The attorneys in the Calista case decided not to cross* the Board members today, so there were no witnesses. Instead the court went directly to the dispute between the East Anchorage plaintiffs and the Board. And they were done before noon again.
*or maybe it was redirect, it's hard to keep track in this case were direct was taken in documents.
The debate was reminiscent of most of the pre-trial hearings. Plaintiffs complaining that the Board's attorney, Matt Singer, was holding up information they needed and Singer talking about attorney-client privilege, or saying he's doing things as fast as he can, or it's someone else's fault - like the transcription company for not having the November Board meeting transcripts ready yet.
I went away scratching my head. I've been avoiding writing anything all day because I'm conflicted between yelling and screaming what I think and trying to say what I'm thinking in a serious objective sounding voice. And I'm never 100% certain I'm right.
Actually, I think trying to present a reasoned, logical approach when one side is being unreasonable is not really an objective approach. It's biased by some presumed journalistic or academic belief that one has to pretend to be 'professional' and ends up making the unreasonable person seem more reasonable. Four years of reporting on Trump should have taught everyone that.
On top of this, there has been a pause in posting the trial documents online. The last document posted was dated January 20. I got an email reply today from the clerk saying they should be up by this evening. Well, they were today, earlier rather than later.. But now there's fifty or sixty - not going to try to count- new documents. [I went back and counted. I guessed pretty well. I counted 59 new documents since 1/20/22] The ones I've been most interested in seeing were Holly Wells' request which we've been hearing about to be able to use data that the Board only recently released and the Board's response that it shouldn't be released.
Let's stop here and look back at what I posted on January 19, two days before the trial began:
"Observation: It's gotten clearer and clearer that the Board's attorney's strategy has been to keep the plaintiffs from getting the information that they need. The plaintiffs have been asking for these emails for a month now and when they are finally delivered to the judge the Supreme Court puts a stay on them."
"These emails" in the quote are the many emails of the Board members and staff. The Board's attorney claimed attorney-client privilege protected many of them, so his office had to go through the tens of thousands of pages to determine which were protected and which could be released.
The other attorneys protested that
- this would take much to long and
- how would they know he had properly determined which should be protected
They wanted Singer to turn them over to the judge and let him evaluate them. There was a motion to that effect. Singer opposed it. The judge finally ruled in favor of releasing the emails for the judge's review. Singer asked the judge for a stay until Singer could appeal to the Supreme Court. Judge Matthews did not grant the stay. Singer asked the Supreme Court for a stay, which he got. But then the next day the Supreme Court vacated the stay and upheld Judge Matthews decision.
But that meant that Holly Wells and the Anchorage plaintiffs had already had their day in court (Friday January 21) before the judge had a chance to even start looking at the emails, let alone release the approved ones for attorneys to look at for things that would be useful to their case.
Singer has a set of stock excuses.
- And now at the last minute
- Just before the trial is about to begin
- They could have done this long ago and only do now they . . .
Today we heard:
"I’ve been accused about everything but being mean to puppies. Counsel wants to make this about the board’s attorney, not the Board. ... come in after case is concluded and makes false accusations based on counsel's mistakes. No new information, no new data."
"Shortly after trial on January 21, 2022, the Board produced email correspondence providing evidence that the Board was considering, or was at least presented with, race data regarding Anchorage districts. Despite receiving this data, the Board did not produce this data or acknowledge the Board’s reliance or even awareness of such data during discovery.4 The data table provided to East Anchorage Plaintiffs from the Board, and relied upon by East Anchorage Plaintiffs’ expert, and the tables contained in Exhibits 1013 and 1014 indicate that a unified Muldoon senate district would have a minority voting age population of 49.31 percent, just under the threshold for a majority minority district. The Board’s Exhibit 1007, however, resulted in a minority “Voting Age Population” of 51.28 percent."
She also said she couldn't wait to be deposed. But all we know about her deposition on the East Anchorage case is that Singer told her not to respond numerous because of attorney-client privilege.
But those statements as well as Board member Melanie Bahnke's suggest things happened in the Executive Session that the public ought to know.
The Judge said he would decide on Wells' motion later today. It's 8:30pm in Anchorage now and there is nothing new posted. The judge has been leaning toward getting more information rather than less for his decision so he can leave as complete a record as possible for the appellate court (that's what he says, but in non-legal jargon it's for the Supreme Court.] So I suspect he'll say yes, but nothing is certain. When they were talking about scheduling the rest of the trial days, Wells did request time on Saturday if the judge approves her request for an amended. [I just got to see these documents today. The first was titled:
"MOTION TO AMEND APPLICATION TO EXPAND EQUAL PROTECTION CLAIM TO INCLUDE DILUTION BASED UPON RACE DUE TO NEWLY-DISCOVERED INFORMATION"
The second is an amended version of the first one.
Valdez attorney Brena raised another point today, alerting the judge he was filing a motion relating to Singer's letter about conflicts of interest.
This came up because Brena had questioned Board chair Binkley about the decision to move Cantwell into D36 so that all the Ahtna communities would be in one district. When you were advised by your attorney on this, "did you know that he represents Ahtna in two cases that are currently before the Alaska Supreme Court?" Binkley said he wasn't aware of that. In redirect Singer revealed that his firm had sent a Conflict of Interest disclosure letter when they were chosen to represent the Board.
Brena apparently asked to see the letter and now there was some confusion if there even was such a letter. Singer, it seems from the conversation had told the plaintiffs attorneys it was in the emails and to just look for it. Stone, Mat-Su's attorney, said they had gotten a bunch of individual emails so you couldn't search the whole file. The judge put it back on Singer to have someone in his firm at least find the date of the email because they have them searchable. [See why it's so hard to write these? There's trivia and a bit of meat mixed in. I'm trying to get something out before trial starts again tomorrow.
Brena had clearly gotten under Singer's skin with this. He responded:
"This is manufactured nonsense. Trying to make it about me. My representation about unrelated matters. Nonsense."
Matthews: You questioned your own witness about conflict letter. Only to convey to court, we understand 1.7 conflict with Ahtna and don’t have such a letter. He can ask.
Matthews: You answered first question about whether there is a letter.
Singer: My firm has relations with Calista. We have conflict letters. My client relationships were discussed with the Board at my interview. Not obligation in the middle of the case [to disclose] on an unrelated [matter.]
As you can see, there are missing words, which is one reason I've been reluctant to post my notes.
But first he said there was a Rule 1.7 Letter. Now he's saying it was disclosed in the interview (which wasn't open to the public.)
Brena kept up on this a bit and then Singer said:
"Mr. Binkley was informed, it just wasn’t important to him. I’ve been accused about everything possible."
Do we hear a hint here that Singer is frustrated with Chair Binkley?
It was at this point that Brena followed up on Singer's earlier comment on puppies,
"I don’t know how you treated your dog. But I'm sure you’re a good dog owner."
At that point Judge Matthews intervened
"I recognize this puts a strain on everyone. Nerves get frayed and it's easy to make accusations. But as professionals you treat each other with courtesy and try to make the about the issues, not about clients [I thought he said each other but my note says clients.] [But, of course, when] appropriate to your clients' rights and then appropriate."
In Singer's behalf, and I've mentioned this before, he's got five plaintiffs - some of whom have more than one attorney's sitting in - and five cases that he's defending against. Sort of like one chess player playing five simultaneous games. The plaintiffs only have to worry about their own cases, but they get to listen in and ask questions of other people's witnesses. It can't be easy.
It makes me think of long ago when I played on the Econ Department's softball team - The Invisible Hand. One player would regularly get called out and he'd jump up and down and yell at the ump and make a big spectacle before coming back to the bench. Back with his team he'd smile and admit he'd been out by a mile.
Singer reminds me of that guy. This is a game about winning and losing. It will go on his win-loss record and he's going to pull out all the tricks he knows. In this case, apparently the evidence isn't in his favor, so he's doing his best to block access. I understand that attorneys are obligated to do all they can to win for their client. But his client is not going to go to jail if they lose this case. At worst they're going to be required to make some changes on the maps and they'll have to have more meetings.
Wells, on the other hand, seems like she's really fighting for what she sees as an injustice. She's not calling Singer names, though she has called out his tactics and even questioned whether he was he was being straight with her over whether things exist or not. She stays on track citing the law and facts and doesn't make expansive claims.
Brena is probably closer to Singer's style, but he's a lot smoother. When he throws a curve ball, he keeps a straight face and even tone of voice.
I do also want to say that I'm impressed the way Singer's partner Lee Baxter questions witnesses. He's quiet and respectful and sounds genuinely concerned about the welfare of the witness and the truth.
Sorry this rambles a bit. Am I biased against Singer's clients? I did follow the Board's activities from early on. I had cordial contacts with the staff and most of the Board members. And I'd point out that two of the Board members argued Wells' case at the Board meeting right after the Senate pairings. But my comments about attorney strategy and demeanor are based solely on what I've seen in the pre-trial and the trial. Just my impression.
