Ohio Recount Affidavit - Richard Hayes Phillips

[HR_Pufnstuf]

Ohio Recount Affidavit - Richard Hayes Phillips
http://www.scoop.co.nz/mason/stories/WO0412/S00167.htm

------------

OHIO RECOUNT

AFFIDAVIT

December 10, 2004

From: http://web.northnet.org/minstrel/supreme.htm

I, RICHARD HAYES PHILLIPS, do swear and affirm the following:

1. I hold a Ph.D. in geomorphology from the University of Oregon. I am a professional hydrologist and am well versed in standard techniques of statistical analysis, with special expertise in spotting anomalous data. A copy of my curriculum vita is attached to this Affidavit as Exhibit A.

2. I have analyzed unofficial precinct level results from the November 2, 2004 general election in nine Ohio counties, including Cuyahoga, Franklin, Warren, Butler, Clermont, Miami, Montgomery, Hamilton, and Lucas. In have compared these results with those from the November 7, 2000 general election where such data is available. I have examined the unofficial and official results for the November 2, 2004 election, county by county. I have examined, in Franklin County, data on the number of voting machines deployed in each precinct. I have also examined United States census data for 2000 and 2003.

3. There are numerous examples of incorrect presidential vote tallies in certain precincts in Cleveland, Cuyahoga County. These irregularities include at least 16 precincts where votes intended to be cast for Kerry were shifted to other candidates’ columns, and at least 30 precincts with inexplicably low voter turnout, including 7.10%, 13.05%, 19.60%, 21.01%, 21.80%, 24.72%, 28.83%, 28.97%, and 29.25%, and seven entire wards where voter turnout was reportedly below 50%, even as low as 39.35%. Kerry won Cleveland with 83.27% of the vote to 15.88% for Bush. If voter turnout was really 60% of registered voters, as seems likely based upon turnout in other major cities of Ohio, rather than 49.89% as reported, Kerry’s margin of victory in Cleveland has been wrongly reduced by 22,000 votes.

FOR FULL (4.-11.):
http://www.scoop.co.nz/mason/stories/WO0412/S00167.htm

[LiberalAndProud]

1. Buckle your seatbelts, we're in for a bumpy ride.

I HOPE again. Not stubborn, against-all-odds, BitterEnder hope, but

Genuine

REAL

Absolute

HOPE

[crispini]

2. Wow.

That's some awesome stuff.

If this guy's right..... KERRY WON.

[Stand and Fight]

17. Let's hope.... n/t

[berniew1]

51. This was part of Arnebeck's filing. And some of the fraud has been docume

This gives detailed documentation supporting irregularities in many precincts of many counties; some of the fraud has already been documented, although Blackwell has had the evidence locked down for the last 4 weeks. Fraud found in Greene, Perry, Lucas, Trumbull, Cuyahoga, etc.

[bones_7672]

3. And it will be for nothing because voter intent cannot be determined.

[Sideways]

23. HAHAHAHAHAHAHAHA

Laughter......and more laughter.......HAHAHAHAHAHAHA........

[Stand and Fight]

4. What I gathered from reading the affidavit.

Discounting uncounted provisional and uncounted votes for president, there are a total of 89,000 votes that were possibly stolen from Kerry.

Let me state again, that this does not include the still 92,672 uncounted regular ballots or the 14,441 uncounted provisional ballots.

The 89,000 possible stolen votes take Bush's margin of 119,000 down to 30,000 votes. Twenty-five percent of the uncounted regular ballots going to Kerry yields 23,168. (That is of course, assuming that the 25% of the uncounted ballots deemed valid all go to Kerry.) That pushes Bush's margin of victory down to 6,832 votes. And on and on... The point is that based on the affidavit it is possible, however unlikely, that the battleground state of Ohio could go blue.

And this is only based upon one professional's examination of just nine counties. IF this were a trend across the state -- just imagine what this could mean people!!!

It's like whoa!!!

:wow:

[senegal1]

5. SEAT BELTS!!!!!

[Stand and Fight]

6. You've got that right. n/t

[anamandujano]

24. in the Washington Journal interview Arnebeck said

that he can prove that the outcome in Ohio will be the opposite of what was first reported--in other words that the vote tallies of Bush and Kerry will switch and Kerry will be the winner by the same margin that Bush seems to be holding now

[Terre]

7. Who has this been sent to?

I don't recognize the name - Richard Harris (not surprising though). Maybe I missed a post?

Does anyone know if this affidavit was sent to Conyers, Arnebeck?

[skids]

11. Rich is working with Arnebeck

I'm in contact with Richard as I've prechewed some of the latest county data for him. This was all done as part of the case. Which, by the way, is why "in my professional opinion" is sprinkled around the text so much. He says the lawyers made him do that.

If anyone wants to relay anything to him, I'll keep track of this thread and write him up a summary.

[read the law first]

12. You can start by telling him that his affidavit is filled with hearsay.

You can start by telling him that the nature of an affidavit is the personal, direct knowledge of the affiant. You can then tell him that in every single instance where he avers something that he heard from someone else, it is hearsay and inadmissible unless it fits within an exception to the hearsay rule. You can then tell him that if he's got a professional opinion, he'd better be dang sure and ready to set out the people or entities which have previously paid him for his opinion as a election statistician instead of a karst expert to establish that he is indeed a professional electoral statistician and not a minstrel and electoral hobbyist posing as an expert.

You can tell him he makes conclusory statements without foundation and without demonstrating how he has personal knowledge of some of the things that he avers. You can tell him that anything in his affidavit that he has to assume or which is based on his assumption will be thrown out.

I know his heart is in the right place (everyone is doing their utmost best) and I'm sorry to be tough, but he's about to go big time and my few comments here will seem like a gentle, warm, fuzzy warmup exercise compared to what he's about to go through on the witness stand in front of the entire world.

Best of luck!

[MarkusQ]

13. Uh, wrong.

There are two types of affidavits: testimony from personal knowledge (to which your objections would clearly apply) and expert testimony (where your objections would be irrelevant).

If Carl Sagan was called to testify on the age of the cosmos and said that it began "billions of years ago," he would not be claiming that he was there at the time and has been counting the years since, and no one would expect it. He would be testifying as an expert, as this fellow is. That's why the phrase "in my professional opinion" gets used.

--MarkusQ

[read the law first]

27. Then why not his expert opinion instead of his professional opinion?

I'm not admitted in Ohio but where I come from the only people who are allowed to give opinions like that are those who have laid a foundation as an expert. The phrase "professional opinion" is meaningless and has no legal significance except to expose people who don't know what they're talking about but who are desperately trying to pretend that they do.

[eowyn_of_rohan]

29. Can you provide a link to show the difference between "expert"

and "professional" opinion, in legal terms? Thanks.

[read the law first]

31. Try Federal Rules of Evidence 702, et seq.

For starters, go to Federal Rule of Evidence 702, 703, and 705. Note the plethora of references to the word expert and the complete and utter absence of any reference to the word professional.

[eowyn_of_rohan]

32. Hmmmm...Your references show

they are used in tandem and/or interchangeably. Can you show me legal definitions that indicate a difference between the 2? Thanks

[Joe Chi Minh]

33. Hilarious silence from

the guy who *really* needs to READ THE LAW FIRST, eowyn_of_rohan!!!!! Is there no stunt that is below them? Absolutely hilarious!
Btw, your u/n sounds Saxon. An ancestor?

[eowyn_of_rohan]

36. Hmmm. Looks like it worked, eh? ;)

Grandpa was born in North Wales--does that count? BTW, tell everyone in Scotland we are being held hostage here, so not to hate us because we did NOT elect Bush. Thank you.:hi:

[Joe Chi Minh]

38. Their brazenness

sometimes beggars belief, doesn't it!

Re the Scottish people's perceptions of Americans, I'm sure they're wise to *s (remember the laughable putative asterisk that was supposed to be against Bill Clnton's name for all eternity..?) unpopularity at home. People everywhere know there's a world of difference between the American government and its people.

Re your Welsh provenance, well, Wales is full of ancient Norman castles, eowyn. In fact, there is a lady in Atlanta (also part Welsh, as am I) who is an expert on medieval British history, and has written for one of the Internet sites on Welsh castles, a potted biography of William Marshall, the Mohammed Ali of medieval jousting and warfare. Unbeaten in jousting, and successfully fighting hand-to-hand into his seventies! She sent me a book, "Conversations with Shelby Foote"; he was one of the authorities behind your wonderful US documentary on the Civil War.
Good to hear from you, too.

[eowyn_of_rohan]

40. I am relieved to hear that...

Thank you for the information about the books on Welsh castles and matters medieval, and also it is interesting that this lady wrote a book about Shelby Foote. Yes I am familiar with his Civil War documentary, which I though was excellent. I miss working on my Welsh and English genealogy, which has taken a back seat to political issues since Nov. 3. If and when I ever calm down about this stolen election I will be happy to turn my attention to ancient Great Britain, and will look for the books you mention.

(pssst--that "legal expert" was surprisingly easy to get rid of ;)

[read the law first]

43. It's going to be a busy day at work tomorrow too.

So don't get all spastic that I haven't responded to your post quickly enough.

Some of us don't have all day to spend online chatting.

[eowyn_of_rohan]

41. I am relieved to hear that...

Thank you for the information about the books on Welsh castles and matters medieval, and also it is interesting that this lady wrote a book about Shelby Foote. Yes I am familiar with his Civil War documentary, which I though was excellent. I miss working on my Welsh and English genealogy, which has taken a back seat to political issues since Nov. 3. If and when I ever calm down about this stolen election I will be happy to turn my attention to ancient Great Britain, and will look for the books you mention.

(pssst--that "legal expert" was surprisingly easy to get rid of ;)

[read the law first]

44. Good list of professions vel non at 127 F. Supp.2d 779

EMT not a professional
Cosmetologist not a professional
Mortician not professional
Crisis counselors not professionals
laboratory techs not professionals

Do I have any fear that I could qualify any of them as an expert in the proper case? No, no fear at all. Is it relevant to their testimony whether they are professional or not? No, except to the extent that membership in a professional association is something that I will ask them about when I have them on either direct or cross.

It's a malpractice case but the point being that every single one of these people could be qualified as an expert regardless of whether or not they are considered professional.

So, again the word professional in front of opinion is irrelevant. You're either an expert or your not. If you're not tendered and accepted as an expert, it is irrelevant whether you're a professional or not.

Kind of like something being from the Department of Redundancy Department. It's just an extra, irrelevant word. I wouldn't let my experts use it and if the other side ever used it, I'd cream them for it. But do what you want. Just don't say I didn't warn you.

[Name removed]

48. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Name removed]

49. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Name removed]

50. Deleted message

Message removed by moderator. Click here to review the message board rules.

[read the law first]

42. FRE Article VII Expert 16 references Professional 0 Doesn't sound...

interchangeable to me.


Sorry for my absence, it was very busy today at work. I didn't know that there was some sort of time requirement that one had to check posts before people started saying ugly things about one being hilarious in one's absence simply because they are working. But that's consistent with my experience. The people who want free advice usually are the most impatient. Please note that this exchange started by someone asking for advice, so I gave it. Don't want knowledgable advice? Don't ask for it.

Next, there is NO, repeat, NO reference in the Federal Rules of Evidence Article Seven (consisting of Rules 701, 702, 703, 704, 705, and 706) regarding professional opinion. There's a good reason for this. It is because people can be experts in something who are not professionals. For example, I have qualified and tendered a homeowner who had knowledge of housing prices in his neighborhood as an expert in a real property valuation case? Was he a professional in any real estate field? No, but he was qualified as an expert and allowed to testify? Yes. Another matter, I tendered an qualified an expert in the field of mapping and redistricting. Was he a professional in the field of mapping and redistricting? No, but he was accepted and testified as an expert.

Want more basics? McCormick on Evidence the leading hornbook on Evidence has no references to professional opinion. It has entire sections on expert testimony. If you really want to get to the basics, go to AmJur Proof of Facts and look for a single reference to qualifying a professional in order for the person to render expert testimony. You won't find one.

Here's how it would go where I'm from:
Attorney: Witness please state your professional qualifications
Witness: blah, blah, blah, degree, degree, experience, blah, blah
Attorney: Your Honor, I tender this Witness as a Professional
The Court: Why would you do that, Counselor? Somebody want to sue him for malpractice?
Attorney: No, it's just that expert and professional are supposedly interchangeable.
The Court: Why don't you just qualify him as an expert so we can move on. By the way, do you have your CLE hours up to date so that you can be lead trial counsel?

Now remember, I did not say that the professional opinion would not be admissible, so there's not going to be a reported case where somebody lost a summary judgment because they called it a professional opinion (and admittedly even some courts are sometimes extremely sloppy in saying this expert tendered his professional opinion) because it usually is corrected on the spot (after the appropriate laughter from the gallery). But my post said that there is NO, repeat, NO legal significance to placing professional in front of the word opinion and the downside is that a sharp litigator is going to use to to smack you around on cross.

But do what you want, I don't care. But don't ask for any more free advice if you're just going to insult the people who give it to you.

[eowyn_of_rohan]

45. Aw, we're sorry to give you a hard time.

Just that you never came back, so we assumed you didn't have a comeback. I see you have a very lengthy comeback, but I havent had enough time to absorb it. I'll read it though. thanks for taking the time to write it.

[read the law first]

46. Please include in your response how many election cases you've tried

Please include in your response how many election cases you've tried to completion, so I'll know if this is a worthwhile exchange or not. If it's none, then this exchange is going no where and I bid you adieu and good luck. If it's more than ten, then we'll have a good discussion that I will enjoy being a part of.

It's like my mama always said, "Don't wrestle with a pig. It gets you dirty and the pig likes it." and like my senior partner said "Don't argue the law with a layman unless you're billing it by the hour and you've got a good retainer that didn't bounce."

[read the law first]

47. If that doesn't work, try McCormick on Evidence

Competency: First Hand Knowledge and Experience.

"There rules are the requirement that a witness testifying to objective facts must have had means of knowing them from observation, and the rule that one who would testify to his inference or opinion in matters requiring special training or experience to understand must be qualified AS AN EXPERT IN THE FIELD." (emphasis added).

So, to recap. The Federal Rules of Evidence in Article VII dealing with expert testimony mentions the word "expert" no less than 16 times but doesn't mention the word profession even one time. Every evidence book on the market tells you how to lay a foundation for expert testimony but not a single one in my experience teaches you how to lay a foundation for a professional. Experts need not be professionals and the fact that one is a professional is only partially relevent in qualifying them as an expert. The most relevant consideration of whether someone is a professional or not is whether they can be sued for professional malpractice.

Finally, in order to proffer expert testimony, you have to have two things: (1) a bona fide expert that you can tender as an expert and (2) some knowledge outside the ken of laypeople. IMHO, crunching election data by laypeople (witness the post from the lay person who said that they were helping crunch the numbers) is not outside of the ken of laypeople. Now if they came up with some argument that the vote is x number of standard deviations from the historical, not expected, but historical vote, then you've got something that the average lay person doesn't have within their knowledge.

Now, that's not to say that I couldn't get them qualified as an expert any way but I wouldn't try to qualify them as having a professional opinion when what I really mean to do is qualify them as an expert.

P.S. from the reported medical malpractice cases, there does seem to be some interest in the professional opinion but MM isn't my bag. However, it seems to be related to something within the medical profession rather than any rule of evidence.

[eowyn_of_rohan]

28. I have utmost confidence that Arnebeck and associates

know what they are doing and will be able to handle the "big time"

[TexasChick]

8. OMG!! Bastards!!! n/t

[Goldeneye]

9. Please let this start to unroll

I can't stand this anymore. I hate the thought of rove sitting in the white house saying "somethin yust don figure miser bush, yous gonna win ohio and florieda. " and then like clockwork servers go down at mitofsky and bush somehow scrapes together a win...

I have a question...when they say Kerry was winning in a landslide, is that by exit polls or by actual vote counts. Because if it was by vote counts, and Kerry had been winning all fricking day, Bush would've needed just about every vote counted in those few hours, to close the gap and then pass kerry.

[IndyOp]

10. Good summary...

Phillips analyses are really good. Two of the very best (the Kerry/Connally discrepancy & Triad Counties analyses) are at the top of this thread:

<http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=203&topic_id=137414>

[pgh_dem]

35. his affadavit just got a huge cement chunk of credibility added to it

with Cobb's statements regarding the Triad tech who went in on Friday and monkeyed with the tabulator.
KEEP HOPE ALIVE

[texpatriot2004]

14. Man, it's like a rollercoaster ride, hold on...

[Destroy_All_Monsters]

15. Expert testimony

Phillips' statistical detective work is masterful. Here's the link to all his work on the Ohio recount:

http://web.northnet.org/minstrel/alpage.htm

There's a new section, added today, on "Stuffing the Ballot Box in Trumbull County" by Dr. Werner Lange. I believe it may have been posted here on DU first. I guess Dr. Lange is a friend of Richard and DU. He keeps good company.

[masjenkins]

18. who is this person?

lyric poetry page?? this just seems odd.

[alittlelark]

19. "who is this person"?

who are you?

[Stand and Fight]

16. kick

:kick:

Kick for the late crowd.

[garybeck]

20. cool, is this for the Green lawsuit or the Alliance lawsuit?

[skids]

25. CommonCause n/t

[JohnOneillsMemory]

21. Geomorphologists study changes in the land. Hope he's good. n/t

[Joe Chi Minh]

34. Fear not, my son.

eom

[emlev]

22. Answers to some of your questions about Dr. Phillips

He is working with Arnebeck and Fitrakis on their suit challenging the election results in Ohio. He is not being paid for his work. Many of the statistics given by Fitrakis at the DC Conyers forum last Wednesday came from Phillips.

He is working with a team of volunteer assistants to analyze as many of the 88 Ohio counties on a precinct by precinct level as can be accomplished in time for the lawsuit.

He is posting his findings on his website as soon as he prepares them. This website was his website for his folk music before he suddenly took on this massive election analysis. Posting his findings on his website was the most timely way he could make them available.

I'm one of the people on his team, and I've been spending many hours a day working on this project because I think it has the potential to change the results of the election.

[skids]

26. Hey em!

Welcome to DU. Don't get stuck here it's a real time burner. :hi:

[xiamiam]

30. thank you em...and all of your colleagues...thank you

[lonestarnot]

37. An analysis based in fact.

Will he be heard?

[ClintCooper2003]

39. I find it very compelling.... but we'll need some more

independent proof I think.

[skids]

52. Richard's response.

I took some of these concerns to Richard. Most of them he can't speak to because what the lawyers tell him to do he does, and whether that's wrong or right, that's the lawyers' issue. Richard isn't a lawyer.

However, as far as his viability as an expert witness, his resume is a bit better than people are giving him credit for. In addition to the geomorphology, he has been a Professor of American History, so he isn't approaching elections cold. Secondly, he has served as an expert witness before on anomolous data. Thirdly, it is fully expected that by the time Richard is expected to testify to anything, his claims from a statistics/anomoly standpoint will have been backed up with hard evidence from poll books and various other paper records.

(Neither I nor he can speak to how much tampering with that evidence will be allowed to occur in the meantime. Just everyone working in Ohio please be extra vigilant. Not that you need to be told.)

Richard also pled with the DU community to spend a little less time speculating, and a little more time helping to build a case. For example, we still have a bunch of county statistics that are stuck in hardcopy-land, without sufficient volunteers to OCR/proofread, or hell, just type the damn things in by brute force. The faster he gets those, the better.

(BTW, when I said I was crunching data for Rich, mainly what I send him is simple processed data for him to analyze, so he doesn't have to waste time on the mundane. I only point out what looks fishy to me, because sometimes a second set of eyes and a different perspective can provide a clue or a tactical idea for him to consider.)

pm me to volunteer, I'll get you in contact with Em.