The Election Contest Court (ECC):
>>heard the last 2 witnesses from the Coleman case
>>fined the Coleman attorneys for misconduct
>>took 5 filings from the Coleman side under advisement
>>ruled on 3 ballots and the city of Duluth request for more money for a witness
>>heard the Coleman case rest, and let Court out early at 1:00pm.
So yeah, a few things happened.
(Some Hunter Thompson wannabe got a diary promoted to the Front Page, which shows the depths of depravity DailyKos is approaching.)
Franken leads +246 (-3 on 3/2; the ECC ruled 3 of 24 ballots admitted on 2/10 be rejected for registration issues.)
For the best, one stop short version of where the case is and what news reporting once looked like and can look like again, check out Jay Weiner's write-up at the Minn Post:http://www.minnpost.com/...
For the long write up of the long, never thought we'd see it end beginning, c'mon past the Orange fold....
A) How do I feel after yesterday's diary went not only recommended (already a thrill every time I see it; really!) but the Front Page? Well, excited, giddy, needing a hard drink or a soft woman.....WOW! Thank you one and all for your recommends over the weeks and for your kind and enthusiastic comments after the Big Orange move.
Now if only George Soros would come across with the usual 20,000 in unmarked Euros in a handsome Gucci briefcase (although saddlebags are also very chic as Cleavon Little proved)....well thats what I've HEARD! I'll be SO disappointed otherwise....... (George? Your people didn't get here by sundown so ah, drop me an e-mail with the access codes for the Zurich Kossackitsche Orangimeister Sozialistify Amerika account, alright?)
B) Election Contest Court (ECC) Episode XXXI-- The End of the Beginning
The Coleman team dragged the last of their case like milfoil infestation clogging the propeller across the ECC floating dock Monday, a few more questions for state elections director Gary Poser, and one more round with Minneapolis election judge Pamela Howell.
The Poser testimony had one telling moment. Apparently a few absentee ballots were rejected because a state data base showed the voter had voted in person (Reason/Pile 4 legal reason to reject and absentee ballot. In-person takes precedence over absentee by law.) Apparently due to a data entry error some of these voters had NOT voted in person, and therefore their absentee ballots should have been accepted.
OK its a human system and errors happen. Normally it wouldn't matter but at a margin of 249, little errors matter. It LOOKS like a small problem (9 votes so discovered). The Coleman team did NOT offer evidence it is a BIG problem, but its something for Norm, and it IS part of the case record and so the ECC is going to have to do something about it. Kudos to the Coleman team for digging this out. It won't help them much but the MN election system can be improved and here's one way how.
On the other hand outside the courtroom the no-longer-accredited, got his "pro hac vice" ("for this case" permission to appear in court whle not a member of the MN bar) "Anti hac virtued" Ben Ginsberg told everybody in earshot not only was this a HUGE problem, but that the state of Minnesota's entire data system is "corrupt and it is impossible to have faith in (the information) in the system." (Which is different than the entire Republican party being corrupt and it is impossible to have any faith in its leaders and most of its members..... but you see where Ben got it from.) It is for the freedom to make whacked off remarks like this that Ben the Ginz withdrew as a lawyer trying the case. Yeesh!
Another Yeesh to Ginsberg came from Jim Gelbmann, deputy Secretary of State. Jay Weiner caught it at the Minn Post:
At first, the secretary of state's office declined comment. But the word "corrupt" proved to be a fightin' word.
Deputy Secretary of State Jim Gelbmann reacted to Ginsberg's allegations, calling the notion of corrupted data "false ... Minnesota's elections system has been recognized as one of the best in the nation for decades. Many states look to Minnesota as they attempt to improve their own systems."
You GO, JIM! Don't take that off Ben the Ginz. You slap him with a fresh caught northern.....still alive and hungry!
The Howell testimony was regarding the possible "duplicate ballot/double counting" issue which Coleman contends was worth 100-150 votes for Franken, mostly in the city of Minneapolis.
She actually made it to the end of her testimony today. Franken attorney David Lillehaug did NOT start 5 steps back, a black leather brace on his right wrist and a 16 pound ball with a 3 foot by 10 foot loft and make a Motion to Strike her testimony today. (He spared her that! :-) No "gutter"-al remarks now.) He DID work hard at undermining her credibility as Noah Kunin reported for the UpTake:
The Franken cross-examination was long and contentious. The main thrust of the Franken argument was that (Howell) had no first hand knowledge the labeling (of duplicate and original ballots) did not occur. David Lillehaug, representing Franken, also raised questions on the timing of her report of the incident. In other precincts an incident report was immediately filed when ballots were not labeled "duplicate" - Howell did not recall filing an incident report and no such report can be found.
At MOST Ms. Howell contended the duplicate/double count MIGHT have happened in her precinct on 14 instances and not all these on Franken ballots. The Coleman side has held the issue was widespread (100-150 ballots; still a mystery where this number came from) but offered no other witnesses or evidence that it was, which left the whole claim limper than cheese off the edge of hot pizza.
It also appears Ms. Howell had reason to be leery of testifying and had cause to be borderline hostile (in the legal sense) when being cross-examined. Noah's paragraph above closed with THIS little pointed icicle:
During the recount, the Franken campaign issued a complaint against Howell's handling of ballots.
Really? Being a little sloppy or snappy even then, Ms Howell? (Not as overt as the woman in Dakota County who was caught putting 26 Franken ballots in piles meant to be 25. At the end of the session you count by 25s. If a stack actually has 26 it lowers the overall total. Once might have been innocent. When she was caught a second time several piles were recounted and she had gotten to 6 of them. No charges ever filed BUT I doubt she'll ever work an election again.) But whatever Ms. Howell was or wasn't doing during the recount was apparently enough to trigger a formal complaint. So was she on the stand in.... payback? Reluctant to face more of the same?....Hmmm. Speculation welcome.
C) Sanctions Delivered on a Lawyer
When we last left the ECC Friday afternoon they took under advisement a Franken motion: a) to strike Howell's testimony, b) to strike the CLAIM in her testimony (that is the issue of double counting duplicate ballots) and c) to sanction Coleman's attorneys for violating court rules on discovery and coaching/tampering with a witness.
When Ms. Howell first thought she saw double counting of duplicates she had started a computer file of her thoughts (and labeled it "testimony".) She contacted Team Coleman about it, Tony Trimble's office. She showed them her notes and they had several e-mails and phone calls with her about it (including phrases like "we don't want to lock you into your testimony"). NONE of this was passed on to Team Franken or the Court in pre-trial "discovery"--- major no-no. It got her testimony stricken, then re-instated after Trimble apologized to the court for not sharing her notes, then re-exploded when the e-mails came out.
Court started late Monday as lawyers and judges met in chambers to hear the decision. When court opened Ms. Howell was allowed to testify and the court "sanctioned" the Coleman lawyers (Trimble in particular I believe.) Late in the afternoon came word: sanctions for $7500. This is payable to the court I believe and, can a MN lawyer fill in, is it due at the end of the trial, or in 3 days, or....when?
The fine comes from the lawyer (who, yes, I know, is going to collect it in fees from Norm Coleman) but Norm has EVERY right to expect to see on his bill, just before the grand total in the lower right hand corner, an item like "Attorney Sanction, pd to Court" and a BIG MINUS $7500.00.
Go get 'em NORM! Yes its just a drip off the ice dam backing up under your shingles, Norm, but you have every right to give Tony a headslap! That is REALLY BAD lawyering when the COURT lays down a 75 C-note marker on YOUR mouthpiece.
GRrrrr....... this is the kind of crapola that gives lawyers a bad name. If lawyers are necessary (and its seems they are) well let them be honorable, diligent, vigorous and meticulous. Getting sanctioned by the Court? $7500? Hey, this is the NFL giving a two-game suspension without pay to your cornerback for that nasty hit out of bounds. Ya like the guy, you're going to miss him against the Steelers and the Browns, but even a red-hot home fan in purple braids reeking of spilled Summit Pale Ale will say the league made the right move.
So here too Norm. We will all turn our backs for 10 seconds while you wind up for a sharply-struck corner kick, well delivered to the gluteus splaticus. There will be no witnesses. (Then we'll go back to cheering for Al, Norm. But this is a freebie.)
D) Hey! Lawyers are Human too!
And oddly continuing a streak of saying nice things about the other side, Court was on a break near noon when singing broke out. Both tables in Coleman vs. Franken joined in. Really. As hard core as its been sometimes IN court these people are still people and, thank the holies, they check their light sabres at the door going OUT of the Court.
About noon, led by Franken lawyer Marc Elias, attorneys from both sides and – dare we say some of the media corps – sang "Happy Birthday" to Coleman lead litigator Joe Friedberg, he the veteran Minneapolis criminal defense lawyer.
He turned 72.
So Mr. Friedberg, on the occasion of a perfectly timed birthday at a natural break in the trial, for all you have tried to do for your client and thereby contributed to justice being served in a court of law rather than on a rack, or via vengence, or by fire or water, or by duel to the death (all kind of ways humans have invented before law for all), WineRev offers you a Happy Birthday salute! (Today of course its back to cheering for Hamilton, Al, Marc and Lillehaug....wait, didn't they do "Don't Pull Your Love Out on Me Baby" in another life? Hmmmm.... how DID they pay for law school?)
E) The Contestant Provisionally Rests
Thats what they said just before 1:00 and school let out early. "Provisionally".... man, can't we ever get SOMETHING solid from these people? OK, I get it. You do this "provisionally" so those last minute or final papers you had due can get turned in for a grade for THIS nine-weeks.
And thats what happened. If you go to the MN Court webpage for the trial you'll see 5 items the Coleman side downloaded into the ECC in-box.
And they have been busy little lawyers! 3 of the items are related to a Rule (9) both sides agreed to for the Recount. Specifically, in the Recount there were many situations where a duplicate ballot had been made of an original so it could be run through the counting machine. SO, on election night, original ballot saved, and its duplicate run through machine for the count in the precinct. OK?
But for the Recount it is a HAND Recount, no machines. All 3,000,000 ballots shall be tallied by hand. OK, for this one, no duplicate for the machine is needed since the machines are not being used. Human eyeballs will do the reading. Both sides stipulated (agreed; I DO NOT know if this was "stipulated with prejudice", which we have all learned is lawyer talk for "no crossed fingers, no givebacks and no do-overs".)
Rule 9 said both sides agreed for the hand recount we should use the original ballots. Fair enough and, as the Coleman lawyers point out (with all the excitement of announcing "the Sun rises in the East") the originals are "best evidence." Cool, and so it was in the Recount.
NOW in their 3 inter-locking items Team Coleman wants to throw out Rule 9, claiming the agreement itself was in violation of MN election law. And they have memoranda and legal citations and 14 pages worth of stuff and really actually sound like lawyers.
This isn't half-bad. Stipulation or no, if its in violation of law then the stipulation is void, even I can see that. As near as I can make out (jump in anytime Oh Perry Mason wannabes, Matlock mavens, LA Law longers; you can say it better than I) they are claiming this use of original ballots was not done, or was done haphazardly, or inconsistently. They are using this to get after the Minneapolis 133 (again!) because of course those original (in-person instead of absentees for once) ballots are missing. It also supports their "equal protection" claim they seem to be readying for state or federal appeal. It is of a piece with their on-going "no uniform standards" mantra (which reductio ad absurdum would mean only PERFECT elections would be acceptable and therefore elections should never happen.)
This also fits with another item filed with the Court, a letter from Coleman attorney James Langdon. Langdon argued last week that one remedy the court could use to clean up the absentee ballot "mess" (messy only because of the efforts of TEAM Coleman) would be to reduce the count of absentee ballots (all 286,000 of them!) by mathematical formula. Failing that the court should overturn its 2/13 ruling (that threw out certain categories of absentee ballots that the Coleman side had obviously been counting on heavily.)
Much of this was repeated in Langdon's letter, citing neighboring states (and cases back to 1912! Good work, James!) who had used a mathematical approach. He does keep calling these issues "illegal" ballots. And he now offers in writing what the Reichwingers have been clamoring for in their talking points: if there are so many "illegal" votes in dispute, well, with a heavy heart, the court can "set aside an election" ...... and call a new one.
OK, there it is in black letter Letter, folks. THE forlorn hope of the Coleman campaign, an official request for a statewide "do-over."
Sooo... while the Franken side of the case launches today the court has these items on their back burners and can rule on them at anytime.
F) Odds & Ends
Signs of.....something I guess. Last week PR guy Luke Friedrich quit the Coleman campaign to take a PR job with newly elected congressman Eric Paulson (R) (MN-03, Jim Ramstad's (R) old district; Ashwin Madea was the unsuccessful D nominee.).... Then, over the weekend the office closed for the "Coleman for Senate" campaign. Word officially is that their lease ran out.... Now comes word that Mark Drake, another PR guy, has left the staff. No job upcoming but he's going to explore opportunities.....
OK all these people and offices cost money. The offices seem superfluous at this point. And with a PR ball of fire like Ben the Ginz well, what further need have we of anyone else? But still ..... is it a sign? We'll see......
The ECC also ruled Monday afternoon on Jeff Cox, the Duluth city clerk issue. Mr. Cox's is city elections director and Team Franken has called him as a witness for their case. The city admin. and city attorney got involved. It sounded bizarre when I posted it in Saturday's diary (complete with a Duluth Power Dressing guide) but the reality is much sadder.
In a case like this "court costs" you hear about include the court paying a witness mileage & compensation as permitted by law. (Same sort of thing as happens for jury duty.) MN Law (like a lot of states I'd wager) is pretty lean on this: $20/day + about 30 cents/ mile round trip. A court can pay more but its under unusual circumstances, and this case doesn't count.
Duluth city attorney filed to get more, like $1100 to offset expenses and loss of labor. It was calculated on a 24 hours running clock (so Mr. Cox would get paid for sleeping at the Motel 6 if he had to stay overnight.) Thats what came off as so bizarre.
But Duluth asked for this because the city is so broke! As kossack and Duluthian rincewind puts it, "the city is so far down Normie's bellybutton looks like up." To try and get another 1000 bucks or so covered in the city budget they went and asked for more.
The ECC, sticklers for the law that they are, turned them down, but then their hands are tied by the law. Raising these compensations isn't real high on anyone's list and you can see what an easy target they would make for budget cutters in hard times particularly.
A melancholy story from Steve Wente in the Duluth News Tribune:http://www.duluthnewstribune.com/...
Tuesday Morning Minnesota Media
Over at the MN Progressive Project the BigE has a nice catch from the Rochester Post-Bulletin daily. A MN Repub. activist was granted an op-ed space on the MN Senate race and he ran with it a LONG way. Unfortunately he was on a short pier. Fortunately its winter and there's ice under the pier. Unfortunately Mr. Araoz (is that name anywhere CLOSE to MN?) came off with such force he broke through the ice and is now swimming around looking for where he went in.http://www.mnprogressiveproject.com/...
Doyle & Duchschere are front pagers too!......of the B section as Norm's case rests. Focused on Norm but understandably so since "Finishing Day" is news...... They call the sanctioning of Coleman's lawyers a "dustup" but they do quote an ominous line from the sanction order:
"In the event this sanction fails to deter future conduct on the part of [Coleman's] counsel, the court will not hesitate to impose harsher sanctions, up to and including dismissal [of the case]," the judges wrote.
All in all, not bad for D&D: http://www.startribune.com/...
Rachel Stassen-Berger's story at the Pioneer Press was filed mid-day and is short on info (later filings; sanction order) so today Minneapolis citizens win the "more informed" voter contest.
And what will today look like on the UpTake and in Room 300 of the Judiciary Building? Well Jay Weiner of the Minn Post quotes Mark Elias of the Franken team. In five weeks Team Coleman managed to get about 20 voters on the stand to testify about wanting their vote to count (and sometimes blowing it too). 5 weeks, 20 voters.
Elias says Team Franken plans to call 20 voters too .....TODAY and more if there aren't too many objections from the Coleman side. Wednesday one of those called will be the UpTake's own Noah Kunin (East Baltic power!). All wait to see if Noah will learn how to tie on a tie for the occasion....
OK hope that will hold you until 9:00amCT at the UpTake when the 6th grade orchestra of the Cool Coleman Cids has finally been ushered off the stage, earplugs are unplugged, gum scraped off, and there is a hush. Tuxedos, floor-length gowns, and patent leather here and there. A baton rises, swings in tempo, and the entire hall knows the Academy of St. Martin's in the Fields is here and THIS is how Vivaldi should be, THIS is how Sibelius should flow and THIS is how a case should be played, sung, presented and tried. To harmonious case-ifying from yust southeast of Lake Wobegon.
Shalom....2, 3, 4.....
Shalom.