Gore Lawyer Misleads Court

0 Comments | Insight on the News, Dec 25, 2000 | by Paul M. Rodriguez

When the celebrated Washington lawyer Bob Bennett learned that he had been lied to by his client, and had as a result submitted false information to a federal judge, he knew what to do. Bennett told the court directly that facts he had presented on behalf of Bill Clinton in the Paula Corbin Jones sexual-harassment lawsuit were false. Having known Bennett for 15 years, this editor was not surprised at that display of character.

But compare this with what another lawyer, defending a vice president who wants to be president, has done. He submitted false information to the Florida Supreme Court and at least two Florida canvassing boards responsible for counting voter ballot cards. That same false information was relied upon by the Florida Supreme Court in a highly important opinion, and by others, to justify Al Gore's efforts to have dimpled or dented ballots included in manual recounts.

This false information, as with the erroneous early TV network calls claiming a win for Gore in Florida, had powerful consequences. In the latter case, Republican voters simply turned away from the polling places or left the long lines in which they had been waiting to cast their votes for George W. Bush. In the former, the contrived lie and subsequent failure to face up to it have threatened to overturn a presidential election in favor of the candidate of the lawyer perpetrators.

One would think the press would have jumped heavily on such a story once it was discovered that Gore's attorney, Microsoft prosecutor DaVid Boies, not only filed false information before the Florida Supreme Court and various other officials in Florida but failed to correct the false submissions even after they were exposed.

And what was the false information? It was an affidavit by Michael Lavelle, reportedly a Democrat, who is a lawyer in Cook County, Ill. He was the lead attorney 10 years ago in Pullen v. Mulligan, widely considered in legal circles to be the controlling case in matters related to so-called dimpled- and dented-chad ballots. Lavelle represented Penny Pullen after a Republican primary against Rosemary Mulligan, who subsequently lost the contested race by a handful of recounted votes.

After a late-night telephone call from Boies, Lavelle sent two identical affidavits to the Gore attorney in which he swore under penalty of law that the Illinois Supreme Court and the lower court judge presiding in the contested race had decided it was proper to count dented or dimpled ballots to determine voter intent. But it never happened! In fact, the courts flatly rejected such a standard.

The Chicago Tribune was the first to send a reporter to check the court records and report that Lavelle's affidavit was false. But this was after the Florida canvassing boards, at least one lower court and the Florida Supreme Court had made decisions based on the false information presented by Boies. The wheels were in high gear, but within days there was yet another recount of contested votes in key Democratic counties and Florida Secretary of State Katherine Harris accepted further recount totals but certified that Bush still won.

Though a few news organizations, such as our sister publication the Washington Times, reported the false affidavit and Lavelle's retraction, the story has not been widely published. Why, we don't know. Certainly it should have been, because it is a story that strikes hard at the foremost legal issue in this election contest: Do dimpled or dented ballots count?

But, just as the general press has ignored the story so too has Gore lawyer Boies, who even after receiving a corrected affidavit from Lavelle declaring that in the controlling Illinois case dimples and dents were formally excluded, the Gore lawyer (and the vice president himself) failed to notify the Florida Supreme Court and elected officials. Moreover, Boles has gone on to insist that, despite his own now-refuted evidence, he's still right and Republicans are wrong.

Burton Odelson, the lawyer who represented Mulligan, tells Insight that not only is Boies wrong -- since the controlling Illinois case says "indented chads don't count" unless you can see light pouring through a hole -- his failure publicly to correct the court and canvassing-board records amounts to a travesty of justice. Why? Because the elected officials relied almost solely on Boies' representations based on false information.

Then there's this from another lawyer we've known for more than 20 years. Like Bob Bennett he is a Democrat and a well-respected former attorney general under President Carter. Griffen Bell tells Insight: "I've looked at the case law and you cannot count a dimpled ballot.... Period.... And it seems to me that Florida ought to follow the law" and the guidance of the landmark Illinois case (as Boies and Gore supporters have called it) to disqualify such ballots.

"None of this would be going on if the Supreme Court [of Florida] had let the certification stand as it should have," Bell says. "You can't decide elections in the courts. It's a matter for the legislature to handle. And I think it'll end up in the Congress. It'd be more democratic."