Another bang-bang day in the Elections Contest Court (ECC):
>The Coleman side got caught again abusing Rules of Evidence.
>And they proposed looking at every single absentee ballot in the election all over again. (Yeesh!)
>There is a definite screw loose with the Duluth City Clerk, a potential Franken witness (see! we can do nutso too if we want to!) .....but he dresses well!
>It is increasingly likely Coleman will call "Plaintiff rests" maybe as early as Monday, but this week seems quite sure for those welcome words.
Franken leads +249
Have a long, slow peek past the Orange fold if you like......
1) Personal Breather and Reflection
Version 88? You must be mad! Yes I am, in both senses. If someone would have told me I'd still be writing this series after WineRev-ER got his driver's license (Thursday: loose on the roads! Look out America!) I never would have signed on. Grrr... a grind and time hog (but since i have no other life....)
And this is driving me mad ("leave the driving to us"..."Hey Dad, can I drive to Target?"....farfignuegen "joy of driving"...."'49 Roadmaster, Straight-Eight. Fireball Eight.
Only 8,095 production models. Dad lets me drive on the driveway, but not on Monday"......) Oh yeah, that kind of mad too....
But then maybe that's why I wasn't told and its better just to sit down and do the next piece, which isn't so bad. And then the one after that. Its just 1 at a time that builds up to something...... sort of like living life. We are not told how long or how many days we have, and those who have been told are either tortured or transformed by the knowledge. Ignorance isn't exactly bliss but some things are better known when they are unknown to start with and pieced together on the way.
And along the way are all sorts of incidents, accidents and people you encounter: a skinny kid in Orange with a small user number and a big website; people who will step up and tell you about Neli pots, prop you up in a chapter 13, cheer you on with Beethoven in a grieving moment, critique and improve your letter writing, supplement your diary with number crunching or legal citations, laugh/groan at your jokes and sometimes completely miss the really GOOD puns.
(Nobody commented yesterday on what I thought was my best one:
(Knaak and Trimble sharing the bad news on the rising of the anti-Vichy(hac vice) populace
"It looks awful. I was down at our seafood place....."
"Lili’s?"
"Yeah. Lili’s. Well a couple weeks ago ‘Lili’s Reef’ installed a shortwave and we heard..."
OK, its not Mel Brooks, "laurel... and hearty handshake", Lili Von Schtupp or Madeline Kahn, but still.... (This entry says "Leni" but I've always heard it as Lili:) http://www.answers.com/...
So its been a long, twisting trip and its not done yet. Its also been an education, a comfort, and a healing and growing for me in ways I don't even understand yet but that you have contributed to.
(WineRev rises, bows, doffs (DOFFS!) hat to DailyKos community)
Thank you one and all.
2) Election Contest Court(ECC)-- Episode XXX: Strike! UN-Strike! Re-Strike! and ....Say What?!
We got about 6 inches of new snow Thursday night (depending where you were; I've heard 2 to 9 around the metro) and all that shoveling, blowing and plowing affects people, even lawyers.
(It also affects Ole & his wife Lena. A big snowstorm came down and the mayor announced for plowing purposes parking would be restricted to the odd-numbered side of every street in New Narvik. Ole put on his coat and hat & moved the car.
About a week later came another storm and the mayor declared another snow emergency, this time restricting parking to the even-numbered side of streets. Ole went out and shuffled the car again.
A third storm came through (being March and state tournament time, this is required) and Ole and Lena were having a TV dinner as the mayor announced once more parking would only be on the odd-numbered side of the street. Ole rose and started putting on his hat, coat and gloves when Lena said, "Oh c'mon Ole, you've done enough. This time yust leave the car in the garage.") :-D
Pamela Howell was back on the witness stand Friday morning. She is the Minneapolis election judge who Team Coleman called to testify about the alleged "duplicate ballots/double counted vote" piece of their case. Ms. Howell was called because she said she had seen this happen, because she's been an election worker/judge since 1977 (so good experience and credibility) and she is a committeed Republican (ie REALLY friendly witness.)
She testified a good while Wednesday on direct examination and then after lunch with David Lillehaug on cross-examination. Things turned into a major light sabre duel when it came out
a) Ms. Howell had made notes to herself on her computer about her testimony (perfectly fine and a good idea for anybody),
b) she had shared these notes (a computer file and/or hard copy) and had a phone call or 2 with Tony Trimble of the Coleman legal team (still OK; she's their witness and they want to prep her testimony) but
c) the Coleman team had NOT shared her notes with the Franken team or with the ECC (MAJOR NO-NO; Rules of evidence on pre-trial discovery REQUIRE each side to share this information with each other; not the attorney's working notes, flowcharts and other in-house stuff you use to get ready, but the document itself MUST be shared.)
This produced a major hole in the ice, like heaving a refrigerator off the IDS tower onto the frozen Mississippi, so everybody took a 10 minute break to look everything over. When court (and cross-exam) resumed it came out almost immediately Joe Friedberg of the Coleman legal team had shown Ms. Howell the notes again while everyone was at recess on the swings and teeter-totters. (If they would have been her own notes which she brought with her herself I believe (IANAL) this would be acceptable.) But that it came from counsel made it a MAJOR NO-NO.
The ECC (who have shown repeatedly they are REALLY tight on stuff like...the LAW, courtroom procedures, rules of evidence, etc.) granted Franken's Motion to Strike the witness's testimony.
By all accounts and comments from lawyers on these boards and the UpTake a Motion to Strike like this is pretty rare because the offense has to be pretty severe, so everybody agreed this was a BIG DEAL. Even the court was a bit nervous at how big a deal it was, since this is just the sort of thing that gives one side or another grounds for appeal (even reversal) in a higher court. ("See? The court was prejudiced against me and my client because Motion to Strike was beyond the bounds....") Judges HATE to get their rulings reversed.
Sooo... they were in a somewhat receptive frame of mind on Thursday when Tony Trimble (in particular) came crawling to them (because a big chunk of their case rests on this story about double counted ballots) to beg forgiveness. He claimed he didn't share the Howell notes not from bad faith but from simple oversight. Apparently his apology and willing to eat a plate of lutefisk in penance (It IS Lent after all, the season of repentence, of contemplation of one's sins and unworthiness before God) moved the court to vacate their order granting Motion to Strike.
SOoooooo now Friday morning rolls in. Ms. Howell is again on the stand because Lillehaug had not finished (indeed hardly begun his cross-examination when he had been so rudely interrupted by a violation of the Rules of Evidence.) He still gets to question her until he is satisfied with her answers and/or runs out of questions.
Not far into it, the witness, Ms. Howell, (gad; sounds like, "the virgin, Connie Swale"), said under oath she had had SEVERAL conversations AND e-mails with Tony Trimble about her testimony, notes and recollections. Lillehaug climbed all over this with the court pointing out this was NO MERE OOPSIE from the Coleman legal team.
[Comment From LandslideAl]
Meehs --- This is pretty bad conduct. Trimble represented that the failure to provide the document was inadvertent, the emails suggest otherwise. Whether Trimble or his paralegal or junior assoc messed up, Trimble's representation in court to the judges was at worst a lie, and at best given without Trimble knowing whether the representation was true or not. This will lead to a sanction against Trimble.
Coleman attorney Tony Trimble ends up looking like the guy who drives the tractor at the driving range to sweep up the golf balls. Usually these Lawn-Boys have a steel mesh cage so the driver doesn't get hurt while every one keeps improving the slice off their 6 irons. But now the place was packed on Sunday afternoon for Kiwanis "50 Cents a Big Bucket O' Balls to go with a Tall Beer" fundraiser, every pad is firing, and there was no mesh cage out past the 125 sign for the ball boy Tony.
3) Rats off a sinking ship? Rattlesnakes starting to eat each other?
Again, Coleman lawyers? INADVERTENTLY? Multiple e-mails and phone calls (which Lillehaug was given Friday morning). Lillehaug alternated between focused furious and genuine sadness toward the Coleman Team but was relentless in nailing them for this "strategic decision not to disclose" the info in discovery.
It was so bad (How bad?) Joe Friedberg got up and basically said, "Your honors, all this stuff happened in the case BEFORE I WAS BROUGHT IN.... so its not my fault." Yep! Nothing like Team togetherness! Yowser.
What might the court do? After all they were taken in by Trimble's sackcloth and ashes mea culpa so that they UN-struck the Motion to Strike. The bloggers offered:
> Reinstate Motion to Strike"---- not bad.
> Entertain "Motion to Strike" not ONLY the testimony (as before) but also strike the "CLAIM' in the testimony: that there was duplicate ballots/double counting; you know, saw off that entire leg of Coleman's case. (That would bring the case down to a pig-on-stilts-on-ice with only 3 stilts......)... would leave an opening on appeal ("not all the evidence was heard...")
>Sanction Tony Trimble, maybe after the trial end... fitting too.
>Let in the claim and other testimony from other witnesses so the ECC can then rule against ALL of them while showing their even-handedness?....they might find that attractive. We'll see.
The ECC took Howell off the stand and said they would rule on her testimony, her claim, Tony the Trimble, the Coleman team's abuse of discovery... Monday. What a weekend of sweating....for everybody except Al Franken and friends!
4) Coleman's universe nears Supernova stage
Out in the far reaches of the galaxy there are times when a star is shrinking in on itself. With the right combination of spin, mass and rate of collapse there are times when the whole thing undergoes a cataclysmic collapse which crams the atoms in so close together and under such heat and pressure the entire process reverses and explodes: a supernova, where all the matter bursts out in all directions lighting the sky (as in sometimes visible on earth to the naked eye in daylight visible!). But then the atoms of like the Crab Nebula (a former supernova) dissipate into a cold dust cloud.
The Coleman universe has shrunk from 12000 rejected absentee ballots to 11,000 to 4800 to 3500 to maybe 2000. Friday in court attorney Langdon proposed a supernova finish to the Minnesota Senate race.
(Watch this 3 1/2 forward in pike off the 10 meter tower!) Given the court's Friday the 13 ruling (they keep coming back to that so they REALLY didn't like it) of ruling in and ruling out certain categories of absentee ballots;
and given such a set of categories amounts to a de facto set of statewide standards for absentee ballots
and given those standards were only invented by the Court 2/13
......(ready?) the ONLY way for the court to be fair and avoid a claim of "unequal protection" (that some scumbag candidate's lawyers might file for) would be for the court to re-examine all 286,000 absentee ballots by those standards!
First to recover his voice was Judge Kurt Marben: "How can we undo something once these votes have been cast and counted?"
Langdon was ready with a Ginzberg/Goldberg answer: 1) reduce the absentee ballot count precinct-by-precinct in mathematical proportion to how the precinct voted overall. If I get this the side with more absentee ballots would take a greater reduction. Hmmm..... now which side is leading by +249? Which side has done better among absentee ballots?
Second to recover her voice, Judge Reilly threw the first ballista at Langdon by noting MN law doesn't really allow for such a thing. (Totalitarians of all stripes HATE the law for just such reasons.)
Langdon was ready with #2): If #1 is too hard the judges could change or lift their Feb. 13th order (they REALLY don't like what that did to their case!)
Third to recover his voice was Franken attorney Marc Elias, albeit haltingly:
"I am frankly almost without words, which is rare, very rare, I'm almost without words to know quite what to do in response to this motion," Elias said.
"I couldn't even begin to tell you which ballots out of the 280,000 ballots that were cast by absentee they believe were illegally cast," he told the judges. "I don't think they know. I think they what they want is we'll sort of take all 280,000, put them on a big forklift, we'll take them, we'll plop them here in the courtroom and then the court will do something."
..........
As for asking the court to "fix" the Feb. 13th ruling on its own, Elias said that's because the Coleman side doesn't have a remedy:
"Instead they wish to simply cast doubt on this process as it comes to the conclusion of their case," Elias said, glaring at the Coleman table as he sat down at his.
Minn Post, Jay Weiner
The ECC will rule on this, maybe by Monday. It may take them that long to find a forklift big enough........ to pick up the carcass of the Coleman case, load it on a triple set of Saturn V rockets and blast the whole schmeer directly into the Sun for incineration.......
5) Duluth City Clerk behaving badly
Joe Cox is City Clerk for Duluth and hence the local elections director. On Monday Team Franken (who was given word Team Coleman might rest their case as early as Wednesday the 25th)
subpoenaed Cox to testify for their case and be ready to drive down on Thursday. Witnesses get a $20 daily rate and mileage both ways from New Narvik or wherever.
Cox moved to quash the subpoena (what?) on grounds it didn't pay enough! No really. He wants a minimum of $1100 UP FRONT, based on $60/hour of his time...... on a 24- hour clock while he is away from Duluth. (He wants to get paid $60/hour while sleeping in his motel room if necessary.) And he's not crazy about a motel room either. He wanted guarantees(!) he could drive down, testify and drive back all on the same day or else he won't come at all.
This is all before the ECC and another thing for them to rule on this weekend.
What is with Mr. Cox? I doubt he's some crazed and drooling knuckle-dragging Rethug because Duluth is quite a "blue" city and I imagine the various officials are likely Democrats. So does he not want his face on the UpTake? Doesn't he like St. Paul motels (result of an unfortunate childhood incident with a "Magic Fingers" massage unit and a tiny bar of soap?)
Does he think St. Paul-ites will make fun of his out-of-town clothes? (Duluth Power Dressing for Men: black fisherman's cap over dark blue blazer, orange shirt and eye-stinging sunburst yellow tie all riding magnificently above lime-green slacks. Accessorize with multi-holed white belt and gleaming white patent-leather shoes when snow not present. Otherwise match tie with lemon yellow steel-toes from Red Wing (MN!) boots (about $85 in finer sporting goods stores)
Kossack Rincewind is in Duluth I think and maybe minerva1157 and some others. Any word about Cox? This is odd.......
OK I hope that will hold you for the weekend although if something breaks I'll put up a post. Thats the latest of the late from yust southeast of Lake Wobegon.
Shalom.