Isopatch, you correctly estimated that the false affidavit regarding the Illinois case on dimpled ballots would become an issue. The National Legal and Policy Center just brought a complaint against Gore attorneys requesting "that the Bar Counsel of the Florida Bar initiate an investigation into apparent professional misconduct of Respondent-Attorney David Boies and Respondent-Attorney Mitchell W. Berger pursuant to the Rules Regulating the Florida Bar."
nlpc.org
Excerpt from complaint:
The Illinois case referred to in the article is Pullen v. Mulligan, 561 N.E.2d 585 (Ill. 1990); it was cited by the Supreme Court of Florida in Palm Beach County Canvassing Bd. v. Harris, No. SC00-2346, at 34-35 (Fla. Nov. 21, 2000). To add credibility to the Chicago Tribune article, consider another source5 -- the following is from a November 25, 2000, Washington Times article:
Attorneys for Vice President Al Gore obtained a false affidavit from a Chicago lawyer in an effort to support the contention that dimpled ballots are to be counted in hand recounts in two Florida counties.
The Cook County case cited in the affidavit was quoted by the Florida Supreme Court this week in its decision to allow manual recounts and stipulate a method for discerning voter intent in two largely Democratic counties.
The Nov[ember] 22 sworn affidavit from Michael Lavelle, a Cook County attorney who was representing a Republican plaintiff seeking state office, says that a Cook County trial court accepted indented or dimpled ballots as indicating a voter's intent.
He also stated that the Illinois Supreme Court directed the trial court to "make a visual inspection of each of the ballots unable to be counted by the automatic tabulating equipment and to determine vote intent on these indented or dimpled ballots."
Democrats are battling in circuit courts in two Florida counties to get the dimpled ballots counted as valid in hopes of overcoming the official, though uncertified 930 vote lead of Texas Gov. George W. Bush.
During arguments before the Florida Supreme Court, Mr. Gore's attorneys said that the Illinois Supreme Court ruling "was a sweeping directive to count controversial 'dimpled' ballots, in which ballots were indented but not punched through."
. . . Gore attorneys called Mr. Lavelle--who contributed $1,000 to Mr. Gore's campaign in September 1999--late Tuesday [(November 21)] asking for an affidavit that recalled the trial judge counting indented ballots.
Mr. Lavelle [said] he faxed the affidavits Wednesday morning [(November 22)] to attorney Mitchell Berger, who said he would submit them in cases in two Florida county courts.
But Mr. Lavelle . . . was wrong in his assertion, as was the Florida Supreme Court in citing the case.
"The Florida justices were correct on the citing, but they don't know how correct they are," said Burton Odelson, who represented the defendant in the 1990 lawsuit in question. "The case pertains to counting dented ballots, but the Illinois Supreme Court said that dented ballots should be excluded, not accepted."
"And I think that this will ultimately be the law that must be interpreted here," said Mr. Odelson . . .
Mr. Odelson also swore out an affidavit, asserting that the Illinois Supreme Court case "is cited as precedent for virtually all recount cases since the decision was rendered by the Supreme Court." He also swore that the judge, Francis Barth, in his case did not count ballots bearing an indentation on the ballot, a claim supported by a court transcript.
The judge in the case "counted ballots he found to be of the 'pinhole classification' . . . light could be seen through the pinhole and the ballot was counted."
"It is undisputed that Judge Barth did not count any ballots that contained a 'dent' without some other indication of voter intent," Mr. Odelson wrote.
According to the transcript in the circuit court case upheld by the Illinois justices, the "sunshine
rule" is an assumed presumption of voter intent in the case. No dented ballots were ultimately counted.
. . . [I]n the case of any false affidavit, an effort must be made immediately to "purge the perjury," said a Republican attorney who spoke on background. "Both the person and the people who solicited the affidavit should report it immediately," said the attorney.
Added Mr. Odelson: "It is incumbent upon whoever filed the affidavit to withdraw it."
. . . The Illinois case was also cited in a Wednesday [(November 22)] ruling by Florida Circuit Court Judge Jorge Labarga, who ruled that Palm Beach County canvassing board members could not rule out dimpled ballots in their count. See supra Miller (emphasis added).
A copy of this allegedly false affidavit by Michael Lavelle is attached (Exhibit D). Paragraph five, on page two, states:
The Supreme Court of Illinois directed the trial court to make a visual inspection of each of the ballots unable to be counted by the automatic tabulating equipment and to determine voter intent on these indented or dimpled ballots. The trial court determined that seven (7) indented or dimpled ballots reflected the voter's intent to vote for Pullen and one (1) indented or dimple ballots [sic] reflected the voter's intent to vote for Mulligan. As a result of the visual inspection of the dimpled ballots, Pullen was named the Republican nominee by a margin of six (6) votes.
See Florida Democratic Party v. Carol, No. 00-019324 (07) (17th Cir. Ct. Fla. affidavit of Michael Lavelle Nov. 22, 2000).
According to the reports in the Chicago Tribune and the Washington Times, this statement, under oath, appears to be false.6 Therefore, it appears that Respondent-Attorney Boies and Respondent-Attorney Berger offered an allegedly false affidavit to two Florida courts: the Circuit Court of the 15th Judicial Circuit of Florida (Palm Beach County) (Florida Circuit Judge Jorge Labarga) and the Circuit Court of the 17th Judicial Circuit of Florida (Broward County) (Florida Circuit Court Judge Leroy H. Moe). See supra Greenberg & Mihalopoulos; Miller; Florida Democratic Party (affidavit of Michael Lavelle).
Apparently, Mr. Lavelle agreed that the November 22, 2000, affidavit had problems because he reportedly corrected the affidavit on November 23, 2000. See Rowan Scarborough, "Lawyer Withdraws Chad Vote Affidavit, Democrats Don't; Illinois Case Cited for Dimple Counts," Wash. Times, Nov. 30, 2000, at A16 (Exhibit E) [hereinafter Scarborough]. As the Washington Times article, infra, reports, the corrected affidavit was apparently not given to the Palm Beach County and Broward County Canvassing Boards -- apparently leaving the allegedly false affidavit in place. Id. This fact suggests that Respondent-Attorney Boies and Respondent-Attorney Berger have not taken remedial measures to address the allegedly false affidavit -- at least with respect to the two Canvassing Boards and possibly with respect to the two Florida Circuit Courts (however, note that the Florida Circuit Courts were not mentioned in this latest article). See Fla. Bar Reg. R. 4-3.3(a)(4) (2000); see also supra Scarborough. The known facts about the corrected affidavit, according to the Washington Times, are as follows:
A Democratic lawyer has retracted a sworn affidavit that the Gore campaign solicited and then used to persuade two election boards to count slightly indented punch-card ballots as votes.
The lawyer, Michael Lavelle, faxed a corrected affidavit Nov[ember] 23, but Democratic attorneys never forwarded the document to either the Broward or Palm Beach County election boards, according to a Republican attorney monitoring ballot hand counts in those two jurisdictions.
Democratic attorneys used Mr. Lavelle's first affidavit to persuade the Broward board to change its policy and count ballots whose punch-hole chad had been merely indented, but not detached in any way.
. . . The Lavelle affidavit was personally requested by Gore attorney David Boies for submission to the state Supreme Court and the canvassing boards. It involved a 1990 election case in Cook County, Ill., in which the two Republican primary candidates had their election decided by a county judge and then the state Supreme Court.
. . . In his corrected affidavit addressed to the Florida Democratic Party, Mr. Lavelle said he realized his mistake after a Chicago Tribune reporter read him the original court transcript. Said Mr. Lavelle in his second affidavit, "My mistaken recollection was that the trial judge counted 'indented or dimpled ballots' where light did not shine through. In fact, the trial judge only counted 'indented or dimpled ballots' that light could pass through."
Authorities on punch-card voting say ballots through which light can be seen are "detached chad" and ballots that have only indented chad are "dimpled." See supra Scarborough (emphasis added).
To summarize, it appears that Respondent-Attorney Boies and Respondent-Attorney Berger offered an allegedly false affidavit to two Florida courts,7 and there has been no report that Respondent-Attorney Boies or Respondent-Attorney Berger has taken remedial measures to address the allegedly false affidavit. |
