Wa Gov: Day Three Wrapup

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[next in a series covering the Washington State 2004 gubernatorial election contest trial, being conducted in Wenatchee, Chelan County Superior Court , before Judge John Bridges. Previous postings in the series:

Day Three Morning Session
Day Two Wrapup
Day Two Morning Session
Day One Wrapup
Day One Morning Session]

The afternoon session continued with cross examination of Nicole Way, the mail ballot supervisor. Counsel Hamilton for King turned the talk away from nasty misfilled forms and totals reconciled on faith, and starting asking Way about some OTHER votes that never got counted because of entirely different mistakes--that their signature records were lost. If alleging outright ballot stuffing is the loopiest idea the Rossi team has presented in court, asking Judge Bridges to initiate a new canvass on ballots found in March--as a result of King mistakes--is, well, let's put it in the St. Jude realm.

But as we've seen, Bridges is happy to hear any old nonsense anybody wants to spout, as long as he doesn't have to rule on its veracity or relevance. So as Hamilton tried to get Way to verify a signature match from Washington DMV records to a mail ballot signature, and the Rossi team immediately objected, Bridges ruled to allow the airing of the question without commenting on the utility of the answer.

Note that Hamilton and King certainly have a logical point; if the issue is truly supposed to be who won, then any ballots outstanding or not fully ajudicated should have the chance for review. And since there is other documentary evidence (ie signatures) from an official source that would confirm some of these as uncounted but legal votes, why not count them? But logical points are not necessarily legal points, and while I don't believe the RCW gives any direction about an initial canvass specifically in a contest trial, there is something not kosher to me about reviewing ballots in the contest of an election in which the ballots in question were thought not to exist. There are deadlines for causes and claims and depositions and evidence; why should new ballots suddenly be introduced into what is supposed to be the analysis of the prior certified result?

Bridges took matters into his own hands for the first time in the trial today, choosing to ask Way a series of questions towards the end of her long time on the stand. The following exchange is what I'd call shorthand verbatim--I've constructed sentences from sentence fragments, adding only as much verbiage necessary as to make it readable.

Bridges:  Where did you collect the total number of ballots for that form?
Way: Off of our website.
B: Any sense that the number is accurate or not?
W: (response not heard)
B: On ballots returned--that number is not right?
W: Correct.
B: Why?
W: Because of the 95 ballots found later.
B: Other than that, to the best of your knowledge was it right?
W: Yes.
B: How was this arrived at?
W: It was tabulated in the DIMS plus the rejected.
B: Was the total of rejections a hand count?
W: Yes.
B: Was there a subsequent mail ballot report?
W: No.
B: Have you prepared ballots like this before?
W: Yes.
B: Same method?
W: (missed) this time.
B: How was it different?
W: Before, we had verified numbers.
B: Whose idea was it to install the DIMS?
W: Not mine!  [emph me]

OK, so here is where the trouble started. Way's testimony that she did not know the report was wrong before the 95 were known of, set off bells at the Rossi table. But before that, Durkan had an exchange to clarify the total ballots figure:

Durkan: You got the website number from the data guy (first name) Turnbull, right?
Way: Yes.
D: And Turnbull met with Pierce County on ways to get around the DIMS, right?
W: Yes.
D: So Turnbull's number was the best we had?
W: Yes.

Durkan's point here is twofold: first, she wants to get across that this was not the case of taking one number and instead using another, or using a number Way and Fell knew was not correct, but using the best number they had given a ballot accounting system that could not give them a definitive number. Secondly, after having been shot down mentioning Pierce County to her in the morning, she wiggles the reference in again, with better results. Obviously, her intent was to point out that Pierce also uses the DIMS, and feed the larger meme that King was not an island of incompetence in a sea of superefficient County Auditors.

So having waited patiently during this exchange, Rossi counsel re-read a portion of Way's earlier testimony to suggest a contradiction. I believe the attorney here would be Harry Korrell from the morning session:

Korrell: Did you have a discussion with anyone about the total number of ballots?
Way: Yes.
K: With who?
W: Garth Fell.
K: What was discussed?
W: How to fill out the report because we didn't have an accurate number of ballots returned. [emph me].

That last exchange, particularly Way's last response, I believe I got down verbatim. The conflict over this particular point in time will only deepen when Fell testifies.

The final witness of the day was Clark Bensen, a statistician/programmer type the GOP had brought forth to identify the nature of the absentee ballot discrepancy they claimed, and also to show where those discrepancies were concentrated, and how. This was viewed as outright dirty pool by the other side, and they sought no fewer than a dozen times to have Bensen's testimony disallowed or stricken, on the basis that he was a fact witness, but the Rossi team was having him testify like an expert witness.

[I should say here that my earlier waffling over whether the Frye hearing had begun, was complicated by this very problem--if he was an expert witness, weren't they hearing evidence needing to be validated by Frye? Because he was merely a fact witness, however, the hearing did not start today.] Counsel Burman tried to get an immediate Frye hearing on Benson by bringing in their own expert to show how Bensen was going to act like an expert, but I sense Bridges was far and away too fatigued for that kind of show. Frankly, in my short understanding of the concept, the hearing is to vet the quality of evidence, not the qualifications per se of the person presenting it. Burman's worry was also that the whole point of introducing their evidence was to enter the claimed 875 mail ballot discrepancy into the record as illegal votes, which he considered well out of bounds, since they had not been so presented before trial. Oh, and let's not forget that the discrepancy is based on voter crediting figures, which Bridges had already ruled were insufficient to identify illegal votes.

To make a long story short on Bensen--who will return tomorrow morning for cross-x by Burman and perhaps the SoS--Bridges overruled almost all of the objections, but did the classic TV-judge thing by warning the counsel and witness not to push their luck. He used a phrase that I was hoping Postman was in the bathroom for when he said it, but alas it has now become well-known due to its appearance in the dispatches: "like licking honey off the edge of a razor blade." Bensen got to testify, minus one scatterplot that looked too much like deep thinking had gone into it.

What did he purport to show? That five precincts with the most ballot overages were Gregoire precincts, and the six precincts with the most ballot underages (more voters than votes) were Rossi precincts. And that was it. That was the extent of the fraud case on those ballots, that the Republicans plan to show. If you don't know the answer, you must assume it's hanky panky, they seem to be saying. For this response from Bridges, I'll gladly steal from Postman: "He said Bensen could testify about the numbers and added, 'whether that has any meaning in the ozone is something that will remain to be seen.'" He also had some sharp words for National GOP superscheisster Mark Braden: "I hope I don't hear often that Mr. Braden has neglected discovery needed to be passed on." That was another complaint over Bensen's testimony--that some of the info he was presenting was not received by the other parties, in their estimation.

At around 4:40 pm, Burman asked to recess for the day in order that they could prepare a response to Bensen's testimony. Bridges agreed, but cautioned it wasn't out of pity for Burman, but because he was worn out. I only had the audio at that point, but the sigh of relief was audible.

Just before the mikes went out I believe I heard Burman suggest a time of 8:30, whereas the three previous mornings had started at 9AM. So if you're planning to listen to the cross of Bensen, make sure to check in early.

--TJ

Comments

[bluesky]

Excellent recap. Regarding Ms Way's apparent self-contradiction about whether the number of returned absentee ballots was accurate or not, it seems to me that the problem was in her poor choice of words. She is not a lawyer. She is not a politician. In her deposition she had noted that she was "concerned" about the accuracy of that number because she had nothing with which to compare that number. The DIMS software was new and had no known reliability for them. In her testimony yesterday, she stated that she thought that number was accurate until they found out about the 95-96 recently found absentee ballots.

So her pre-trial "concern" about accuracy is seen as an absolute, that she didn't know the number. Which flies in the face of her courtroom statement that she thought it was accurate until she learned of the additional ballots.

The previous day Repubes clearly tried to make Huennekens appear to be inept and not in control of the election situation. His "problem" is an unfortunate geeky or nerdy demeanor and a hesitant, halting way of speaking that makes him seem evasive. His testimony followed a very crisp and riveting testimony of the Chelan Co Auditor, Evelyn Arnold. She answered the questions clearly, with complete control, and claim of a perfect election outcome. Well, now, Ms Arnold has been Auditor for 15 years. That is an elected position. She is used to, and comfortable with, public speaking and explaining the complexity of voting process. She did admit, though, that the bigger the voting base (Chelan Co.'s 29,000 cast ballots vs King Co.'s 900,000) the more problems will arise.

I would not want to be in either Huenneken's or Way's situation, being grilled for six hours (after who knows how many hours of deposition previous to the trial) by hostile attorneys trying to trip you up. I felt so sorry for them, and had much empathy. They are both civil servants trying to do the best they can. Not politicans or attorneys with glib and golden tongues. Or in the case of the Republicans, sinister (to use Dale Foreman's word) and black tongues.

Feh on this Republican sham.

[Zap]

I'm beginning to wonder how the eventual, and I think obvious, outcome to all of this weighs nationally. Perhaops, the best thing Torrid, Goldy, and Carla have done is create a point by point database for talking down the angry mob who will conclude, with limited evidence, that this is an obvious case of a liberal judiciary overthrowing democracy in Washington.