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A full day coming up today: Court resumes at 9:00am CT

I'll be at work for the early shift so I can kick this off but I know from stuff happening today I won't be able to co-ordinate a live blog handoff series (how do you people do that? Its amazing; I was a nervous wreck yesterday just going from my diary to jimdotz's and lining up beastiemom's. Petrifying if you ask me!)
OK a rec or 2 will keep this diary up until 9:00 when the comments will fly; thanks in advance.

Short: Franken +225.
Day 1 in court: Coleman case threw a rod as we watched. Its still running, but not well and with a lot of smoke and noise (you know, like the rest of his campaign.)

An excellent recap of the day's events at ourhispanicvoices diary here:
Background on the case and personalities in yesterday's diary here:

Foreground (hash job) past the fold, and links to better recaps at the bottom........

UPDATE #1 I'm checking in at lunch at the wineshop and....the glaciers are coming! The glaciers are coming! All things are on full stop as the 3 judge panel is working out some sort of order to both parties to "get the trial running smoothly." Given one side filed a Motion to Dismiss (Franken; "lets get out of here yesterday!") and the other side wants to read the name and precinct of 12000 absentee voters into the record one by one (Coleman: "NO we won't let you group all the Andersons, Carlsons, Larsons, Olsons, OlsEns, Swesons and Swansons together because then we'd be done in 17 minutes, and we want this to go a LOT longer.") its going to take some time for the Court to build a bridge over that Great Rift Valley. Paint Drying Channel indeed! Gotta admit the ballot challenges were a LOT more fun. As with all things in the MN Senate Recount, "Well see."

I was trying to set up links to jimdotz and beastiemom yesterday and some glitch in either Windows or the network in the wineshop would only load the link at the bottom of this diary. I'll try again at the wineshop but LOOK TO THE BOTTOM OF THIS DIARY if you don't see the links. They may be there.

Media feeds:
Kare11, KSTP, Star Tribune at their respective dot coms are other possibilities but all are getting their feed off the same pool camera and audio in the courtroom

Nota Bene: To those watching various live feeds: Attorney tables are NOT miked. Attorneys who move around the room or turn away at the podium are NOT wearing body sound quality in the live stream is uneven and often poor. This is NOT the fault of the UpTake or any feed. The issue is in the Courtroom itself which is NOT set up for media or for lawyers moving around.  There may be adjustments as trial goes on but set your bar low for expectations.

The Elections Contest Court (ECC) Episode XII
The Lawyers
    Yesterday we had opening statements from both sides. Now opening statements are not testimony but rather like the preface to a really good book. A good preface gives a few explanations, sets a certain tone and, if done well, helps you smell the flat mud salt off the Thames and hear the skritching snick of tumbling autumn leaves being whipped across the cobblestoned lane toward you by a chill wind. A few stray raindrops spatter your sleeve as you pull your collar more snuggly and squint ahead at the gaslight, hoping its the one by home. You quicken your pace against the rising wind and falling light and turn to the first page of the novel proper to read, "It was a dark and stormy night...."
     In a trial there are 2 prefaces. Each side leads off with an opening statement to entice the court to read the evidence, understand the witnesses, examine the exhibits THEIR way. Yesterday each side was given 45 minutes for their openings. Late addition Joseph Friedberg from Coleman led off. (The FORMER Senator Mr. Ordinary-Citizen-like-you-and-me Norm Coleman was in attendance.) Mr. Friedberg's preface/opening statement was  liberately....and .........slowly, in a medium deep, sonorous voice. in drop the first "o" and say the word out loud and the man was a standing bottle of Ambien or "Let's Doze." (Court began at 1:00pm)

Friedberg has to talk slow, he has nothing but has to fill 45 minutes.

1:03   OMG Freidberg's voice is sooo soporifc. I feel myself nodding off already.

how long ago did he start?

"Now, when I was a child, my momma told me..." Blah, blah, blah... "..Oh, I'm not wasting your time, am I?"

Some illegal absentee ballots should be counted because statistics demands it.

i like when judges look over their glasses at the lawyer whilel writing... its like they are saying.. please proceed... im making notes here to rip you a new one (All 3 judges wear glasses-WR)

So he wants to include illegally cast AB but throw out ballots that it is indisputable were cast, but were lost by the election judge.  How is this argument even possibly consistent with their AB ballot argument that don't fault the voter if the election judge sent the wrong envelope, put a stamp over the sig line, etc.  How can he argue this with a straight face?!

wow, the commentary here is a lot more interesting than coleman's arguments

And most damning:
I just can't believe Friedberg did not show up today with a concise list of "we will demonstrate"s that pointed to a clear interruption of a fair democratic process.

  Those were just some of the choicer comments over Mr. Fiedberg's opening statement, complete with Perot-style, crazy aunt-in-the-truck graphs on poster board, which he used for...6 seconds....

    Kevin Hamilton spoke for Team Franken. He invited the court to read the case rather differently and took the dastardly and daring approach of law!........ facts! ......... evidence!.... .....logic!

no, wait, this can't work, It's logical and orderly

It's... It's almost as if he's making a sensible argument. But... I'm not used to that.

If this reading of the law is accurate, he's really delivered a body-blow to Coleman.

Wow - you mean they actually have to show evidence that votes did change the outcome of the election? Strange that the Coleman folks didn't mention that.

Ooh, an overhead projector. Beats the Coleman's camps bar charts...he can actually stay at the microphone that way.

The judges look more attentive to Hamilton than to Friedberg

Isn't it fascinating how much actual content and evidence the Franken team presents, as opposed to the Coleman team? Amazing how that works out.

     Hamilton put the burden of proof where it belongs..... on the Coleman team. He cited statutes, including some noted by Friedberg (as in "he said this, but as we all know by these precedents, it rally means that...."). He defended the process and those who worked in 4131 precincts across the state to make the election happen, happen right, happen fairly, and, when it was really close, happen to give it all a second look (3,000,000 times!)

By reiterating the law, you are laying the foundation that there are laws and rules you must follow. it's a well skilled attorney that is bringing it up to keep the judges focused on the law and not baseless accusations

    The best part of Hamilton's argument was the opening, citing statute and in effect demanding the Coleman team to produce EVIDENCE of a result changing error, rather than speculation that such an error might be revealed under the "right" circumstances.

    Well after that ("always like to keep my audiences RIVETED") the judges took a 5 minute recess for 10 minutes. I don't indulge, but those openings, especially Friedberg's might cause me to take up smoking.... something strong. (Judges' chambers voice: "Look like I picked a bad week to give up drinking....")

Witnesses and Evidence
    So onto actual "Raise your right hand. Do you solemnly swear.." stuff. Two Coleman witnesses called to establish the Coleman side's "chain of custody" of photocopied ballots. They are trying to use these as a "sample set" of ballots to show the ECC how things have gone wrong with the Rejected Absentee Ballots. This is to set up their effort to get the ECC to order all 11000 sent in the the ECC for examination. (You know, that motion the ECC last week DENIED the Coleman camp in a pre-trail motion?)
    The actual, physical ballots are still in the counties-- all 3 million. You can't touch 'em (literally) without a court order, which in effect is what the Coleman campaign is going for. Coleman requested photo copies from the counties (and by rule of discovery, Franken side gets a copy too). Thereby hangs the real tale of yesterday. The witnesses testified, the Coleman photo-copied ballots were brought forth....
     AND...... the whole thing started to capsize in public. If you or I are working in a law office and we get an important piece of paper like this in the FedEx mailer, SOP is open it, copy it, and put the original in the vault (most law offices have one). This is EVIDENCE and you MUST play CSI (Vegas, Miami, NYC, doesn't matter! This is important stuff thats come in so be careful, be sure, and log everything!) Run off as many copies as needed so everyone can eyeball them, ask about "FSM" on the margin, see if the envelope is signed, etc.
     It became clear on cross-examination by Marc Elias (this was close to a "surprise witness" since chain of custody is a pretty low-level, kind of assumed sort of internal law firm thing) that Team Coleman had not done this. Elias established the Trimble Troops had instead passed around their original, made notes, marked it with numbers, dates, etc.
     Then when they are wanting them in court, they had staff go back and try and erase/white-out those marks which they THOUGHT their people had added to the photo copy from the county. Elias was in excellent spontaneous form (usually you get to prep your cross-exam; here Coleman gave the Franken side 3 hours notice they would be calling Fuzer as a witness), which means things went rotten for Coleman's case. Given any judge's care for procedure, let alone the rep Reilly has for prep & detail (Hayden too from yesterday's diary accounts; and don't tell me Marben will let something like this slide), this HAS to look really bad in the eyes of the court.
     Indeed by the end of the day the Norm side was reduced to saying the Franken side had clean copies, why don't they lend us theirs? Really!
     More drama today! you can bet your bailout money on it. If the Coleman side can't get at least some of those absentee ballots into the case they are DOOMED so they will be urgent in the coming days.

Dark Scenario Speculation: The Coleman side's main hope of getting enough "new" ballots posted on Norm's side of the ledger is to somehow mine the Rejected Absentee ballots. Their motion to get these in directly: DENIED.
Their motion to expand a 64 vote side case before the court into an 11000 vote 'class action suit'? Unlikely, and Team Franken yesterday filed papers stating their objections to such an action.
The Coleman effort to get 5000, 7000 or 11000 lawfully rejected absentee ballots into court via this proceeding using a sample set of "errors" to pry lose the rest of them? Stalled by their own incompetence.
       Or is it incompetence? Most likely I think so. (In my life I have painfully learned just how fumble fingered and/or dense grown-ups can be.) But..... what if they run these messed up absentee ballots by the court? Bring in others in a haphazard, sloppy way? Get testimony from election judges that seem to show flat contradictions in the way ballots were ruled in and out?
         Then they come pleading to the ECC "this is such a mess of conflicting approaches the only fair/just/honorable thing to do, (and we sincerely regret our own part any appearance in adding slightly to the situation) is for this esteemed Court to order the originals sent in so we can examine all of them in the light of your august wisdom?"
     Frankly I don't think they are nefarious enough to think up this on their own. Mostly I think its slipshod preparation and law firm numb-skullery. But if the last 8 years have taught me anything its to be slightly cynical enough to look for the outlandish conspiracy... it just might be afoot.

News of the ODD

Too good a gem to lose! Franken leads by +225, almost an exact reversal from Coleman's +215 as the recount began. Now Coleman needs +225 to draw even, right?

225 is the square root of 50,625. But the square root of 50,625 is also negative 225, therefore Coleman wins. Case closed.

Tuesday Morning Minnesota Media
    How messed up was the Coleman side with their copied ballots? So messed up the Star Trib headline writer (who has been no friend of fairness) has to write the banner on the top of B1 as "Recount trial, day 1: Copies of ballots don't cut it."
    Doyle & Brunswick  get off a great lead line: "The trial got off to a slow start......and then bogged down."
    Judge Reilly asked one of the witnesses how a judge could look at one of the Coleman copies and know whose marks were whose. Witness said "difficult to know that completely." (well YEAH!!) Marben too was skeptical.
     Fill me in legal eagles: when a judge asks a question from the bench its is not all that common; lawyers are supposed to ask right? And its often not a good sign for YOUR witness right? And when 2 judges ask questions that the other side has been asking isn't that a.......problem for your case?
     After day 1 presser Coleman side blamed Franken side for obstructing trial because they objected to Coleman's copies....(da noive!)........ in a judge & attorney confab Hayden told Coleman's side you'd better have plan B
witnesses ready to roll TODAY.... some more hints the Dark Scenario may be what the Coleman side is after
      Team Franken was pointing out Norm's "universe of ballots" had jumped from 654 to 5000 to 11000, that Friedberg had called local election officials BOTH "over-judicious" (in 5000 cases)       and incompetent (in 11000 cases) because he wants all 11000 ballots sent to the ECC as a preliminary to overturning the election
     Kevin Hamilton:

"The standard is settled, constitutional, and simple," Hamilton said. "Overturning the result of the recount would be a breathtaking exercise in judicial power that should be undertaken in the rarest of cases and only under the most powerful of evidence."

Amen to that brother Hamilton!

BEST Write Up of Day One: Jay Weiner at Minn Post captures all the drama in a superb story here. (Wish I did half as good a job as this real journalist did):

On those supposed, alleged duplicated ballots that may have possibly, allegedly counted along with their originals in the recount that the Coleman side thinks might have happened a little/a lot/ at least enough times to give Norm a lead? One place the Coleman team named (they finally had to be specific) was Eagan a 2nd ring suburb on the south side by the airport. The Pioneer Press:

     On Monday, Eagan officials said they had double-checked their election results and there was no such trouble in their city.
     "We're confident, based on the information available to us, that no votes were counted twice. They were counted only once," Eagan City Clerk Maria Petersen said in a release.


Judge Marben presided yesterday from the center chair. Judge Hayden did so during some of the pre-trial motions. Judge Reilly today? Will they rotate all the way through? Sounds fair to me (very Minnesotan).

OK hope this will hold you until 9:00am CT when the action begins. Thats the latest for the moment from yust southeast of Lake Wobegon.


Originally posted to WineRev on Tue Jan 27, 2009 at 04:46 AM PST.

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