Down & Dirty (81 page)

Sunday morning, back in Miami, Zack’s colleague Altman is still looking into John Ahmann’s stylus patent when she finally
finds the U.S. Patent and Trademark Office’s Web site.

Bingo.

The Bush team’s star witness—there to reassure Judge N. Sanders Sauls that everything was totally cool with the punch-card
ballot devices—holds two patents for instruments designed to vastly improve said devices. And in order to secure the patents,
Ahmann slammed the original voting machines he was in the courtroom to laud. Ahmann’s deposition before the patent office
reads like Zack had written it himself.

Altman, a registered Republican who voted for Gore, is pleased with her discovery. But she’s even more worried about how she
can deliver this information to Zack, who’s already in the Tallahassee courtroom. Zack’s cell phone is off. Its mailbox is
full.

Altman frantically calls Berger’s law firm on Monroe Street in Tallahassee. She faxes the information to them and begs them
to rush it over. Jessica Briddle, a Gore recount-committee staffer, grabs the material and sprints down Monroe Street to the
courthouse. Near the elevators, she gives it to Jeremy Bash, who gives it to Gore attorney Andrew Shapiro.

In the courtroom, while Ahmann is being sworn in, someone—Zack’s still not sure who—puts the file on his lap with the typed
note Altman had sent: “Steve, urgent, read now.”

Zack does.

Beck, meanwhile, is doing direct examination of the bolo tie–clad Ahmann, who says that “it punches real easy….I seriously
doubt that the voter would be unable to push through on a normal voting device.”

As for the theory that chad buildup under Gore’s name prevented people from voting for him, Ahmann says,“I do not believe
it’s possible…. I know no way that could happen.”

What about if, as Zack yesterday pointed out can happen, the device hadn’t been cleaned out in a decade?

“I would first say, no,” Ahmann says, “but then that would also depend on whether you had an election every week, or if you
only had an average of two or three elections a year….In order to fully fill it up,you could go fifty years.”

In Miami, Altman isn’t even sure if Zack has gotten her fax. She’s watching the trial on MSNBC, but it has switched to a commercial
break or different programming or something. So she switches to C-SPAN. Zack’s on his feet now, cross-examining Ahmann.

“Would it be relevant to you to know that the machines purchased by Palm Beach County had an inferior plastic, a harder plastic?”
Zack asks.

“It’s not unusual that when a manufacturer puts out a product that the initiation of that product might not be perfect,” Ahmann
says. “When IBM first came out with its Votomatic, it had to be reworked, and that’s when I got involved.”

Zack smiles. “I really appreciate your mentioning that,” he says, trotting out Ahmann’s October 27, 1982, patent application.

Klock objects on behalf of Katherine Harris. Of course; shouldn’t the lawyer for the chief elections officer of the state
try to hide problems with the Votomatic from the court? I guess this one thinks so.

“Overruled,” Sauls says.

Zack starts to read his patent application back to Ahmann.

“Could I have a copy of whatever documents are being read from?” Beck asks.

Now it’s Zack who can cockily say, “I only have one copy.”

Zack continues quoting the application.

“The material typically used for punch board and punch card voting can and does contribute to potentially unreadable votes
because of hanging chad or mispunched cards.

“If chips are permitted to accumulate between the resilient strips, this can interfere with the punching operations and, occasionally,
it has been observed that a partially punched chip has been left hanging onto a card,
after the punch was withdrawn, because the card supporting the surface of the punch board had become so clogged with chips
as to prevent a clean punching operation. Incompletely punched cards can cause serious errors to occur to the data processing
operation utilizing such cards.”

Zack next questions Ahmann about his stylus patent, which Ahmann says was designed to “align better” than the styluses used
in Miami-Dade County.

“We wanted to reduce template wear, which will keep the stylus on the chad, so that they have clean punches rather than gouges,
or pinholes, or hacking chad,” Ahmann says.

In his final question, Zack asks him about the need for manual recounts after elections “when you have hanging chads… lots
of them because machines aren’t tearing them off correctly.”

To which Ahmann replies, “You need either reinspection or a manual recount if you have that situation, yes, you do.”

Precisely the opposite of what the Bush team wants him to say.

“Any redirect?” Sauls asks Beck.

Ahmann is now a witness who might say anything, Beck thinks. Sure, what Ahmann said will have limited, if any, impact on Sauls,
but Beck knows this is a big PR loss. Time to pull out.

“No, Your Honor,” Beck says.

In Miami, Altman is loving it.“The person had gone up on the stand and said X, when in fact, in a sworn deposition before
the U.S. patent office, he had said Y,” she’ll later say. “Lawyers dream about impeaching someone that way.”

Though GOP attorneys are quickly dispatched to the TV cameras to compare the old punch card–ballot devices with other fully
functional though not quite cutting-edge machinery—windshield wipers without the “blink” mechanism, for example, or black-and-white
televisions—members of the Gore legal team are clearly delighted with Ahmann’s testimony. And TV pundits start saying that
maybe things have finally shifted Gore’s way.

After Ahmann’s testimony, a beaming Zack leaves the courtroom during a break and gushes to the media. “We feel that’s it,”
he says. “It goes to the fact that there was a problem with the machines. And it proves that in a close vote, you gotta hand-recount
the vote.”

In the court administrator’s office, Ginsberg approaches Beck.

“Did you know about the patent?” he asks.

“I knew about the patent, but I hadn’t seen this document,” Beck says. “I don’t think it’s going to be a significant deal,
though.”

Beck explains: Whether John Ahmann thinks hand recounts are a good idea in a close election makes for good television, he
says. But it will mean absolutely nothing to Sauls, who’s trying to decide whether these county canvassing boards abused their
discretion—discontinuing the hand recount in Miami-Dade or applying a more rigorous standard in Palm Beach. Yes, it’s going
to be played as a big deal in the press, and everybody’s going to be saying that John Ahmann flipped us on this key point.
I know it’s going to be played as a
Perry Mason
moment—especially because Boies and Zack are good at manipulating the press—but I also know it’s not going to impress Sauls
at all.

Ginsberg nods his head. “Yeah, you’re probably right,” he says.

The day goes on. Beck calls to the stand William John Rohloff, the Broward County cop Scherer found who claims that on Election
Day he placed the stylus over Gore’s chad and withdrew it because he just
couldn’t
bring himself to vote for Gore. Rohloff now fears that he left a dimple that the Broward County canvassing board may have
erroneously deemed a Gore vote. It’s probably safe to say that voters like Rohloff are about as common as a day Katherine
Harris avoids eyeliner, but the point is that the Republicans have found him, and here he is.

Laurentius Marais has a teddibly erudite-sounding South African accent and a distant, callous bearing; when he steps up to
testify, the temperature in the room drops 10 degrees. Douglass passes a note to Miami-Dade County attorney Murray Greenberg
that Marais “would fit right in with the Third Reich.”

That’s a bit harsh, but Marais does seem like a precision-oriented SOB, handily sneering at many Gore claims as bad science
and incomplete research, repeatedly dissing Saturday’s testimony by Hengartner, implying that it was “slipshod and slapdash.”
He also says that “it would be a factor to consider” that there were so many undervotes in Palm Beach because—as Beck hypothesizes—some
voters were confused and “may have just thrown their hands up in the air and said, ‘I can’t figure this out; I’m not going
to vote for any of these guys.’”

“From a statistical point of view,” Beck concludes, “is there any valid basis for drawing the conclusion that people were
in the Votomatic voting booths trying to vote for Al Gore, but they simply weren’t able to push the stylus through the chad?”

“Absolutely none,” Marais says.
Brrr!

On cross-examination, Boies tries to slam Marais as the statistician
equivalent of a hit man. He paints Marais as someone who makes a living out of killing the testimony of other statisticians
at the behest of evil interests, claiming that whatever he’s hired to dismiss “does not meet your standards as to a thorough
scientific analysis…. For example, you testified that certain statistical analyses that linked lead paint with injuries in
children didn’t meet your standard for statistical scientific analysis, correct?”

At this, Beck jumps up and objects.

Boies “is trying to tar him,” Beck charges, asking Marais to discuss “a case Mr. Boies thinks would be unpopular with the
public, and that doesn’t have any relevance here.” Beck asks Judge Sauls to direct Boies to stop dragging in other cases,
to “admonish” Boies to take issue with Marais’s methods and his methods only. “Otherwise, all he’s doing is grandstanding,”
Beck says.

“Your Honor,” Boies says, “I’m not grandstanding.”

But Sauls sustains the objection. Marais’s whoring for the lead paint industry is not relevant here.

Beck objects again when Boies describes something Marais has said in a way Beck thinks is misleading. Boies allows that maybe
he’s confused about the matter, but before Marais can clarify, Sauls jumps in and lays out all the arguments Marais had made.

I wish I’d said it that well, Marais jokes.

Sauls’s comments impress the hell out of Beck, and reassure him that the judge gets it. “If anybody thinks this guy is anything
other than a sharp guy really paying attention, they’re wrong,”Beck thinks.“He’s paying more attention than anybody else in
the courtroom to what’s being said on the stand.”

Irv Terrell calls GOP Miami pol Tom Spencer to the stand. Spencer was an observer in Miami-Dade throughout the canvassing
board’s fickle month, and he basically reads excerpts from hearing transcripts, establishes that Democratic judge King pushed
for the recounts while independent Leahy didn’t want to do them at all. Spencer seems like a straight shooter, a friend of
Leahy’s, and Terrell picked him to help tell the Miami-Dade story precisely because of that. Spencer says that there were
lots of problems during the hand recount, that on November 19, “an entire tray of ballots from precinct two hundred fourteen…
fell and splashed all over the floor and was picked up, and then put back in the tray in order.”

And then comes Tom Spargo.

Terrell had the Miami-Dade “intimidation” part of the case, and he privately considered it to be probably the Bushies’ ugliest
moment. He spent
the week talking to Miami-Dade GOP witnesses and, frankly, found a lot of them wanting. He especially needed someone to testify
that hundreds of chad were spit out when the third machine sort was conducted to sort out the undervotes. Show some evidence
that the process was off the rails, and maybe the near riot would be a bit more excusable. Tom Spargo was the only witness
he had who could testify to this.

Terrell has asked each of his three witnesses the question lawyers always ask: Is there anything—
anything
—in your background,
anything at all,
whether or not it’s true, whether or not it’s been misinterpreted, anything that I should know about that the other side
can use against you? Because you’re about to go on national TV, and if there is anything, it will stain you forever. All three
said no. Nothing there.

Terrell has his suspicions about Spargo, but what can you do, he said he was clean. So he calls him to the stand, and Spargo
testifies about the chad.