Saturday, August 1, 2020

Hearing on Wilson Eligibility See Lawyer Fumble While Wilson Pleads the Fifth (UPDATE)

A hearing on Friday for the lawsuit challenging the eligibility of Democratic nominee for Arkansas House District 12 took places via Zoom.  Since I had the day off work, I was able to listen in.  If you have not been following this story, House District 12 incumbent Rep. Chris Richey resigned as he moved out of the district creating a vacancy in nomination for the Democratic Party.  They filled the vacancy earlier this month where 5 out of the 8 delegates to a special nominating convention selected Jimmie Wilson.  This was done over the apparent objection of the Democratic Party of Arkansas who told the delegates in a memo that his eligibility is in doubt due to his previous federal conviction.

The hearing today in Judge Alice Gray's court was in response to a lawsuit filed by a somewhat mystery plaintiff - Lisa Ramey through an El Dorado attorney Caleb Baumgardner.  While it was not a surprise that a lawsuit was filed, most Republicans in the state have not heard of Ramey and were not expecting the challenge to come from Baumgardner - an attorney with heavy ties to the Democratic Party - working for the Depper Law Firm that represented the DPA at the hearing today - and for left leaning groups such as the Arkansas Public Policy Panel.

Hmmm. That's interesting but let's continue.

Judge Gray heard arguments and ruled on three issues in the hearing: a motion to dismiss from Wilson, the complaint filed by Baumgardner, and the Intervenor's Complaint in Intervention from both the Republican Party of Arkansas and Republican HD12 nominee David Tollett.  In a letter to the court late Friday, Judge Gray said she has reach a decision in all three matters but has not yet said what that decision is.

The hearing was painful to watch.  Baumgardner was clearly not prepared for the hearing.  Most of the hearing revolved around some very basic mistakes he made.  It began with his failure to establish proper standing of his client Ramey in this court filing. While the Tolbert Report was able to determine that Ramey is a voter in House District 12 and a resident of West Helena, Baumgardner did not show this in his filings with basic evidence such as a voter registration.  Baumgardner argued he did this in the "styling" of the case listing her (even misspelling her name) as "Lisa Elizabeth Ramsey - individually and as a representative of all similarly situated voter-citizens of Arkansas House District 12."  

The error almost got the case tossed before any additional hearing of the case.  Wilson argued that the case should be thrown out and that the plaintiff should not be able to go back and correct this mistake after the fact.  Ironically one of the parties in the case - the Democratic Party of Arkansas - stated they disagreed with Wilson and were against dismissal wanting the judge to rule in the case - a position Wilson said was an "unpleasant surprise."

Judge Gray allowed the case to continue for the sake of time but reserved judgement on the motion to dismiss. And Gray was not pleased with the arguments Baumgardner made that the way he listed Ramey in the style of the case counted. Strike one for Baumgardner.

So then Baumgardner was up again, his first witness was his client Ramey.  His questioning and her answers did little more than establish she lived in West Helena where she had voted for years.  This was an obvious attempt to cure his filing mistake which Wilson was quick to point out.

Then Baumgardner called Wilson.  Now I should point out that Wilson was acting both as his attorney and the client in the case so the exchange was awkward is several ways.  The purpose of Baumgardner interrogatories was to place two pieces of evidence into the record - a political practice pledge signed by Wilson and list of pardons from the Justice Department made by President Clinton including one for Jimmie Wilson for "Converting property mortgaged or pledged to a farm credit agency, converting public money to personal use; 18 U.S.C. §§ 641, 658."  The practice pledge Wilson signed stated "I hereby certify that I have never been convicted of a felony in the State of Arkansas, or in any other jurisdiction outside of Arkansas."

The Judge allowed neither document to be entered into evidence due to mishandling the notices Baumgardner was supposed to give on the exhibits to the other parties and do to lack of ability to authenticate the documents since they were copies and not originals.  This was strike two and three for Baumgardner's case.  He fumbled on how to recover even asking help from the judge and receiving none.

The only high point for the plaintiff side came from a cross from George Ritter in his representation of the Republican Party of Arkansas and David Tollett.  Ritter was able to get Wilson to admit that he had taken a plea deal in his federal conviction.  But when Ritter followed up by asking if he had been pardoned, Wilson caught on to what was happening and decided to take his fifth amendment against self incrimination.  After a short recess, the Judge ruled Wilson can involve the fifth and did not have to answer any more questions.  But wisely Ritter did manage to get Wilson's convictions on the record before Wilson clammed up.  That admission was about the only evidence in the case.  It makes one wonder how the case would have gone with Ritter or an attorney the Republicans had selected in the lead instead of Baumgardner - one of the Democrat's buddies 

Wilson in his closing played the race card openly and unashamedly.  "I am here today because I am black," said Wilson.  "My crime was...I was accused of doing what every white farmer in Phillips County did...I did.  Give my children a small amount of land for their crops and themselves to make them interested in farming."  He went on point to a vote of the Arkansas House in 1990 where over 70 members voted his crime was not an infamous crime.

Wilson even went on to compare himself to George Floyd saying "I feel now like George Floyd, I can't breath." 

Judge Gray concluded the hearing saying she expects to rule soon and asked if there were any time constraints for the parties involved.  The attorney for the Democratic Party said that they have to submit their nominee by August 5 which is this coming Wednesday in order to get them on the ballot.

I will note here about how breathtakingly bad Baumgardner handled the case.  Judge Gray was clearly taken a back at his seemingly glaring errors.  I have asked Baumgardner if he would like to comment on what happened at the hearing but have not yet heard back.  He is vacationing at the West Wind Farm Vineyard & Winery in Max Meadows, VA today where he phoned in his arguments from his hotel room.  The winery could be to blame.

It is also possible that the whole filing was a plant.  A case fumbled and bumbled so bad that it helps Wilson remain on the ballot when Judge Gray rules in his favor.  Although there will be appeals and hopefully Vitter or someone can take over.

It is also possible that there were many Democrats that silently did not want Wilson to be their candidate.  While none of the top attorneys were willing to openly take the case, they found the upstart Baumgardner willing to take one for the team.  He saw this as an open and shut case and did not do the basic steps need to win even an open and shut case.

We will see what Judge Gray does in her ruling which may come over the weekend or on Monday but I expect it will be good news for Wilson in the short term.  The appeals process could be a bit tougher.  And if he is successful and goes on to win the election, it will be interesting to see if the House votes to seat him after expelling Mickey Gates just last year.

UPDATE - Still no ruling as of Monday evening but there was an interesting filing from George Ritter, the attorney representing the Republican Party and David Tollett.  Ritter argues that Wilson admitted that he had was "convicted of violating 18 U.S.C. Sections 641 and 658" and only declined to answer the question on a Presidential pardon based on his right against self-incrimination.  So, he admission should disqualify him from the ballot.  Ritter also offers evidence that Wilson was informed of his motion to intervene before the hearing - a point Wilson disputed.

UPDATE II - Tuesday was a another day, another filing but still no decision.  This time Baumgardner filed a "Motion for Reconsideration and Brief in Support" that argues his client has standing despite his bumbling in the original filing. He also keys in on Ritter's point that Wilson admitted he plead guilty of violating USC Section 641 and 658 (embezzlement of federal funds, defrauding farm credit administration.)

Baumgardner also includes an interesting explanation on how to search a pardon list from the Justice Department list by using control F and typing "Jimmie."  Fascinating!

Baumgardner then pleads with the court to expiate their ruling saying "the court should grant the Plaintiff's petition and provide the Democratic Party of Arkansas with an opportunity to replace Mr. Wilson as a candidate while it still has time."

It seems Baumgardner tips his hand here in his real motives.  The DPA made this same point at the hearing telling the court they had to finalize their nominee by this Wednesday, August 5.

A note here that if the DPA is still hoping to replace Wilson they might want to re-read ACA 7-7-104 which explains this can only be done if the candidate dies or notifies the party it their intent to refuse the nomination due to serious illness, moving out of the district, or filing for another office.   I call this the "Josh Mahony Rule."  

UPDATE III - As expected, Judge Gray dismissed the case.  The ruling appears to be based on the fact that Wilson was not served proper notice.  Normally this is done electronically but Wilson apparently did not enter himself as the attorney of record in the system so he did not get the notices automatically through the court system. The judge says it is the plaintiff's duty to make sure he is timley served so case dismissed.

The court also ruled that Baumgardner failed to establish standing of the plaintiff as a voter and failed to provide evidence that Wilson was convicted of a crime.   Both of these point should have been extremely easy for any attorney to prove with even minimal effort.

Again, not a surprise to anyone who saw Baumgardner fumble his way through the hearing last week.  Republicans say they will appeal.

“We believe today that the Pulaski County Circuit Court ruled in error regarding Jimmie Wilson’s eligibility," said RPA Chairman Doyle Webb. "He has been convicted of a federal crime, and though pardoned by President Bill Clinton, he is attempting now to run for office. The Arkansas Constitution provides that someone convicted of an infamous crime may not hold office. We will appeal this matter to the Arkansas Supreme Court.”

Hopefully Baumgardner will get out of the way now that his thinly veiled attempt to assist the DPA in getting a replacement did not work and let the Republican attorneys take over.   Maybe they can get it right this time.

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