Article: The Story Behind The Story of the Cuyahoga County Recount Trial

The Trial

I had just returned from Cleveland back to Texas in the wee hours of Jan. 20th. I immediately wrote about what I observed as a witness at the trial in Cuyahoga County, Ohio of three election employees, who were indicted for not handling ballots correctly during the 2004 Recount.

Since I was called to testify first, I was able to observe the rest of the trial and by the end of the day, the prosecution rested its case. The most gratifying moment for me, however, came during my testimony when after all the videotape I took before and during the 2004 Recount in Cuyahoga County, Ohio, was shown to the jury, even the defense attorney referred to it as the best evidence! All of the witnesses who followed me gave compelling testimony, and the videotape made their testimony irrefutable. Thus, making it impossible for the defense counsel to effectively argue against and/or discredit.

It should be noted that this case is unprecedented primarily because, as Baxter told me, when conducting the legal research in preparation for the trial, he could not find any legal statutes and/or case law that were relevant for his use in the case. He also said that it was the videotaped evidence that saved the day because it not only showed what was said, but what wasn't said, by the election officials before and during the recount and that it literally made it possible for him to prosecute the case.

The defense was scheduled to present its case on Monday (Jan. 22nd). Baxter indicated that due to the videotape and the subsequent witnesses' testimony, he doubts that the three defendants will be able to testify, but if they do, it shouldn't be a long process. He was right. The defense only called two witnesses before resting their case.

The jury rendered its verdict on Wednesday (Jan. 24th), Jacqui Maiden and Kathleen Dreamer were convicted of one the most serious felony counts of negligent misconduct and one misdemeanor of failing to perform duties. The professional misconduct charge carries a possible 6 to 18-month prison term and an automatic termination from the Cuyahoga County Board of Elections. The third defendant, Rosie Grier, was found not guilty of all charges. Both women were released on bail. Sentencing for Maiden and Dreamer is scheduled for February 26th.

Points Not Brought Out in The Trial

An interesting point about the defense's case that should be noted and may be the reason why defense counsel chose not to call any further witnesses on their client's behalf. I was informed by Mark Demarino of Fox TV in Cleveland, who attended the entire trial, that the reason defense counsel, Roger Synenberg, may not have called Elections Director, Michael Vu, nor Deputy Director, Gwen Dillingham, is because Dillingham had pled the 5th at the Grand Jury hearings and Vu, who, although hadn't been called to testify at the Grand Jury hearings, would have pled the 5th too. Synenberg couldn't risk this kind of information getting out for media consumption, because it could very well open the door to more calls for suspicion that what these three women did during the recount was done with the consent and knowledge of their superiors, and perhaps call into question his defense strategy.

Before the trial began and witnesses were called to testify, Judge Peter J. Corrigan (obviously thinking about possible appeals) asked one of the defendants, Kathleen Dreamer, a very important question in an effort to give her a chance to stop the trial from going forward. Since her attorney, Roger Synenberg, had also represented Elections Deputy Director, Gwen Dillingham during the Grand Jury hearings, would she prefer different counsel? Dreamer did not hesitate in answering the Judge, "No. I want Roger". Despite a clear conflict of interest by Synenberg's prior representation of Dillingham (who was Dreamer's superior), Dreamer opted to waive her right to choose another attorney. She may come to realize this as a mistake during the sentencing phase of the trial, which may cause her to tell all that she knows about the circumstances surrounding the pre-count of those ballots, in order to get a lighter sentence. Time will tell.

Unanswered Questions From the Case

Here's an important question that still needs to be answered. Who ordered these women to do this? According to the testimony, the procedures followed had been in place for over 20 years, and there was no evidence presented at the trial that could prove that either Elections Director Vu or Deputy Director Dillingham actually instructed them to follow these procedures. They didn't have to. Amazingly, both Jacqui Maiden and Kathleen Dreamer admitted in their videotaped interview, presented in its entirety at the trial, that the procedures they followed during the recount were not written down. Dreamer said, this is the way it's always been done... Of course, we all know, the whole purpose of procedures is that they must be written down, in order to prevent the actual legal procedures not being followed for any reason.

To make matters worse, according to the defense counsel, these election officials did nothing wrong with "pre-selecting" the precincts that were to be part of the recount. Their defense counsel reasoned that by pre-selecting a 3% of more geographically diverse selection, that was the same thing as it being "random" in accordance with Ohio election code. [Note: Some reports have referred to their pre-counting the ballots as just a violation of procedures, but, in fact, it was a violation of Ohio election code.] Incredibly, defense counsel went even further and argued that the code didn't actually say they couldn't pre-count the precincts, and that the law stated that the observers "may" be present at such a pre-count. In the prosecuting attorney's redirect, he pointed out that the law also stated that before any counting of the ballots chosen for the recount are conducted, all observers must be notified of the date and time of such pre-count. The prosecution witnesses testified that it was never apparent nor were they told by the election officials that such a pre-count had ever taken place. Which leads us to yet another question -- Have they been rigging elections for over 20 years in Cuyahoga County?

More Indictments?

This trial may not be the last we see of this recount, though. Baxter mentioned that there may be more indictments. He wouldn't say any more than that, but I'm hopeful that everyone responsible for helping to facilitate this kind of corrupt environment in an elections department, and for such a long period of time without detection, will be put on trial and held accountable. Otherwise, neither justice nor the truth will have been served in the end.

The Story Behind The Story

What's been the most disappointing aspect of the story about this trial is that the public has not been told the real story behind the story. Unfortunately, that story has been totally overlooked by the media (except OpEdNews!), Internet blogs and by some in the election reform community itself. That story being, this case would never have been brought to trial without the citizens who were observers at that recount gathering evidence and reporting it to the proper authorities, including getting the videotaped evidence, which, according to Baxter, clinched the final outcome of the trial. It was a victory for citizen oversight all the way and that is what makes this story important. This is the time to focus on citizens and for them to take a bow and recognize their own power by reclaiming their rightful role as managers of their own elections. To celebrate what we always knew was possible but had never really proved -- that with transparency, proper access, and meaningful citizen oversight, it required no experts, audits, stats or public records requests to make the case for wrongdoing by election officals and to ultimately, hold them accountable.

As a result of this citizen oversight victory, the hand counted paper ballot advocates should utilize the leverage they now have by quickly pointing out that we were right in demanding this kind of citizen oversight in our elections and we want it back. If we don't take action now, I have no doubt, as sure as God made little green apples, the legislatures across the country will begin passing laws (and they already have in some states) that will specifically prohibit, restrict and/or obstruct the ability for citizens to have the kind of access and oversight I had during the 2004 recount in Cuyahoga County, Ohio not only in recounts but, particularly, in our elections, where this kind of oversight is curiously missing. One thing is for certain, if we continue to let any machine count our votes, that will make this virtually impossible.

I only wish that every person could experience the kind of citizen empowerment I, and the other citizens who testified during this trial, did. As for me, I'm hooked. Anything less in our elections is totally unacceptable.