With time running down for both parties, today was the the last day for actual evidence (what there is of it!) to be presented in Andy Stern, Mary Kay Henry, Anna Burger, Dave Regan, Eliseo Medina, Leon Chow, Steve Trossman, Rebecca Malberg, and SEIU's case, and the defense rested their case only about an hour into the morning.After Barbara Lewis's cross examination was completed pretty uneventfully first thing, the defense called former UHW officer and hospital division director John Borsos to testify calmly and lucidly about about how NUHW was formed, and thoroughly impeach ("show to be lying" to us non-lawyers!) Denny Henriquez, who testified for the plaintiffs at the beginning of the trial. Henriquez testified that UHW staff had given him decertification petitions to circulate before the trusteeship was imposed. According to Henriquez, there was no place to write the date on the petitions he used, but this morning the actual petitions were produced, and showed his signature right at the top of the page, his signature again, to show he was responsible for gathering the other names on the sheet, and the date - 1/29/2009 for every signature on the page!
SEIU's lawyer Gary Kohlman (top) - whose near meltdown is one of the best stories Perez has heard today - first tried to say that Henriquez's signature was forged (by pointing out a supposed spelling error that was actually his own misreading) and then argued that the dates must be forged because they were all written in a similar style! It was the desperate tactic of a man with a thin case and only a minute left on the clock, and as one of SEIU's "member bloggers" would say... didn't work! Readers report that they could see Kohlman's hands shaking on the projector screen as he got more and more agitated!
Then with only a few minutes left, the defense called nursing home worker Eloise Reese Burns. Her testimony might have been the shortest of the whole trial. Reese Burns said simply that she had been the elected bargaining chair of her facility for contract negotiations in 2008, and that John Vellardita had asked her to poll the bargaining team (with representatives from the other nursing homes in the chain) on whether they would support canceling their contact extensions as part of a pattern bargaining strategy. Every member of the team wanted to go ahead. In response, Kohlman asked Reese Burns when she knew about the formation of NUHW! January 28th, she responded, and that was that!
Well, except for the plaintiff's rebuttal - a brief opportunity to respond to the evidence presented by the defense. For their rebuttal SEIU played a section of the video deposition of former UHW staffer Elizabeth Ortega, and a clip of John Vellardita's deposition about the scheduling of staff meetings that they'd previously "been unable to find" (or could it be that they just wanted to get it in last with no chance for the defense to respond?). There was some debate about allowing the video, but the defense lawyers declared it "not very interesting", and the judge seemed to agree, exclaiming "Is that it?".
And then the judge sent the jury home with another reminder not to "go on the Google!" They'll be back tomorrow to hear closing statements from both sides and the jury instructions, and then to begin their deliberation.
About 50% of the real meat of this case has always come when the jury is out of the room, and today it was apparently about 90%! Two things were up for debate - the "Rule 50" arguments - which are all about what charges and issues should actually make it to the jury for a verdict, and the jury instructions - which are about the parameters and guidelines the jury should be given to help them. This case is so complicated and such a mismatch between what's right, what's legal, and what SEIU want, that the jury instructions are especially important.
There are too many different legal things going on here for me to try to explain for you, or for my readers to explain for me, or even probably for my readers to get their heads around! Readers write that even the judge seems confused (and irritated), resting his head in his hands, and shutting down the lawyers when things get too convoluted. SEIU are relying on several different sets of state and federal laws (as well as the local and international union constitutions) to patch their case together, and it sounds like they try to switch them all around when one approach hits a brick wall!
Some of SEIU's arguments are plain scary. They would like to have the judge tell the jury that if anyone who is employed by an organization spends even five minutes of time outside of work hours on something that organization would not support, then they are violating "faithless servant doctrine" and owe all their salary back to the organization! They claimed today that they had "paid for the loyalty" of UHW officers and staff (wasn't it the members who paid for that?). They also argue that obeying the SEIU constitution in good faith would not be enough, because Andy Stern's interpretation of what it means is the only one that applies! And then they are trying to argue that any breach of the union's constitution is automatically a breach of fiduciary duty even if it doesn't involve money. They would also like the judge to hold that shop stewards can be held liable for damages if they breach their union's constitution!
"Let's just say a local is totally convinced, 100% convinced that the international union is totally corrupt..." asked Judge Alsup today. "They want to get out of the international, maybe join another international. So then the international comes in and says "No, you can't do that, you're violating your fiduciary duty to us. What other remedy would they have?"
SEIU's answer? That (as we all knew) there's basically no remedy within SEIU for a local that recognizes the threat the international poses to union members' rights and freedoms.
But now for the fun part! Today SEIU put up a lawyer readers haven't seen much of before. He's sat quietly for most of the trial, and Perez hears he should have stayed quiet today! First he told Judge Alsup he thought he was violating his oath of office by refusing to make the change to the instructions this lawyer (Perez doesn't know his name) wanted! The judge was clearly annoyed, but told him "You're a young guy (he's not!) you'll live and learn!" But the lawyer kept raising his voice, interrupting, and pushing for changes to the jury instructions, all while bobbing his head and wringing his hands behind his back! Perez hears he smiled at NUHW lawyer Dan Siegel, and Siegel looked at him like he was crazy and edged away! At one point the other lawyers from his own side shushed him! The SEIU lawyer did manage to get a few of his points to stick, but maybe not ones that will help his case - as the judge told him "I think you're going to regret this! Don't complain to me later on if you wind up getting a big zero on this one!"
So readers report that it sounds like the judge will reject many or most of SEIU's arguments, but it won't be clear until the jury instructions and rule 50 decisions are final tomorrow. Judge Alsup was apparently pretty skeptical of SEIU's whole case today, telling them that he only knew who three or four of the defendants were, and he didn't think they had enough evidence to go to the jury on most of them.
"There are too many defendants there, and you ought to be thinking about how to convince the jury that every single one of them ought to pay money to someone!"
And that's a fact!
