Slam and Bang yesterday in Election Contest Court! A Coleman witness testifying for a couple hours, cross-exam and then, (BODY-CHECK into the boards) Team Franken, "Move to strike the entire testimony of this witness." GRANTED! WOW!
Another +30 ballots for Franken hove into view!
Still Franken +249.
Jay Weiner's write up for the Minn Post is the best summary of the action if you need to kiss and tell:http://www.minnpost.com/...
The latest ramble from your increasingly insane WineRev yust past the Orange fold......
1) The New Swamp Fox: Charles Nauen!
After the British captured Charleston, SC in 1780 they set up a string of forts and strongpoints to hold what they'd won and continue re-conquering America from south to north. Late in the year Gen. Washington was able to appoint his own man to lead the resistance: Nathaniel Greene. Greene confused British General Cornwallis by splitting his already outnumbered force. The western wing under Daniel Morgan delivered a smashing American victory at Cowpens. Cornwallis took off in pursuit of Greene & Morgan across North Carolina all the way to the Virginia line. (A forgotten but epic march by both armies.)
Meanwhile natural-born guerilla fighters Andrew Pickens, Thomas Sumter (they eventually named a certain fort in this man's honor, which figured in another war) and Francis Marion (the "Swamp Fox") began unraveling the British defense system. Marion & "Lighthorse" Harry Lee (later father of another military man, Robert Edward) took Fort Motte by setting setting it afire with flaming arrows.
They captured Fort Watson by taking up Col. Hezekiah Mahan on a genuine backwoods idea. While Marion & Lee kept up a siege Mahan and a crew of marvelous axemen spent five days logging in the nearby woods cutting and notching timbers. On a moonless night they tapped together their creation.
At dawn the British awoke to find a 50 foot tower looming over the fort. A squad of riflemen (not those smoothbore muskets but those "Pennsylvania" long rifles that could kill with precision at over 100 yds.) was firing DOWN on the fort (can you say fish in a barrel?). As the rest of the Americans battered down the opposite gate without opposition surrender was the only option.
While Team Coleman/Cornwallis (The Berg Boys, Trimble & Knaak playing his Lordship and Gen. O'Hara) are grappling with the main force of Team Franken/ Greene (Lillehaug, Elias, Hamilton & Pentelovitch are Greene, Morgan, Otho Williams and Wm. Washington (a distant cousin) -- to call the roll of the neglected) attorney and Swamp Fox Charles Nauen brought in a case of 64 (later 61) absentee voters and their ballots to the Franken side. The ECC has already ordered 24 of these onto the "Ready to Open" pile growing at the Sec. of State's office, and another 18 are looking possible.
But while those 42 ballots are still burning at Fort Motte, Swamp Fox Nauen has struck again! He is now attorney for another 30 group of voters (all on the Franken Universe list) and their absentee ballots who want their votes counted. Petition was made to the MN Supreme Court. If the Supremes follow their prior pattern (and no reason they wouldn't) they will refer these "Nauen30" to the ECC for disposition. So while Cornwallis, Ginsberg & Trimble are falling back on Guilford Courthouse, deep in their rear another 30 long rifles are up on a Mahan Tower firing down on Fort Watson and the ever-shrinking stockade of the Coleman case.
Like Marion, Nauen's efforts can't win the case. But also like Marion, Nauen's wasp borings can make it a LOT harder for the British/Colemaniks to win. (No offense to our cross-pond readers; hope we can let that war rest in peace.)
2) Election Contest Court (ECC) --Episode XXVIII Evidence? And Strike that Witness!
A) In Chambers
The thinking was casual among the bloggers as Court opened:
Comment From Gordon]
I think this court has made it (plain) that there will be no "uncounting" of ballots. That was Coleman's "Hail Mary" pass, and it fell flat. The panel stressed the binding character of a stipulation (regarding the "933" and the Friday the 13th motion for a Restraining Order--WR), as well as the importance of preserving the secrecy of ballots. Moreover, in their ruling, as in past rulings, they freely adopted the language of Elias' and the other Franken attorneys arguments. I can't help but feel that they find Franken's side more logical, crisp, and convincing.
Court opened with a bang by...... recessing....what? Yep. Not long after things started there was a sidebar and then lawyers and judges headed into chambers. People scurried around with excitement. Word came soon after from McIntee at the UpTake that what all parties were looking at was possible "new evidence" using information from Gary Poser's testimony from yesterday (Poser is state elections director in the Sec. of State's office): 19 voters may have voted twice.
You can vote absentee in MN, but if your plans change you can show up and vote in person. Your in-person vote CANCELS your absentee vote. Election officials are supposed to pull your absentee and reject it ("pile 4" for those of you keeping score in basements.)
Coleman contended that in 19 cases they believe they have evidence local officials did NOT do this and so the in-person vote AND the absentee vote of these voters was each counted, either on election night or in the Recount.
[Comment From Chris II]
MN allows you to beat your absentee ballot to the polls. We have procedures in place to prevent you from actually voting twice.
9:35
Noah Kunin: Of course it would be illegal. The question is did the counties miss some that fall under that category.
Well if true that IS pretty serious and it was enough to get everybody into chambers.
(Of course there was a more likely possibility. I think the judges needed to recess to have a round of Linie aquavit straight up with their morning pop-tarts. I mean the idea that the Coleman lawyers would actually recognize evidence, let alone present it in court, has such an infinitesimally small chance of occurring in any known or imaginable universe that you really need a stiff drink to even consider the cosmological possibility! Its enough to make you question you entire weltaunschaug, re-order your categorical imperatives and wonder if the square root of 2 is rational after all. Its pretty big.)
About 11:00 everyone came back to court and.... things went on like none of that ever happened. No announcement, no court order. Big false alarm? We may never know until the tell all book comes out.
B) At the Curling Rink
After the lunch break little did witness Pamela Howell (on the stand for Coleman) know that room 300 had been converted into a curling rink.
(Republican) Howell has been an election judge since 1977 in Minneapolis. Friedberg swept the ice ahead of her testimony as Coleman's side of sweepers worked on the "duplicate ballot/ double counted" part of their case. (They contend in about 100-150 cases, mostly in Minneapolis and other Franken-heavy areas BOTH the original absentee ballot AND the duplicate of it that was made on a blank ballot so it could be run through the counting machine were counted in the Recount and that only 1 should have been, the original.)
Howell's testimony was smooth and nuanced toward the button, if a bit partisan. She was almost gleeful when it looked like a duplicate counting error (for Franken) was happening (so she could wreck things. She wanted to be a take-out stone.) It was pretty clear she could be in the "God only loves Republicans, who are the only real Americans" camp. But when Lillehaug got up for cross-examination she was short with him, almost curt.
Now this is usually no big deal. Any trial lawyer will prep their witnesses: what to say, even how to say it, where to look, when/if to smile, etc. You go over their testimony and assure them that ONLY stuff brought up by the calling side can be asked about by the other side. ("We are only going to talk about the green Toyota in the garage. We will NOT ask you about the little red wagon in there and don't mention it either. If we don't and you don't they can't ask about why the little red wagon's left rear wheel is missing and such a wheel was found next to the victim...")
But Howell's contrast was so sharp people wondered if this was the same person.
[Comment From Andrea]
I swear I'm trying to be objective but I've never heard such a pile of incompetent, untruthful garbage in my life - except Gonzales. Amazing how selective memories can be. Reminds me big time why I'm a democrat and proud of it.
Then about 2:18 or so Lillehaug asked her about her prep for today's testimony. (Cross-examining lawyers ALWAYS do this. If a witness gets nervous and says, "Ben Ginsberg never talked with me" and it turns out he has done prep, then the cross-examiner can clobber the witness with, "Well you were untruthful earlier about your own sides' lawyer preparing you, so how do we know you are being truthful now?" A prime example of "honesty the best policy.")
Howell stated she had been contacted in January by the Coleman team and had been making notes to herself on her computer about what she could recollect. (Not a bad move at all.) Did she provide this file to Team Coleman (Tony Trimble it turns out) as part of her preparation for testifying? Yes. (And skip Dave delivers an 18kg ailsite stone down the ice!)
Lillehaug to court: we never got our copy of this. (Both sides share with the other side info and documents before trial: "Discovery." You have to lay it all out.)
BIG brouhaha over this. "Suppressing" information in discovery is "sanctionable" (YAY! DL brought back that idea against the Coleman lawyers.) This is a HUGE taboo, right up there with trying to UN-stipulate a stipulation WITH PREJUDICE. (I mean NO one would try that....).
Friedberg hustled forward with a sheet and said, "Here's a copy." (For both the court-- who apparently didn't have one either-- and Team Franken.) Lillehaug asked for a recess "so I can study this information I've just been made aware of."
Everybody took about 10. When they got back Lillehaug opened with "Since this witness's testimony is based on these notes and notes were not shared as part of discovery, I move to strike this witness's testimony." WHEW!
Friedberg argued against (big surprise) and Court said they would rule "shortly". (How shortly? Surely the judges aren't brooming this stone for action today?)
[Comment From Guest]
Friedberg can ask when they received it but it doesn't matter. The judge (Hayden) is not amused, responds that the issue isn't only prejudice, also a violation of rules.
Winning the hearts & minds of UpTake bloggers.......NOT:
[Comment From nikip5555]
I have to say, until today I have been advocating that Friedberg is actually competent and all his amateurish behavior is part of the evil plot to delay seating Franken. But after today - that was really egregious and I'm seriously reconsidering my position.
But then a second stone thrown down in the ice!
Lillehaug resumes cross-exam and in a couple minutes it comes out that during the recess Friedberg had taken said notes OVER TO THE WITNESS so she could "refresh her recollection." She hadn't brought them with her on her own (which I think would be OK.) But opposing counsel take advantage of a recess to help a witness like this???
Lillehaug, "I RENEW my motion to strike on grounds of...." (well he didn't QUITE use the words "tampering with a witness" but damn near.)....."and for other penalties as well.." (which he let hang there; penalties against the Coleman case? Against their legal beagles?)
Succinctly put here:
[Comment From LandslideAl]
nip -- Attorneys prep witnesses all the time. That is their job if they are at all competent. Not turning over documents that are requested, and then using the same to refresh a witness at break during cross, those are other matters. As far as her testimony is concerned it wasn't very persuasive. A poor witness, but not everyone is used to testifying in court, let alone in a proceeding such as this.
Boiling down about 2 hours into a paragraph:
[Comment From evad dnats daeh]
Under examination by Friedberg Howell was composed and answered quickly. Upon cross she became nervous and unresponsive. Sounded like Gonzales with the old "I don't recall routine."
Lillehaug asked if she had notes or she had been coached by the Coleman Camp. She stated NO to both. As he went on she admitted to notifying the Coleman Camp, building a file of thoughts called "Testimony" and talking several times to the Coleman camp as late as January. She had sent her thoughts to the Coleman Camp. The Coleman Camp forgot to give a copy to the Franken Camp. They also didn't mention that there were several phone conversations between Howell and Coleman Camp. I guess that was a BIG OOPS
Tony Trimble damn near threw his broom and tried his best to explain and squirm out of this mess, calling the notes a "work project" so not subject to discovery.
The mighty Uptake bloggers were NOT impressed!
[Comment From John TX]
Still has not explained how it is work product if the witness used it to refresh recollection. Slight oversight!
3:36
[Comment From nikip5555]
say as many words as possible in hopes that no one will notice that three of them were "we screwed up"
[Comment From Politjunky]
"Let me make this perfectly clear, I did NOT have email relations with that woman..."
NEITHER WAS THE COURT IMPRESSED!
Judge Hayden: For violation of the rules the testimony of this witness is stricken from the record. Ms. Howell you are excused.
Get that? NO "take this under advisement." NO "objection overruled...for now" NOPE. A ruling, within the hour of the motion being made, "strike this testimony; excuse the witness" (we will hear no more from her; and to Trimble/Friedberg: As it is written in Psalm 50, verse 9: "I will accept no bull from your house..")
Well now! Team Skip Lillehaug has knocked a witness out of the Coleman house with a beautiful in-curl takeout draw! Coleman wants to build this final part of their case about the "duplicate/double count" ballots and I think they were using Howell as momentum or maybe a guard stone to set up the following witnesses and now they have to start over. The fact the Court ruled (still deliberately--- with 3 judges in the house they wanted to check signals with each other instead of Judge Hayden simply snapping out something on the spot) says once and for all they WILL enforce the law and the rules of evidence---- which sure sounds like bad news for Coleman to me. Soo.... we'll see what comes next!
Best drama of the trial. Who knew curling could be so riveting?
Thursday Morning Minnesota Media
My front door edition of the Star Trib isn't here yet and I've got to get this posted for all of you but let me tell you this. With the rack of horse dentures the former Senator sports you have to think it would affect other body parts. Well if you click on the link you'll see Norm's lower lip has obviously grown in response to his dental implants. That picture is dictionary definition of "pout".
http://www.startribune.com/...
Duchschere's write up is pretty muted but with the promise of more drama (my emphasis):
But Ginsberg declined to say what the court should do about the St. Louis County ballots, beyond reiterating that the judges should revise their Feb. 13 order. Coleman will present a motion Friday that seeks consistent standards in counting ballots, he said.
At least one Star Trib blogger thought the story wasn't nearly strong enough:
How is it that the story as written makes light of evidence tampering, as if it was a minor event and the article says nothing about ... read more coaching witnesses? Also, even though the court order was to throw out the tampered evidence , the Trib made sure to repeat and reinforce the lie that the system is "fatally flawed" once again feeding the right wing AM radio crowd with fuel for more deceptive hate speech.
OK hope this will hold you. Another "end" to be played today on the UpTake starting at 9:00am. Bring your stones & brooms to the curling house and see if the mate or skip can knock another Coleman witness out of the house with a little in-swing spin. Mind the hog line. Thats the latest from yust southeast of Lake Wobegon.
Shalom.