes -- in its hand recount, thus hoping that Sauls will force the same on the 9,000 yet-to-be-hand-recounted ballots of Miami-Dade.

The clock strikes 6:20 p.m. Sensing no end in sight, Sauls, weary, impulsively hammers it all to a close until Sunday morning, bright and early.

Outside, the attorneys host dueling press conferences, Gore aides talk up a Miami Herald analysis of the 185,000 discarded ballots from all over the state, somehow ending up with Gore winning Florida by 23,000 votes. Protesters chant. The court's officer takes reporters' business cards for the lottery for Sunday seats. The Bush team tries to explain its own contesting procedures it filed earlier in the morning, challenging the election results in Volusia, Broward and Seminole counties. They say it's because in order for Sauls to rule in Gore's favor, the outcome of the election needs to be in question; by throwing these counties on the table it will become clear that anything and everything can be disputed when you get down to it.

Meanwhile, the lovely little town of Tallahassee is hosting a parade and winter celebration. Citizens have a fun-run, cheered on by spectators, while rides and treats and festive lights wow the town's kids.

As the town joins together to light the ceremonial Christmas tree, locals seem happily apathetic about the political and legal manipulations taking place only yards away.


Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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