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Beyond comic relief in the Cobell trial

Analysis

WASHINGTON - U.S. District Court Judge James Robertson encouraged comic relief in his courtroom during the long, detail-laden hours of testimony in the trial on federal accounts of the Individual Indian Money trust.

Whether he deployed humor for deeper ends at the close of the case is anyone's guess.

As Cherokee attorney Keith Harper, representing the plaintiffs throughout the lawsuit, explained during an elevator ride between court sessions, rule number one from law school still applies: Do not try to guess what a judge is thinking.

The class-action case, known as Cobell v. Kempthorne after Blackfeet lead plaintiff Elouise Cobell and current Interior Department Secretary Dirk Kempthorne, has entered its 12th year; and the government's failure to account for revenues due to IIM accountholders, through royalties from leasing and the sale or use of natural resources, stretches back more than a century. The issue before Robertson's court is money: What is the sum due IIM trust beneficiaries from the government's failure to account for their money? Robertson has stated his strong hope of delivering a final judgment within the month of August.

Billions of dollars could be at stake, depending on Robertson's view of the proofs offered by plaintiffs and the defense mounted by the government. In any case, no one gathered to Robertson's courtroom considered it a laughing matter.

But comic relief could not have been more welcome as the case drew on. Reams of contradictory detail, competing economic models, fine-grained legal considerations and hair-splitting definitions of already obscure terms threatened to fatigue even the bravest attention. Robertson livened the proceedings with alert-making lighter moments, turning a sharp wit to ironic, caustic or congenial use on occasions past counting.

Determined to keep the many-layered case within bounds of the money question, he also raked attorneys from both teams with criticism and instruction, raising questions about the evidence presented and delivering lessons in trial practice with a kind of relish that came to provide an amusement factor of its own - for anyone but the attorneys, no doubt.

But at least one attorney held his own on the humor front. For the plaintiffs, Bill Dorris cross-examined defense witness and statistician extraordinaire Fritz Scheuren. Scheuren began with a barrage of apologies for this and that, but soon tended toward more peppery responses as Dorris rephrased his answers, adding single words that Scheuren resisted as misrepresenting his overall meaning.

After full and lengthy exchanges that had the makings of a classic courtroom duel (for the initiated at least), Scheuren acknowledged that Dorris was staying with him on the punishingly complex substance of econometrics modeling for missing data. ''You're doing a good job, by the way. Thank you.''

Dorris brought the house down with a Southern-drawled, ''There's one thing we can agree on.''

A trial (officially an evidentiary hearing) that relied for proof on missing data (much of it lost by the government) was bound to feature surreal moments. But at the midway point of the proceedings, Scheuren had provided the most surreal moment by far. After testifying, at length and in virtuosic detail, to numerical figures and data models that would have made any non-expert's head explode, he got crossways with Dorris on an undisputed monetary figure. After some brief back-and-forthing, Scheuren corrected himself and reverted to the apologetic mode. ''I'm not good with numbers.''

True to their running duel, Dorris almost matched him for surrealism. Referring to the statistician's concept of ''missingness'' that Scheuren had defined in its several variations, Dorris summed up his view of Scheuren's testimony concerning lost documentary data as ''too much missingness on the page.''

But Robertson trumped everything for comic relief on the trial's last day, serenading the court's information technology wizards with a musical clip from the number ''Dueling Banjos.'' He had planted the idea much earlier in the trial, as attorneys ordered up one data page after another on enlarging screens. ''The story of this trial, you know, is going to be dueling laptops,'' Robertson remarked. ''These guys are good.''

On the last day, as the famed strains of ''Dueling Banjos'' began to be recognized around the courtroom to general laughter, Robertson said, ''If you don't know bluegrass, then this will go completely over your head.''

The reference was to the so-called ''high lonesome'' musical style associated with the Appalachian Mountains. It has a zealous following in Washington and the surrounding states.

But was that the only reference? And was it the one that was going to surpass understanding? One would leave it at that if Robertson had, but he brought up bluegrass music again, most ambiguously. Interrupting the government's closing argument - that it could have offered proofs reducing its liability if time had allowed - Robertson quoted four lines of poetry: ''But at my back I always hear/ Time's winged chariot hurrying near;/ And yonder all before us lie/ Deserts of vast eternity.''

Cobell, plaintiff attorneys, IIM beneficiaries, congressional members and Indian-issue advocates must have said it a hundred times in a hundred ways - the government doesn't deserve more time to get its act together after 121 years, not when IIM beneficiaries (as Robertson has referenced in court) continue to ''die out of the case.''

That meaning was clear enough, though it was not necessarily obvious. The ambiguity lay in Robertson's mention of bluegrass. ''If you know bluegrass,'' Robertson told Department of Justice solicitor Robert Kirschman, ''you'll know where that poem comes from.''

The album ''Appalachian Stomp: Bluegrass Classics'' affords no clue. But in any case, the poem Robertson mentioned comes from one source only - ''To His Coy Mistress,'' by 17th century Englishman Andrew Marvell, beginning: ''Had we but world enough, and time'' and ending with a restatement of the Latin carpe diem, or ''seize the day,'' theme that still resonates after 327 years: ''though we cannot make our sun / Stand still, yet we will make him run.''

So the folksy bluegrass reference has a much larger context. And so does ''Dueling Banjos'' - the film ''Deliverance'' in which it first appeared. The film's story can't be summarized properly in a family newspaper, but suffice to say that one character gets an undoubted shafting, another meets with merited death, and two others die under doubtful circumstances. In the end, a local sheriff (American judiciary practice has its roots in the shire reeve of old England) sees through the likely story cooked up by the protagonists, but decides to deliver rough justice for the sake of peace in his neighborhood.

Bluegrass indeed. Robertson's neighborhood is a nation.

Interior flaws in the spotlight again as Cobell decision looms

Almost two years after testifying before Congress that ''simply stated, short of a crime, anything goes at the highest levels of the Department of the Interior,'' Interior's independent Office of the Inspector General is again excoriating a departmental culture that permitted the alleged preferential steering of a contract for Indian trust funds accounting.

The charges in a recent OIG report do not relate directly to Interior mismanagement of the Individual Indian Money trust, subject of a pending judicial decision on possible restitution in the case known as Cobell, after Blackfeet lead plaintiff Elouise Cobell.

But the report is another sign of problems with Interior trust accounts management, Inspector General Earl Devaney reported.

As such, it joins a volume of more or less similar indications coming out of the Cobell trial. U.S. District Court Judge James Robertson castigated both plaintiff attorneys and the Interior defense team after Ray Ziler's testimony, raising questions about its relevance under the exacting evidentiary standards of a formal court setting. But plaintiff attorneys defended it, and Robertson seemed to accept their explanation.

Ziler is a certified public accountant who attempted to audit BIA internal controls in the IIM management ''system'' some 20 years ago. (Robertson posed the question of whether such a ''system'' actually exists separate of the government's defense case.) He testified time and again, in detail, that the trust fund accounting and financial ''systems'' were inadequate, unreliable, plagued by fraud and theft, ''worse than we had originally realized.''

For instance, Ziler testified, ''I believe every [BIA] area office and agency had some ability to write checks on-site using [T]reasury [Department] check stock, and they kept stacks of them sitting around. In some cases they were unprotected, and we apparently noticed instances when we went to one agency office ... where they opened the vault, left it opened. All the employees had the combination, but they left the safe open all day long unguarded and unprotected so that check stock, you can just pick up a stack of it and take it.''

Checks could be written against IIM accounts, or the money backing them could come from the Treasury General Account that received IIM royalty deposits, Ziler said, ''and with a hundred different locations issuing checks, keeping track of the check stock and the used checks in sequence was a virtual impossibility. ... We knew that there was money being taken out to certain parties, but we could not get, at the time we performed the work we didn't have subpoenas or the IG didn't have subpoenas for their bank account records so we couldn't look at the other side of it, but it was, I mean, there were hundreds of thousands of dollars that were problems at that one location.''

Robertson has committed himself to delivering a judgment in Cobell in August.