Summary of Hearing in Barnett V Obama

September 8, 2009, Before Judge Carter.

(As Reported to Me by Tes via waveydavey)

It was a packed courthouse. When they saw how many

people showed up, they moved to a new courtroom that would seat

more people. By waveydavey's estimate, there were about 120

people there.

Even with the new courtroom they did overflow, into

the original courtroom, that was able to show audio/video of

the hearing.

They did not even get into the courtroom because of

so many people, and because of the backup from -- supposedly

Monday there's a motions call -- as reported by waveydavey --

and while it wasn't exactly clear, it appears that Monday is a

motions call, and all the motions that would have been heard

Monday were pushed to today because of Labor Day. Therefore,

they didn't even get into the courtroom until about 10:30.

Orly seemed not to have learned her lesson from the

last time. When she came into the courtroom there was another

hearing still going on and -- either still going on or they

were waiting for it to go on -- and other counsel were at the

counsel table, and she went up to the counsel table, as if she

was going to sit down, and had to be told again "No, wait your
turn." So she had to go sit back down.

Her case came up at 11:00 a.m., and the judge started

the hearing by itemizing the three issues to be discussed. He

ordered them as service of process, Drake/Robinson plaintiffs,

and then the motion for recusal of Judge Nakazato.

With respect to service he asked whether service had

been effected. For the U.S. Mr. West spoke -- DeJute was also

there. West is DeJute's boss -- West said yes, service had

been completed. Then the judge went on a soliloquy recounting

the whole service fiasco with the mail clerk, and all of that.

Waveydavey said the judge was shaking his head over that.

He thanked all the parties for resolving this issue

and he's very glad that the issue of service was finally over.

He continued throughout the hearing, actually praising the U.S.

attorneys for "nurturing" the process along, and he thanked

them repeatedly for helping Orly serve properly. He made that

statement several times throughout the hearing.

Next he moved to the Drake/Robinson motion. He

talked about the Rule 16(b) issue. Drake and Robinson were

both present at the hearing, sitting in the audience. The

judge was trying to get Orly and Kreep to resolve this thing

between them, but they clearly, visually, had issues with each

other. They had to sit at the same table, but they were

sitting as far apart from each other as possible, and the

dislike was palpable.

 The judge referred, at this point, to the fact that

he understood at the July hearing that she was filing a

motion -- an amended complaint to narrow the issues, but he now

sees that the new amended complaint is actually much broader.

Orly tried to talk, but she couldn't figure out how

to get the mic to work at this point. After she struggled with

it a while the judge got up off the bench, went around to her

mic and helped her turn it on, because she could not figure it

out herself, so the judge did it for her.

Orly and Kreep were apparently arguing against each

other about how they can't work together.

Orly kept wanting to talk about other issues, but the

judge kept pulling her back saying, "This part of the hear is

about Robinson and Drake."

The judge told her, "You are about to cause a huge

delay, and cause a procedural quagmire because of your refusal

to work with each other. Because of this dispute between you

and Kreep, you are going to delay everything.

"Is this about you representing your clients or is

this about you, personally? Orly interrupted him, and he said,

"I know you always have the answers, but you'll get a chance to

talk later."

At 11:20 he called a recess and told Taitz and Kreep

to work it out. "If you don't resolve this we're going to be

talking about this three or four months down the line. This
whole dispute undercuts your argument that it's urgent, because

you refuse to get along together, even though it's urgent. You

are saying things are going downhill, but you are the one

causing delays by not resolving this issue."

Then the judge said when he gets two different cases

filed in his court that are covering the same issues he joins

them together anyway, "but you, Orly, are asking me to separate

them, but the ultimate outcome, if we continue down that road,

would be to join them anyway. That's the practice, so you need

to just deal with it."

Orly didn't like his statement at all, "just deal

with it," and she kept making the point that her theories are

very different than Kreep's. His only concern is with the

place of birth, whether or not Obama is born in Hawaii, while

her argument is two citizen parents, that it takes two

natural-born citizen parents to be a natural-born citizen.

She did not want to be concerned with him, because

her arguments would be watered down or she would lose half of

what she considers to be her case. The judge said, "No, you

guys have to work it out," and called a recess. The recess was

called at 11:20.

At 11:30 they came back and Kreep said, "Taitz will

in no circumstances work with me."

Taitz said, "I tried in good conscious to work with

him," and then she began recounting the Keyes v Bowen state
case. She complained with how he handled the case, in that he

left the country when it was going on, and there was some

hearing, I guess, while he was out of the country, and the

problem, she said, was that they weren't able to get a hearing

because there was improper service which led to delays.

Kreep responded that the Court should review the

state court file in the case, which would prove that Orly was

wrong. The judge responding to this saying, "Because of your

refusal to agree, the merits will be substantially delayed,

which is not a good result." The judge said, "The difficulty

with the delay is that if Obama is legitimate to be president

this delay undermines his credibility, which is not good for

our country.

"On the other hand, there's an equal problem if Obama

does not meet the requirements. In that case this delay will

cause that issue to be heard further and further out, until

someone can deal with that. How does anyone benefit from a

six- to 12-month delay," he asked. Then he said, "I

think I'm going to force you to be together. Drake and

Robinson are to remain in the lawsuit." He then directed Kreep

and Orly to move their chairs closer together and said, "You

need to work together." They moved the chairs together, and he

said, "I now see the two of you as one."

He then assured Orly about her concerns by saying

that he would not preclude her from presenting different or

contradictory theories. He said, "You'll each get to have your

say."

At that point West brought up the Motion to Dismiss.

The judge said he had not yet seen that motion. He was in over

the weekend but that motion had not gotten to him yet, so he

couldn't talk about it because he'd not yet seen it.

He then started talking about having a scheduling

conference with all counsel. He referenced the 12(b)6 rule,

which is the motion to dismiss. He said, "I haven't yet seen

the motion. I will look at it right away. In the meantime

let's proceed to talk about a scheduling conference." He then

set October 5th for the Motion to Dismiss hearing, saying if

that motion fails then we'll have a scheduling conference on

the same day.

West agreed to that. Orly said she's not happy with

that. She wants an even faster schedule. She mentioned her

Motions For Letters Rogatory. She then asked whether they

could have testimony from Lucas Smith (who was in the

courtroom.)

The judge did not like that at all. He said, "You're

bringing a witness in here without notice? This is surprise

and ambush. You are not going to do that. According to

waveydavey, he was not at all happy.

West and DeJute also objected, strenuously, saying

they had heard nothing about her bringing a witness.

 The judge then goes back and gets everyone to agree

to October 5th, at which time there will be the Motion to

Dismiss and the Scheduling Conference. Then after some give

and take about scheduling he said -- and waveydavey wasn't

exactly perfectly clear -- but he thought motions due November

16th, like any dispositive motions in the case -- he would hear

the motions on December 7th, pretrial would be January 11th,

and trial would be January 26.

Orly didn't like that. She asked again for expedited

discovery, saying that it could prevent the need for a trial,

because if proved he was not eligible he'll just resign and

we'll have new elections, to which West responded, "Wait. We

still have the whole issue of subject matter jurisdiction,

standing, et cetera, in the government motion. No discovery

can go forward while the motion to dismiss is pending.

West also said he was going to ask for a stay for all

discovery pending resolution of the Motion to Dismiss, and he

said he'll be filing an ex parte motion for a stay on Friday.

By this point it was 12:00 noon, and the judge

switched gears to the recusal motion.

The judge reviewed the motion and read the relevant

law, and then he told Orly, "What Judge Nakazato did was what

would happen in 10 out of 10 times in a case. It's the normal

way that we follow procedures. He denied the motion to set

aside saying it was moot. He also said Judge Nakazato made a

correct ruling.

On the motion to recuse he dismissed it without

prejudice, but noted that it was pointless to refile because

all Judge Nakazato did was follow the rule, and there's no bias

in following the rule.

Orly then said she wants the letters rogatory to go

forward. The judge responded, "Just a moment. We can't do

discovery due to the motion to dismiss. There's also a pending

ruling from Judge Nakazato," -- which would be the ruling on

the discovery motion.

Orly then said she "has a witness here in the

courtroom today who is afraid for his life. Let him testify

now," and if you decide it's not appropriate we can always

strike the testimony later."

West objected strenuously saying "This is

sandbagging, surprise," and all of that. And the judge said,

"I don't intend to let two witnesses come in on the fly without

notice. The judge then said, "Usually this kind of thing would

be accomplished by deposition."

Then, in waveydavey's view, he started playing

devil's advocate with the government. It seemed to waveydavey

that he was playing devil's advocate, not that he was really

serious, but what he said to the government is, "Why can't they

just do a deposition since the guy is here?" -- (waveydavey

said everyone seemed to be under the impression that Smith had

just flown in from Kenya) -- so the judge was like, well, he's

flown in, why couldn't they just do a deposition.

At that point the Orlybots loved it. There was

general clamoring in the courtroom such that the bailiff had to

ask for order in the courtroom.

West, of course, didn't like that idea of

depositions. The judge said he will read the U.S.'s Motion to

Dismiss, and started hinting around about some sort of

deposition by Friday, exploring the possibility of going ahead

with that.

Then Orly launches into the whole thing, telling

Lucas Smith's story. The judge interrupted her saying, "You

know, I don't want to hear this. I have to read the

government's motion. That may resolve everything, if I don't

have jurisdiction.

By this time it's 12:15, and West says, "There's no

reason to believe that a witness will be killed." The judge

cut him off and said, "We're not going to have this testimony

going forward. We're just not going to do that."

So the next thing was a question about a hearing

before Judge Nakazato, and waveydavey said everybody was

confused about it, no one knew what it really was.

(As an aside, what it has to be is their Amended

Motion For Letters Rogatory and Deposition, because that's the

pending motion that was filed, I think, August 14th.)

 Orly came back and said, "I'm getting death threats

every day. I get death threats on a daily basis." She

referred to Lieutenant Harris -- the passport guy -- as someone

who came forward with testimony and was killed.

She said again, "I have a witness here in fear for

his life. I asked for a hearing behind closed doors or voir

dire because he has to be able to testify. It has to be done.

I leave it to you to decide the best way."

The judge said, "We need an orderly process. Each

side must have a chance to respond," and that was the end of

that.

As a final thing the judge read the First Amended

Complaint that added all the additional plaintiffs, and he

referred to that again saying, "I thought we were narrowing

this case. All that happens when you add additional plaintiffs

is that it drags things out. It's not good for the country and

it doesn't help your case in any way."

(Waveydavey said it seemed to him that the judge was

asking her to narrow her case again, you know, get rid of some

plaintiffs.)

Once again the judge praised the government for

helping to nurture the process so that issue could finally be

dispensed with.

He didn't take Taitz to task, but continually praised

the U.S. for bending over backwards to help the other side.

End of summary.