A Glimmer of Hope for Gore

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Judge Sauls, center, attorney David Boies, left, and attorney Phil Beck, right

The afternoon session

The post-lunch witnesses were markedly less compelling than their predecessors, and Judge Sauls picked up a pace almost as fast as he rocked his chair back and forth behind his desk.

In the course of five and a half hours, the GOP called five witnesses. Three discussed the alleged irregularities they personally observed during the Miami-Dade recount process — including dropping ballot boxes, fanning the ballots like cards, doing pretty much everything short of taking the ballots along with them to the bathroom — apparently hoping to establish the fallibility of human hands when it comes to counting ballots and to discredit the idea of recounting once again.

Hey, Who's That Guy in the Photograph?
One of these witnesses, a Republican observer, a lawyer named Thomas Spargo, was caught off-guard by a photograph presented by the Gore team showing him clapping and chanting with GOP activists outside the 19th floor counting room in the Miami-Dade municipal building. Even the preternaturally dispassionate Judge Sauls was intrigued by the photograph and asked Spargo a few pointed questions regarding the lawyer's whereabouts and intent that day.

Another witness described how he placed his stylus on the chad marked for one of the presidential candidates before changing his mind and boycotting the choice altogether. "And you wouldn't want that mark to be counted for a man you decided not to vote for, would you?" demanded Bush lead attorney Phil Beck, making the prospect sound as horrific as possible. No, the witness agreed, he would not.

Everyone was very careful to praise the work of election workers. A good thing, too, because toward the end of the day, a real-life election worker took the witness stand. Nassau County election supervisor Shirley King sat down to defend her decision to certify the initial machine vote versus the mandated hand recount. Dignified and soft-spoken, King gritted her teeth toward the end of her testimony, telling a Democratic lawyer: "I sent the first numbers because the second numbers were wrong. I'd be very happy to recount the ballots — and I've offered to do so — just to prove the first numbers were right anyway." Oh, and by the way, it turns out that Katherine Harris's office advised King's board to send the first numbers for certification.

Are We Done? Not Exactly

Then at about 5:45, it looked as if things were about to ease up, that closing arguments were looming. But just as quickly, hope was dashed as a barrage of witnesses for various intervening cases were suddenly pushed into the witness box. Every one of them was angry with Gore for suggesting that certain counties should be recounted and not every county. In the words of one witness, who lives in the Central Time zone and says she turned around on her way to vote after her husband informed her the networks had called the state for Gore, "I think my vote should count, too!"

By 6:30, even these witness lists were exhausted, and Judge Sauls started tallying up the times everyone required for their closing statements. The Bush and Gore teams got an hour each, while the various hangers-on picked up anywhere from 10 to 30 minutes apiece.

David Boies plunged into his close at 7:10.

It looked to be a very long night.

The morning session

One thing is certain: Sanders Sauls wants this trial over and done with as quickly as possible.

Sunday morning at 9 sharp, the Leon County circuit court judge got right down to business, asking Bush's legal team to consider trimming their bulging witness list and tapping his fingers on his lectern. "I want to get your case finished this morning, counsel."

That ideal, as it turns out, was a bit optimistic: By the 1 p.m. lunch break, GOP lawyers had called only two of as many as 20 potential witnesses, and Sauls seemed resigned to another long day in his robes.

Another Numbers Man

As soon as the trial recommenced, Bush attorney Phil Beck (who treated Gore statistician Nicolas Hengartner with such disdain Saturday) called his own, heavily accented statistician to the stand. Dr. Laurentius Marais, who spoke with an unidentifiable lilt, was straightforward and extremely convincing as he tried to tear down the basis of the Gore team's statistical argument. The vice president's lawyers, said Beck, are showing us numbers indicating that if all votes were counted, Gore would certainly win. Is their assumption correct?

No, Marais replied. The Gore team's projections, he went on to explain, are unreliable because they are based on three heavily Democratic precincts in Miami-Dade County. If the numbers were divined from a more accurate (less partisan) source, Marais concluded, they would be admissible.

Beck also got Marais to agree with Hengartner's suggestion that there is simply not enough data to determine whether the cleverly named Votomatic is more likely to produce undervotes than other voting machines.

In his cross-examination, David Boies called Marais' logic into question, asking the statistician if he'd ever completed a full analysis of the precincts or counties in question.

No, replied Marais.

Without those numbers, insisted Boies, it's impossible for Marais to present a reasoned objection to Hengarnter's findings.

This cross didn't land any lethal blows to Marais' testimony — but it did create an undercurrent of doubt as to the statistician's claims, which is all Boies could hope to do at this point.

A Man Left to His Own Devices

The Bush team's second witness of the day, John Ahmann, has the dubious honor of being a consulting inventor of and expert on the infamous Votomatic voting machine. (Just for the record, as Ahmann pointed out in a cantankerous moment, "Everyone keeps calling them voting 'machines' and they're not machines at all. They're 'devices.'" Please make a note of it.)

Beck walked Ahmann through a litany of questions, trying to establish the relative delicacy of the ballot. Ahmann admitted that even normal handling can dent, dislodge or dimple parts of the ballot, let alone the vigorous handling inherent in repeated hand counts. You see, Beck seemed to be saying, if even the expert here believes there are marks on the ballots that are in absolutely no way related to voter intent, how can we ask non-experts to differentiate inadvertent marks from intended marks?

The direct questioning session also touched on a variety of chad issues: Chad buildup, chad depletion, dangling chad, chad evacuation.

Gore attorney Stephen Zack, who is possibly the most irritating and sycophantic lawyer to surface over the past four weeks, cross-examined Ahmann vigorously, asking the expert if perhaps the ballot manufacturers were not aware of the rigors a ballot might go through during an election process — implying there was no reason to believe the ballots were so weak they'd just fall apart and be unable to serve their express purpose just because voters and counters were holding them.

At this point, Zack decided it was time to pull out the big guns. He reached behind him and pulled out a piece of paper, from which he began to read: "Mr. Ahmann, is it not true that in 1981 you went to the U.S. Patent Office because you were worried about defects in the voting device you'd approved — and which had been installed and still operates down in Miami-Dade county?"

A ruckus broke out, Phil Beck stormed forward and asked to read the document, which Zack grudgingly permitted him to hold. The surprise statement was allowed — and Zack got Ahmann to admit that his device can lead to unreadable votes due to chad buildup, dangling chads and even rubber problems.

Ahmann was stuck now defending an imperfect machine, whose potential problems suddenly took center stage. After a few direct questions from Judge Sauls, Ahmann even acknowledged a particularly damning flaw: That a small light could show through on a ballot and the machine might not register a vote.

As the court adjourned for lunch, Zack crowed to the press outside: "Their witness just told Judge Sauls to recount those votes."