Along with everything else that’s been going on over the past week or two in the criminal investigation hand count of the 2006 Pima County (Tucson), AZ, special election (see our detailed special coverage here and here, with a bit of followup coming tonight, by the way. [UPDATE: Here’s that late report.]), local election integrity watchdog John Brakey has had a trial of his own to contend with this week, following his arrest last September, while serving as an official observer during a post-election hand-count “audit” of the state’s primary election on behalf of both the Democratic and Libertarian Parties.
As The BRAD BLOG reported at the time, Brakey had noticed that a number of ballot bags, selected for the hand-count, had missing or broken security seals on them. When he asked about them, he was promptly arrested on the orders of Pima’s “Election Director Gone Wild” Brad Nelson, a Republican and long-time foe of Brakey’s.
The case against Brakey, heard in court this afternoon, was dismissed by Judge Luis Castillo after the county presented its evidence on the charges of “trespassing,” as we were informed today by Brakey and his attorney Bill Risner, who wouldn’t even need to plead their own case to the judge today…
“The judge dismissed the case on motion of state’s evidence, because they hadn’t produced a prima facie case,” Risner told The BRAD BLOG by phone just after the hearing. Moreover, the judge found “Nelson over-reached as he had deprived the Libertarians of an observer.”
Risner says the court found that Brakey’s actions had led to important improvements in the procedures implemented by the Pima County Department of Elections. The attorney also tells us that he plans to take civil action against Nelson. “We’ll probably be issuing a notice of claim that we’ll sue him for personal damages.”
Brakey was ecstatic. “We really won big,” he said today. “We didn’t even have to put up a defense” since the judge simply dismissed the county’s case after they’d heard it. He added that Nelson “really made a fool of himself” on the stand, and promised that he’d send us some video from Nelson’s testimony, and the judge’s admonishments soon. (We’ll add it as an update when we receive it.)
Brakey becomes the second arrested election integrity advocate in recent weeks to see such charges dismissed following arrests in the course of attempting to observe post-election counting. This past March, Ellen Brodsky, a Florida election integrity advocate — and a candidate for Broward County Supervisor of Elections last November — saw all charges dropped against her, following her arrest last year as she was attempting to oversee the post-election tabulation of her own election.
Last year, Brakey was quoted in video coverage of his arrest, by Tucson’s local ABC affiliate, discussing his “five C’s: character, capacity, credibility, civility, and…citizenship.” He’s added at least one “C” to the list since then, as he explained to us this afternoon: “Courage. Courage is needed to stand up and take on these bullies to regain and rebuild our democracy.”
To hold us over until we have video of Nelson on the stand during today’s short-lived trial, here’s The BRAD BLOG classic of Brad “Election Director Gone Wild” Nelson, completely flipping out following a question from Brakey at a public meeting in February of 2006 (original exclusive coverage and full transcript here)…
LATE UPDATE: David Safier, a witness for the defense who was not called today since the judge ended the trial before the defense put on its case, covers today’s court ruling, and offers an inside perspective on what led to the arrest in the first place, as he was an auditor at last September’s hand count when Brakey was hauled away in cuffs. [Disclosure: Safier also has guest blogged about the Pima RTA election for The BRAD BLOG]. In addition to explaining what happened last September, Safier writes:
…
Brad Nelson comes out looking bad almost every time his work is called into question. And today, in a court of law, Nelson came out looking bad once again.
UPDATE 4/17/09, 11:11am PT: Here’s the video compilation of Nelson’s testimony and the ruling of Judge Castillo afterwards yesterday, Video compilation courtesy of J.T. Waldron, producer of the forthcoming Fatally Flawed, a documentary film on the entire years-long Pima County election nightmare/struggle…
The text of Judge Castillo’s ruling (as heard above):
Attorney Bill Risner’s no-holds barred assessment of Nelson today, via email:
Calls for the removal of Nelson have increased following last years’ arrest of Brakey. The hot-headed Nelson is an appointed, not elected, official. He is appointed by the County Manager who himself is also appointed, rather than elected, by the Pima Board of Supervisors.
As we reported last year, Pima County Supervisor Ann Day said, after a Board of Supes meeting following the arrest: “We’ve taken a lot of security precautions, but there are too many problems, and they keep happening…I think we’ve reached a point where we need a change in leadership. There needs to be trust between the public and the Division of Elections.”
Why Nelson is still in place after all of these continuing nightmares, we couldn’t tell you. It’s certainly long overdue that the Supes take action on behalf of the people to remove both Nelson and County Manager Chuck Huckleberry from the jobs that they’ve clearly bungled for years.
Wish I could have seen it :). I was outside in the hall as a potential witness. Video please!
“Plan A” was to get the county to drop the case. That didn’t happen. “Plan B” was exactly what happened: once the county put on their “case”, Bill Risner argued that there was in fact no case at all and the judge agreed.
That’s not quite “case dismissed”, that’s case outright won.
“Plan C” involved putting on a defense and that would have meant myself, Paul Hilts and David Shafir testifying. All three of us were hand-counters in the audit John Brakey was observing (as both a Dem and LP-approved watcher). All three would have said John wasn’t being any sort of nuisance and when he was actually arrested in the hallway between the two rooms he raised no sort of ruckus at all. I was fairly close to the door and didn’t know until after lunch that John had been arrested.
The other thing Paul Hilts and I would have talked about was the aftermath.
See, among the 19 precincts audited the day of the arrest, a total of 10 had at least something hinky in either their paperwork or seals – basically “chain of custody” problems ranging from seal put on sloppy to more serious stuff like “seal number swapped for no apparent reason” or critical documents missing.
The ONLY reason we know that now is that John tried to take the first comprehensive inventory of such problems – Brad Nelson sure as hell wasn’t doing so.
With John’s notes as a starting point, I finished the job by pulling public records on the paperwork afterwards and putting my results into a spreadsheet. Finding this many problems, I pulled the equivelent records for ALL precincts and Paul Hilts and I began the laborious process of doing it for the whole county. By about the halfway point we were finding problems with almost 50% of all precincts.
Now in a way, that’s good news. It suggests that the boxes pulled for the 2% sample audit in that election weren’t specifically targeted for tampering.
The bad news of course is that the election procedures in Pima County are either dishonest or seriously disorganized and possibly both.
On Monday of this week, one of the state AG’s office investigators asked me point blank why Brad Nelson hasn’t been fired. They’re saying yet again that at a minimum (in addition to what else they publicly release soon about the RTA audit) they think Nelson runs a disorganized shop. I had to explain to him that Brad isn’t elected, he’s appointed by the ALSO unelected county manager “King Chuck” Huckleberry.
Ghaaa.
Anyways. This is yet more icing on the upcoming “yay, Nelson is fired!” party cake.
Special note to John Brakey: don’t just sue Brad Nelson for false arrest. Personally sue the cop involved. Yeah, I know, he was fairly nice about it, but it’s absolutely critical that we get a situation where cops won’t support a false arrest because they know they’ll share the personal liability. Right after WW2 we held trials for the various Nazi murderers in Germany and elsewhere, and “I was only following orders” was judged NOT a valid defense. That became something called the “Nuremberg Principle” and it needs to be supported here.
Jim
The video:
http://blip.tv/file/2004617
In response to David Safier: Yes, it’s true, John sometimes has to be reminded to use his “indoor voice” :). However, NOT in this case! The fault was 100% on Nelson’s side.
Yes, John Brakey is a bulldog when he gets ahold of something like this. And that’s what the Pima County elections process needed and still needs.
@Jim I hope that John takes your advice and sues the cop as well as Nelson. Otherwise, they got EXACTLY what they wanted that day — John out of the way, and absolutely no consequences for their actions.
Police must begin to use their common sense and humanity in deciding whether to follow illegal orders, just as CIA operatives must, just as EVERYBODY must start to consider the consequences of following illegal orders.
We are in a war against the Rule of Law, and right now, thanks to eight years of lawlessness and a current administration that seems willing to “forget and forgive,” the Rule of Law is losing VERY BIG to the “might makes right” school.
If low-level street thugs stop doing the bidding of the powers at the top, the whole came comes to a crushing halt.