On Wednesday afternoon attorneys for both sides had tentatively agreed to begin final arguments by midday on Thursday, in a bid to wrap up a nearly three-week trial that has garnered international attention.
The gallery of the second-floor courtroom was quietly filling with spectators when a series of objections disrupted the day’s planned schedule.
The conflict began Wednesday afternoon when Brian Neesby, a Business Systems Analyst for the North Carolina State Board of Elections, was called to the stand.
Neesby was was explaining a chart he had created from Board’s voter registration statistics when Plaintiff’s attorney Josh Kaul stood up and objected.
“We’ve never seen this before,” said Kaul.
Kaul said Neesby was introducing new statistics not previously shared with Plaintiffs’ attorneys during the discovery phase of the trial. During the discovery phase witnesses are interviewed under oath by both sides so that neither side will be undermined by unexpected testimony during the trial.
Neesby said the chart he presented was culled from data given to the Plaintiffs’ team in January and June. Judge Thomas Schroeder overruled Kaul, saying Neesby was using data the Plaintiffs already had.
“For a month,” Kaul shot back.
When testimony resumed on Thursday morning, Kaul asked Neesby how long he had had the controversial chart. Neesby admitted he’d had the chart when Plaintiffs’ attorney deposed him 12 days ago.
Kaul moved to have Neesby’s testimony excluded from the trial. Plaintiff’s attorney David Cooper also moved to exclude Neesby’s testimony.
By now it was after 10 a.m. and the gallery benches were nearly full.
Judge Schroeder asked Cooper how many times Neesby had been deposed. Cooper responded that Neesby had never been asked about the materials he just presented.
Defense attorney Phil Strach reminded Judge Schroeder the Plaintiffs had access to the same data set when they deposed Neesby.
The judge gave Plaintiffs’ attorneys 10 days to file a motion specifying which parts of Neesby’s testimony they wanted to exclude, and gave Defense attorneys 10 days to respond to the motion.
It was now time for the court’s morning recess. Lawyers, journalists and confused and curious spectators flowed into the 2nd floor lobby.
When court resumed 20 minutes later, Plaintiffs’ attorney George Eppsteiner called Daphne Gaines to the stand.
Defense attorney Thomas Farr rose to object. He said the Defense had only been told about Ms. Gaines’ testimony at 10 a.m. that morning.
“I’m not here to have people springing witnesses on each other,” Judge Schroeder warned. “I’m here to decide what the truth is.”
More objections followed when Dr. Allan Lichtman was called as a rebuttal witness. Lichtman, a Distinguished Professor of History at American University and the author of nine books, had previously testified as an expert witness for the Plaintiffs on July 17. He was recalled to the stand in a bid to discredit previous Defense witness testimony, including Neesby’s controversial chart.
As Lichtman began presenting statistics, Farr objected again. He said Lichtman was presenting new evidence the Defense team hadn’t had time to examine.
Donovan countered that the Plaintiffs had been forced to accept new evidence from Neesby on Wednesday.
Judge Schroeder asked both lawyers why they hadn’t settled the matter earlier. Donovan replied the Plaintiffs needed Lichtman’s testimony to respond to Neesby’s report.
The Judge permitted Lichtman to resume his testimony.
Lichtman had not finished his testimony by noon, when the Court took a one-hour lunch recess. Spectators returned to the gallery and Lichtman returned to the stand at 1 p.m.
In the end, Lichtman would not step down until nearly 3 p.m., as objections concerning new material were batted back and forth by Defense and Plaintiffs.
It was now clear that closing arguments would have to be moved to Friday.
“You’re always better off to share with your opponent at the earliest possible time,” Judge Schroeder told the attorneys.
