Day One Goes Against Gore's Gang

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JOHN PENDYGRAFE-ST. PETERSBURG TIMES/AP

The eyes have it: Leon County Circuit Judge N. Sanders Sauls

It wasn't exactly high drama, but it had its moments.

And while the first day of testimony in Al Gore's contest of the Florida election results didn't go quite as long as everyone expected — an increasingly cranky Judge Sanders Sauls adjourned his Leon County courtroom for the night at 6:15 p.m., citing staff hunger pangs — it went long enough to establish a decidedly discouraging trend for Gore's legal team.

It was supposed to be a quick, clean attack: Boies et al. were calling only two witnesses, who were, one presumed, supposed to deflect every GOP criticism and render every doubt moot: Of course there should be a full manual recount in Miami-Dade and Palm Beach counties! Is there another conceivable outcome?

Of course, that's not exactly how it happened.

A Wonk Wilts

The testimony of the vice president's first witness, political scientist Kimball Brace, was breathtakingly inept: The bedraggled wonk spent most of his time on the stand fumbling with 40-year-old voting machines and inadvertently shaking handfuls of chads onto Judge Sauls' desk. By the time Bush attorney Phil Beck had finished his cross examination, Brace had failed to support his theory that there might be structural problems or inconsistencies with the left-hand side of the Votomatic voting machine. He'd also all but admitted there was no reason to doubt the canvassing boards' ability to count their own votes — effectively undermining Gore's charge that a brand-new full recount should take place.

After a 45-minute lunch break, which gave the cable news pundits the opportunity to rehash the first five hours of excruciatingly arcane testimony, Gore's team called their second and final witness: Statistician Nicolas Hengartner.

His responses occasionally hindered by a thick Quebecois accent, Hengartner nonetheless proved an important spokesman for the Gore team — unfortunately for the vice president, the forthright Yale professor proved almost as valuable to the Bush effort. Under questioning by Gore attorney Stephen Zack, Hengartner, who qualified as an "expert" witness, painstakingly explicated a pile of placards bearing simplified bar graphs and carefully highlighted statistics, simultaneously charming the courtroom and making a solid case that the newly famous Votomatic voting machines (used in Palm Beach County) are more likely to fail or register incomplete voter choices than other voting methods.

It's All Quebecois to Me

During his cross-examination, Bush lawyer Beck peppered Hengartner with hypothetical questions relating to the left-hand side of the voting machine, apparently hoping to discredit Brace's testimony but serving primarily to underscore a serious miscalculation on the part of Gore's legal team — which would probably have been wise to have stuck with the Miami-Dade recount as the basis for their contest. Then, instead of wasting two witnesses trying to prove esoteric mechanical flaws of machines in Palm Beach, the Democrats might have scored a few points by insisting they were only trying to procure a first count of 10,000 Miami-Dade ballots.

Remarkably, this concluded the Gore team's testimony, and as soon as they'd officially rested their case, GOP attorney Fred Bartlit sprung from his seat to request a directed (or immediate) verdict on the grounds the Dems had no case. Judge Sauls "respectfully" denied the motion and Bartlit demurred, calling his first witness: Judge Charles Burton of the Palm Beach canvassing board.

Happily for the Democrats, while Burton managed to score a few points for Bush's cause of discrediting the admittedly erratic recount process in Palm Beach ("There's bound to be some opinion involved in situations like this," Burton remarked ruefully during Bartlit's direct) those doubts may be enough to plant a lingering question in Judge Sauls' mind. If all Palm Beach County needed was a set of guidelines to ensure "a fair and accurate" count, could Sauls be just the guy to set such parameters?

A Judge Fest

There was great camaraderie between Sauls and Burton; at one point, Burton shook his head over his attempt to prescribe some order to the Palm Beach recount, saying, "I've been attacked since then as the one who’s tried to block the recount." Sauls took issue with this and replied warmly, "Well, I can’t say I agree. I personally salute you as a great American," eliciting the first smile from an exhausted-looking Burton.

Finally, toward dinnertime, the Republicans called Richard Grossman, a rubber and plastics "expert" whose status as such was immediately challenged by perhaps over-combative Democratic lawyer Stephen Zack, who insisted on conducting a voir dire (to test a witness's expertise). Zack was unceremoniously cut short by a red-faced Judge Sauls, who furiously pointed out the attorney was not asking relevant questions and told him to sit down in no uncertain terms.

So the direct went forward and Grossman told the court more than they'd ever wanted to know about the composition, strength and chemical qualities of the rubber t-strip that's placed under the ballot in a Votomatic machine, testifying firmly there was no way the normal use of a stylus (the tool used to punch chads) could affect the composition of the underlying rubber. This was an attempt to discredit Brace, who'd claimed that overuse can cause the rubber to harden and make it more difficult for voters to punch through chads correctly.

Objections to Objections

By the time Zack stood up to cross-examine Grossman, the lawyer had objected to the expert's testimony five or six times as a departure from what Grossman had explained during a Friday deposition. Sauls overruled the objections time and again, and finally David Boies leaned over to Zack and gently pushed his co-counsel back into his chair. On cross, Zack did get Grossman to admit he had no idea what sort of storage facility the voting machines had been placed in prior to their most recent usage. "Doesn't heat harden rubber, Mr. Grossman? Isn't it possible this urethane wasn't kept in the air-conditioning and it overheated, making it more difficult to use in a voting machine?" Zack demanded.

Zack moved again to have Grossman's testimony stricken from the record, claiming it was irrelevant. Sauls denied his request and told everybody to go home.

Oh, but don't worry. We all get to come back Sunday at 9 a.m.