KANSAS CITY, KANSAS — At one point in federal court Tuesday, Judge Julie Robinson gave Kansas Secretary of State Kris Kobach and his co-counsel a lesson they should have learned before deciding to defend themselves against the ACLU in a landmark voting rights case that could affect the future of how Americans register to vote.
“I’m not going to allow anybody to testify to a document that’s not in evidence,” she said. “Evidence 101. I’m not going to do it.”
It wasn’t the only time the judge, a George W. Bush appointee, would explain to Kobach and his fellow attorneys basic legal concepts after they fumbled the rules of evidence and civil procedure. During the first two days of trial, Judge Robinson also walked Kobach’s team through how to phrase questions in cross examination, how to impeach a witness, and how to present new exhibits into the record.
The Republican secretary of state, who is also running for governor, decided to represent himself in the ACLU’s litigation over his documentary proof of citizenship law. It’s unclear why Kobach decided to handle the case himself rather than being represented by the Kansas Attorney General’s office, which would have numerous attorneys skilled at trial advocacy, or another attorney with trial experience.
After two days of trial, Kansas voters told ThinkProgress he likely regrets the unusual decision.
“It was tragic,” Anita Parson said as she headed back into the courtroom after a break on the second day of trial.
“It was really interesting to watch all the mistakes he was making in court,” said Davis Hammet, a 27-year-old Topeka resident who works for an organization that helps Kansans register to vote. “They’re representing the state of Kansas and the fact that Kansas is right now being embarrassed in a federal court by the people who are representing it is very unfortunate.”
Attorneys for the ACLU told ThinkProgress it appears that neither Sue Becker nor Garrett Roe, attorneys in Kobach’s office who have led cross examination of the ACLU’s witnesses and experts, have much trial experience. Becker is chief legal counsel for the secretary of state’s office and Roe is the assistant deputy secretary of state for legal services.
The inexperience was apparent from the moment the court was called into session. As trial started Tuesday, the ACLU’s table was organized and their attorneys sat back in their chairs, chatting with one another before the 9 a.m. start time. Kobach and his team, however, surrounded themselves with binders, boxes of documents, bags, and stacks of paper. Throughout the first two days, the team shuffled through papers, rifled through evidence, and often paused their lines of questioning to locate the appropriate document.
Becker and Roe frequently asked witnesses questions, only to realize their questions were nonsensical and moved on without an answer.
“It’s a yes or no question,” Becker said to one witness, a former co-president of a local chapter of the League of Women Voters in Kansas, after asking a convoluted question about whether it’s easy to carry a copy machine door-to-door when registering voters. “I’ll just ask the next question.”
A few minutes later, Judge Robinson tried to repeat Becker’s question for the witness, but realized she didn’t understand it herself. The courtroom laughed.
At another point, Judge Robinson explained to Becker how she should impeach a witness.
“I’m just going to read from it and ask her,” Becker said about the deposition.
“No, you can’t do that,” the judge responded to laughs from both Becker and the courtroom audience.
When Roe began cross-examination of another plaintiff, Judge Robinson had to explain the same procedure.
“If you want to impeach him, show him the deposition… That’s the procedure, ” she said, going on to explain how his questions should sound. “You can be more pointed in cross-examination. ‘Didn’t you testify to such such and such.'”
Roe took several deep breaths and exasperated sighs. The judge later called a break so Roe could locate a document he couldn’t find.
While attorneys for the ACLU came to court with enough copies of exhibits to share with defendants and witnesses, Kobach’s team repeatedly showed up unprepared. At one point Monday when the ACLU asked for a copy of an exhibit, Kobach’s team handed them one with notes on it — which the ACLU pointed out they may want to take back. At other points, Kobach and his attorneys had to share a copy of an exhibit with a witness, reading over the witness’ shoulder.
On Tuesday and Wednesday, Judge Robinson twice ruled that Kobach and his team had not given the ACLU enough time to review documents. In one case, Kobach sent the exhibit in an email at 10:43 the night before trial began at 9 am, in violation of a 24 hour rule.
After lunch on Wednesday, a printed stack of papers labeled “Federal Rules of Evidence” sat on Kobach’s table.