Guest Commentary

The county responds to our election-integrity coverage

I've never met Jimmy Boegle, so I can't say I know much about the Tucson Weekly editor.

But there's one thing I do know about him: If I'd written what he did about Brad Nelson, I would have been fired a long time ago.

Check out the attached information. It offers a stunning and factual counter to all of the weird goings-on that the elections-integrity crowd has turned up regarding Brad Nelson's Elections Division.

After reading it, I'm sure you'll be asking yourself the same question that I'm asking myself right now: Why hasn't Jimmy Boegle been fired yet?

Oops!!! I jumped to a conclusion that was not supported by any facts! Based on the above flimsy evidence and just reading Jimmy Boegle's articles and never having met him, I must retract everything I asked you to do. Sorry for overreacting!

Two articles on the election-integrity issue that appeared in the Oct. 23 Tucson Weekly contain statements that either contradict or ignore statements made under oath in Pima County Superior Court. The trial transcript is a public record. Had the Weekly's reporter and editor relied on these official transcripts, the stories in question would have contained sworn facts rather than hearsay, innuendo, half-truths and opinions that cannot be supported by any documentary evidence. Here are some examples:

From Jimmy Boegle's column:

1. "Like the fact that Nelson let an employee take home discs with election files on them for no reason whatsoever. And the fact that his office bought a cropscanner--a known election-hacking device that the Elections Division had no business possessing--supposedly just to see how it worked."

County response: These statements betray a fundamental ignorance. The Weekly can correct this lapse by turning to statements made under oath and contained in the trial transcript (Day 3, Pages 10, 12 and 48). In those pages, the Weekly will find an important distinction between "election files" and the computer server that contains the actual election results the GEMS server. It will also find sworn testimony that contradicts the notion that files were taken home "for no reason whatsoever." Prior to 1999, when the Elections Department purchased a fireproof safe, the GEMS (vote tabulation) backup was removed from the building to prevent their loss in the event of a fire or other catastrophe. Again, this is part of the trial transcript (Day 3, Page 12, line 22).

The Elections Division did indeed have a cropscanner for awhile (Day 3, Page 48) but how does the Weekly know the division had no business possessing it? Had anyone read the trial transcript or been present during the trial, he or she would have known that the machine was purchased to check published comments by elections-integrity activist (Harri) Hursti that the cropscanner could be used to hack election results. It is in the public interest to protect election results, which is exactly what Bryan Crane was doing when he experimented with the machine in question. Again, this rationale, along with Crane's evaluation of the cropscanner, is spelled out in detail in the transcript (Day 3, Page 49).

From the Weekly's article:

2. "'Most still don't understand the serious problems of what is going on in the Elections Division, so no one is demanding changes yet,' (Mike) Hayes says."

County response: Both the Democratic and Republican parties have proposed various steps, and the county administrator has given the Board of Supervisors more than 25 proposed changes, many of which have already been implemented. In 2006, another 50-60 changes were implemented. Copies of all of these changes have been given to the Weekly yet the paper chose to quote an uninformed individual without questioning whether he had any knowledge of the subject he was addressing, which, by extension, implies that the Weekly had no knowledge of all the steps that have been taken and publicly reported over the last year or two.

From the Weekly's article:

3. "At the time the Weekly asked Nelson why have (John) Brakey arrested when he knew it could continue to fan the flames on election-integrity issues; why not work with him? Nelson said he didn't want Brakey arrested and that as director of the Elections Division he is in charge of making sure the count isn't disrupted, so Brakey had to leave. Too bad he didn't figure out a way to work with Brakey and take the broken seals more seriously at the time."

County response: The last sentence is not news reporting but editorial commentary. The previous paragraph suggests the Weekly had not read the police report, which was provided to it. Had the Weekly done so, its staff would have known that Nelson's statement was accurate, that he did indeed try to get Brakey to back down and abide by the rules and that it was Brakey who refused to leave and Brakey who insisted that he wanted to be arrested. This information is explicit in the police report, which, as previously noted, was provided to the Weekly a long time ago.

From the Weekly's article:

4. "When it became clear that the RTA was going to pass, Hayes and others opposed to the RTA were surprised, because they insist that polls showed a decrease in support right before the election. (One political observer has told the Weekly that the RTA campaign may have leaked a false poll that showed support for the tax lagging in a final effort to raise more money for pro-RTA advertising.)"

County comment: This statement contradicts two facts: First, the RTA election results were almost identical to the predictions made on the basis of the marketing surveys that preceded the election. In other words, the election results were an accurate reflection of what voters told pollsters they intended to do. Secondly, the Weekly states that these results were made available to it. The Weekly nevertheless blithely publishes Hayes' comments without any hint that they contradict the polling results which the Weekly's staff saw with its own eyes. The article also quotes an unnamed "political observer" about the possible leak of some false polling data. Unnamed sources, of course, can say anything they want because their anonymity protects them from accountability. The public deserves to know who is making this allegation and on what basis.

From the Weekly's article:

5. "Bill Risner, Brakey, Hayes and others point to discrepancies in that investigation; they claim investigators didn't interview key witnesses Risner provided, and seemed to ignore contradictory testimony provided by (Bryan) Crane. They also were upset that the AG's office allowed the county to partially pay for a computer analysis of the RTA election and the county's GEMS software, by Colorado-based iBeta, which was used in the AG's investigation--considered an odd conflict of interest since this was an investigation of criminal activity within Pima County's Elections Division. Risner also claims the county was allowed to direct parts of the investigation, and the iBeta report was given to the county before an AG representative even interviewed County employees."

County comment: The facts are as follows. After Risner brought his complaint to the AG's office, the AG looked for a company to do the analysis of the RTA election. The Democratic Party objected to SAIC, the company originally selected, so a subsequent meeting was held in May or June 2007, in the AG's Tucson office. Risner and many others were present. John Evans, of the AG's office, said a different company would be found to analyze the RTA election but suggested that all parties involved--the Democratic Party, the county and the AG's office--should share in the cost. The county immediately agreed to share in the expense. Risner declined to have the Democratic Party pay any part of the cost of the analysis but he offered no objection to the county paying part of the bill. Either the Weekly is inaccurate in saying that Risner and others were upset or this is a new concern that is, strangely, being applied retroactively. In short, the complainants had an opportunity to share in the costs more than a year ago and refused; at the same time, they gave tacit approval to the county participation's by not objecting when they had the opportunity to do so. Why does the Weekly treat this as though it is now an issue?

From the Weekly's article:

6. "While Risner included a copy of (Zbigniew) Osmolski's affidavit in his July letter, it wasn't the first time the AG's office heard about the alleged Osmolski-Crane conversation. Risner said in his letter to Goddard that he was approached by Osmolski and another witness regarding the conversation in January, and immediately told an AG associate, fully expecting the office to open a criminal investigation."

County comment: The Osmolski-Crane conversation allegedly occurred in January, and if indeed it carried the significance implied by Risner and the Weekly, why was it never brought up when the trial resumed in May? Why is this glaring omission never pursued by the Weekly? The trial had started in December and resulted in the judge's preliminary ruling. When the trial resumed in May to determine whether additional databases should be released, Risner had every opportunity to bring up the Osmolski allegations, but did not mention it at all until July. Why has the Weekly's report not questioned that delay?

From the Weekly's article:

7. "Risner's July letter to Goddard admits that most of the evidence regarding fraud is circumstantial--but claims that the strong circumstantial evidence and missing evidence point toward fraud and warrant another investigation."

County comment: The trial transcript does not support this conclusion, which is at best a subjective judgment. For example, presumably one bit of circumstantial evidence is, as the Weekly reported, the presence of a Microsoft Access manual. As the Weekly put it: "A photograph taken by an election observer of a Microsoft Access manual in the vote tabulation room on RTA election night. Because Access can be used to change votes in the GEMS software, it is illegal to use the software on election computers."

But this statement completely ignores Bryan Crane's testimony, both direct and under cross-examination, which clearly establishes why the manual was present, that it had absolutely nothing to do with counting votes, that the manual was being used to figure out how to program hand-held bar code scanners to time stamp receipt of equipment being brought into the department. The details can be found in the transcript, Day 2, Page 187, beginning at line 16, and on Day 3, Page 23, line 5, and continuing to Page 25, where Mr. Crane verifies under oath that the Access manual was being used to program a computer that had nothing whatsoever to do with the GEMS (or vote-tabulating) computer, So why does the Weekly choose to simply repeat Mr. Risner's "evidence," which Mr. Risner himself admits is circumstantial, without consulting the trial transcript?

As any publication that has been covering this issue on a regular basis should by now know, there has never been any evidence presented that would indicate the Access software was ever on the GEMS (vote-tabulating) computer. Why is this fact never stressed or even acknowledged in the Weekly's reporting?

From the Weekly's article:

8. "Donna Branch-Gilby, the chair of the Pima County Democratic Party during the RTA election, requested permission for a party consultant--accompanied by Nelson--to enter the tabulation room to look at cables attached to the election computer that led to another room. The request was denied--leading Branch-Gilby and others to wonder what the county was hiding in a room they were told was vacant."

County response: This has been brought (up) and explained many times in the past. We repeat: An election was still in progress when this request was made. The county cannot allow this kind of access in the middle of an election. We find it odd that the Weekly or Mr. Risner should question county actions aimed at protecting voting integrity. It is remarkable that the Weekly would not be shocked by a complainant who believes it is legal, wise and in the best interests of the voting public to allow a political partisan and her consultant to enter the tabulation room while the election was still in progress.

From the Weekly's article:

9. "An election department employee testified that Crane regularly took home a CD of election data during elections. Isabel Araiza, a senior Elections Division employee, during the trial testified that she told Nelson there were security problems with Crane taking election data home with him--but Nelson never objected, and the practice didn't stop until it came to light during the lawsuit."

County response: Either the Weekly staff did not cover the trial, failed to read the transcript, or selectively reported statements while ignoring the explanations made under oath by the witnesses. Under direct and cross-examination it was shown that county employees saw Mr. Crane taking home backup copies but some thought the backups were CDs when in fact the office manager Mary Martinson said they were tapes. She knew because she had to change them routinely. The trial transcript also established repeatedly that the alleged security problems stemmed from a mistaken belief that the backups were from the GEMS (voter-tabulation) computer. The transcript clearly shows the backups were from a computer containing administrative material, Word documents and the like, and not data from the GEMS server. These distinctions are discussed in at least 12 places in the transcript on Day 2 and Day 3. We will be happy to provide page numbers in the testimony for each citation but a careful reporter might have presented the testimony of not only a person alleging a security problem but the cross-examination that illustrated that the accusation stemmed from a presumption and was not supported by evidence.

From the Weekly's article:

10. "The fact that Crane, through the Elections Division, purchased a cropscanner, an agriculture analysis tool that has been proven to be a potential hacking device. In his deposition, Crane said he purchased the scanner to see if those allegations--that it could be used to change an election outcome--were true, and that, yes, he discovered it worked."

County Response: The trial transcript for Day 3, Pages 48 and 49, show that this statement is only partially true. The Weekly story conveniently ignores Bryan Crane's sworn testimony where he says, in response to a question, "Hursti's changing of election results that would go to GEMS (the database containing election results), we could not verify that. We could not get that to happen; but we could get the text of the printout itself from the Accuvote to change and mimic a failure or a flopping of votes. But that information, then, would not carry into GEMS. GEMS would be correct. The tape would be wrong."

The tape that Crane mentions is the register tape that the scanner produces on election night.

The more important point is the innuendo that flows from an Elections Division employee proving that "a potential hacking device" actually works. First, as we noted at the outset, the Weekly's editor, who has no first-hand knowledge of any of this, unequivocally informs readers that the county "had no business possessing" this potential hacking device, and then the Weekly tells us the half-truth that a county elections official experimented with it and discovered it worked. Would it not have been more responsible to point out that this experiment was performed to protect voters from potential abuse, and furthermore that sworn testimony indicated that this device was never used during a live election?

From the Weekly's story:

11. "But (Scott) Egan--who says he is a friend of Osmolski's--says Crane was indeed there that night. Egan told the Weekly that Osmolski, in a panic, went up to Egan to tell him the story Crane had just told him. They agreed to leave together and called Risner as soon as they got to Osmolski's house, but only after Egan drove by the patio where Crane was sitting outside and saw the elections employee having a smoke."

County response: There are several problems with this paragraph, not the least of which is that it is clearly hearsay which the Weekly accepts on face value. Perhaps if it were anything more than hearsay, Mr. Risner would have raised it during the trial. However, to this day the story remains absent from any official court record. That the Weekly would repeat it without challenging the source or its veracity is irresponsible and unprofessional.

From the Weekly's story:

12. "Nelson, in a recent memo to Huckelberry, says (Nol) Day didn't know what he was seeing and has his dates mixed up. Day counters that he keeps a journal and knows what he saw."

County response: Nobody in county government has seen this journal. Has the Weekly seen it? If so, precisely what kind of detailed information does it contain? Or is this possibly another case where the Weekly simply accepted at face value what someone told it?

From the Weekly's story:

13. "County records show that Osmolski was fired for drinking on the job and inappropriate conduct with female employees. Osmolski, however, says that information from the county is a continued tactic to smear him for sticking by his friend (Brooks) Keenan. Before being fired, Osmolski says, he had 21 years with the county, excellent reviews from seven different supervisors and a body of work of which he was proud. When Osmolski sued the county to get his job back, he says, he produced nine witnesses who said they never smelled alcohol on his breath at work or witnessed him drinking on the job. Osmolski says he lost the lawsuit on a technicality and later successfully sued his attorney for the mistake. But he didn't get his job back, and has yet to work again in Tucson. The native of Poland says engineering firms refuse to hire him, because they are worried they could lose lucrative county contracts."

County's response: More flimsy reporting. Why does the Weekly never challenge Mr. Osmolski for specific information and evidence to support his allegations? In the paragraph above, the Weekly functions not as an inquiring journalist who has mastered any critical thinking skills, but as a dictationist. Readers deserve better.

From the Weekly's story:

14. "'On the patio, I made a joke with everyone. ... One guy was standing on the other side with a fedora and a fake pony tail. I said, "Who are you, Doc Holliday?" "I'm Bryan," he said. And I said, "I'm Billy from Brazil,"' recalls Osmolski, who often travels to Brazil and is fluent in Portuguese.

"He says he asked Crane where he worked and was told the Pima County Elections department.

"'I asked him, "Are you the one who fixed the RTA?" and he said, "Well yes I did." And that's how it started. I went back and talked to him again and asked him, "Did you fix it yourself or on the direction from others?" "I did what I was told." "By whom?" "My boss." "Meaning the election director." "Yeah, Brad Nelson."'"

County response: Again, this is the Weekly as a dictationist who merely records what is heard and publishes it, ignoring that it is no more than hearsay. More to the point, publishing such hearsay strongly suggests the Weekly has never spent any time with Mr. Crane, nor does it know much about an individual who receives a top-secret security clearance from the federal government. If the Weekly had any of this background, it might have known that the behavior and statements attributed to Mr. Crane are totally out of character, and challenged Mr. Osmolski's colorful narrative more vigorously.

We could offer more detailed illustrations that show how the Weekly uses hearsay that is disproved or contradicted by the official trial transcript. But perhaps a reading of Mr. Crane's testimony during cross examination by Mr. Risner speaks for itself. This is taken from Day 3, beginning on Page 12. We suggest members of the Weekly staff read it closely and repeatedly, and in the future provide readers with objective, documentable facts.

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