Try the new prescription contacts: Election Contest Court (ECC) looked like.... a court! Thats because Team Franken is putting all those reruns from Perry Mason to Boston Legal that they watched for 5 solid weeks to good use.
> 24 witnesses... in one day, but a popcorn chance missed.
> Fallout from sanctions laid on the Coleman attorneys... what other lawyers think.
> Written motions on ice
> Low forms of life under ice
> Going meta about this series
Franken leads +246.
Jay Weiner is the go-to guy for a "you are there" sense of yesterday's proceedings:http://www.minnpost.com/...
If you just need the bullet points and a wrap, you just had 'em along with Weiner's piece.
UPDATE: (h/t Insultcomicdog) Ohio State's Law School has a legal take on the contest here:
http://moritzlaw.osu.edu/...
A) Election Contest Court (ECC): Episode XXXII-- Rehabilitating Lawyerdom
For 5 excruciating weeks legal groupies have watched and wondered how badly can a court case be handled? Have law schools REALLY deteriorated that much? Is "Boston Legal" actually fantasy TV if this is legal reality? Cripes, kids playing pond hockey will settle a "puck on the goal line under Emily the goalie" dispute easier than this, and get back to having fun on the rink behind the St. Louis Park Fire Station #2.
Well folks, on January 20, 2009 at noon ET, the restoration of American democracy began. Yesterday at just after 9:00am CT the rehabilitation of lawyers in America began in earnest. Team Franken opened its case.
They called 17 voter/witnesses in the morning, in under 3 hours almost matching the Coleman 20 witnesses called in 5 weeks. Clicked along at about 8 minutes apiece. Witnesses were sharp, respectful, coherent, informed, occasionally nervous. Lunch break and 6 more voters. Gary Poser from the Sec. of State's office was back testifying and the Franken Team played a 40 minute DVD for the court (no popcorn observed or heard) used in MN Election Judge Training.
THIS is case management! Trial Law! And already they have met the WineRev mark of true professionalism and talent: they made it look easy. (It really isn't. I'm sure as in most great displays the effort is terrific, but if you're bad, the effort shows (see last 5 weeks in ECC.) If you're good, well then its Peggy Fleming throwing an "effortless" double-axel and gliding away like a swan on water.)
I only read about it on the UpTake and I am almost as limp with relief and verging on tears as I was on Inauguration Day. FINALLY! Competence. Order. Logic. Clarity. Yea even under it all, HOPE!
It sounded familiar, voters who voted absentee and whose ballot was rejected testifying why they believe/want their ballot counted. Hell, it was SO familiar on cross-examination (now from the Coleman side; after yesterday's "Coleman rests", the teams switch ends to even out any sun or wind advantage) Joe Friedberg! agreed with a (Franken) witness in wanting her ballot opened and counted.
[Comment From RC]
Does anybody else find it funny that Freidberg is agreeing to count a ballot while at the same time his team member Langdon is asking the court to set aside the election.
But then current Rethuglicans claim, "a foolish consistency is the hobgoblin of small minds." (Actually for the current Reichwing, "a foolish foolery is the hallmark of large asses.")
But why these witnesses from Team Franken? At least 2 reasons.
1. To put more votes on the board for when the ECC rules on which rejected absentee ballots be finally opened and counted. The lead is +246, but getting some insurance is a good play. The court has said they will (and has) rule on individual ballots so here are 2 dozen today, telling "their story." (One was from a resident in assisted living whose ballot was rejected because his address had changed: he had moved from one floor to another in the same place. Team Franken can play some heart strings too!)
2. You know how "some attorneys" endlessly said, "Unfair. Unequal protection. No uniform standards. My client has been grievously injured by the unfairness of inconsistencies between Traverse County election officials and Koochiching County officials."? (You know, the Ginsberg Flambe` Gasconade du Jour in the outer hallway ("where they will wail and gnash their teeth.")?)
[Comment From jmacatty]
However, since all of these folks are likely Franken voters, it shows that the mistakes are evenly distributed and did not materially effect the outcome.
Yeah, there may have been unfairness and inconsistency but it was EQUALLY so (Team Franken's stance); both sides got nicked BUT there is no pattern here for or against one side or the other. Therefore "equal protection" is preserved under "equal injury". I'm not sure if that is a legal doctrine (I'll find out in the comments) but I think jmacatty has called it just right. It also gives the ECC a road to travel as they move to rule on the case.
B) More about Sanctions on Lawyers
1) Monday the ECC sanctioned the Coleman legal team $7500 for their trampling of the rules of evidence/discovery from Wednesday to Friday last over the testimony of Pamela Howell. Given the millions being spent (and collected) on this case $7500 does seem like, well, like "cigar money" as the Minn Post put it.
Sanctions are available to a court to punish lawyerly misconduct and can range from a stern public lecture (perhaps the most common) to fines (like what we have here, although pretty nominal usually) through dismissing a lawyer's case (which the ECC specifically noted in their order as a possible final resort if the Coleman team keeps pulling this crap; YOWSER!) all the way to causing a lawyer to lose their license.
But I put it in yesterday's diary to the legal types reading here, "What about sanctions? Pretty rare? How does this compare? How often does it make the "Lawyerly Times" news that a lawyer was sanctioned by a court? What is the practical effect?"
A couple Kossack replies in the comments I thought you might like so you get the insider view:
This is highly unusual. I have not personally seen (speet said subsequently "heard of"; WR) a fine like this in over 20 years of practice. I first note that the court has opted for a sanction that does not bar evidence. This is to preclude a Coleman appeal issue that could affect the ECC’s final determination on the election outcome.
As far as when it is to be paid, I imagine this will be a subject of chamber’s discussion. I have not seen the Order (does anyone have a link?) but its apparent absence from the normal record indicates that the court now sees this as a personal attorney sanction matter. Payment date would likely be open to argument and another plea for reconsideration.
Trimble's bigger potential problem is that this may portend an ethics complaint/investigation with a likely result to be a stern public admonishment (yes the equivalent of a wet noodle lashing) or suspension (that one would hurt).
by speet
A Couple of Matters (7+ / 0-)
On monetary sanctions. Seventy-five hundred dollars doesn't sound like a lot of money when you consider how much is being thrown around in the overall Contest. It's probably about ten hours of Ben Ginsberg's time at his regular billing rate.
But it isn't really the money. Hard to believe it, but it's the shame. Here in California (and I suspect Minnesota is similar) if a judge sanctions an attorney for more than a thousand dollars, the attorney has to report that sanction to the State Bar. It is considered bar discipline and it is entered into the attorney's permanent record.
Each time I use the California State Bar database to look up an attorney I do business with, the entry contains not just name, address, telephone number and e-mail address, if also tells you whether the attorney has ever been sanctioned. And every time you file a brief in a Court of Appeal, the court checks the same database.
In a business where a lot of money is at stake and the clients and general counsels of clients are always looking to cover their asses, having this blot on your record just makes it all the more likely that a potential client will look elsewhere for representation, not wanting to take the chance that this shameful sanction (which it is) will unnecessarily handicap your case by causing a judge to distrust your lawyer.
And this is the kind of thing that the kind of dweebs who become lawyers will sit up in bed in the middle of the night, sweat running off their foreheads, thinking, "why did I do that?"
......So in the bent universe lawyers inhabit, seventy-five hundred dollars in sanctions is a big deal.
by kaleidescope
So YES, even a $7500 sanction is a FREAKIN' BIG DEAL among lawyers, so if the lawyers are going "OUCH! That hurts from here" watching the 62-incher in the bar when the ECC plastered Team Coleman to the boards, well then the rest of us should cheer too.
WOW!
2) AND, for MORE SANCTIONED goodness, here's just a little more butter on your kolachke, from the Pioneer Press:
"The judges also said they would be willing to consider making Coleman pay for three days of Franken's attorneys fees at the end of the trial even if Coleman wins his case."
To this non-lawyer this says the Court is hacked off enough to not only fine the Coleman team (fine paid to the court) but that Al Franken's time and the time of his attorneys was ALSO wasted (and so compensation for "lost wages" to be paid to Team Franken!)
(If so, and if I were on the Franken legal team, I'd get a couple of CPA types to work right now so they can prove to the court that just by coincidence those 3 days in question just happen to be the MOST expensive legal fee days for the Franken effort. You know, sliding scale with a first-hill-up-the-roller-coaster-hump in the middle of it. WHO KNEW Marc, David, Kevin, William and the rest were ACTUALLY worth, oh, $55k those days......each day....... apiece? Gives new meaning to the phrase "flextime"!)
3) And finally, ("Alex, lets finish the category, "Legal Cases and Monetary Fines" for $1000") to follow on we've known for sometime that in an ECC case if the contestant (Coleman) loses they must pay the cost of the case. (a major disincentive for every losing candidate running for 3rd assistant dogcatcher in Lost Fjord, MN to file an ECC action willy nilly). Court costs are pretty clear to me. But its always been just slightly hazy in my mind if the contestant loses do they also pay the contes-TEEs costs (like legal fees.) In a nice catch in the footnote to the order imposing sanctions:
. The footnote in the sanctions Order explained everything to my delight. No attorneys fees yet (for the 3 days of stunts the ECC sanctioned Team Coleman for) because if Franken prevails, Coleman will have to pay his attorneys fees FOR THIS ENTIRE MESS!!! I guess that money will go into Senator Al's reelection fund, courtesy of Norm....just great!!! I love the idea of Republicans financing Al's re-election by way of their funding this stupid contest.
Whoa! Newly sworn-in Senator Al Franken with a multi-million dollar re-election warchest tucked in the bottom drawer of his senate office desk...... courtesy of the Republican National Committee?? THAT would make "Karma is a female dog" believers out of thousands of Americans.
Order on Contestee's Motion to Strike 3-2-09 (about 2 down for all the picky details): http://www.mncourts.gov/...
C) Written Clashes
As Canadian, Minnesota, Michigan and Massachusetts readers especially know, any good hockey coach looks for players by position: offense (center or wing) or defense (left or right side). But they don't want players that are "one-dimensional," that is, a dangerous shooter on the attack but no help in their own end, or alternatively, a bruiser who will clear out the prime scoring area ("the slot") in front of his own goalie, but is no help in taking the play to the other end of the rink. Really good "two-way" players are called on for extra duty, like when a team is short-handed due to a penalty. Then you have to "think defense" but have that talent and anticipation to make an unexpected quick steal and make a short handed rush and maybe catch THEIR goalie napping.
Today in court was the first day for Team Franken to really go on offense and present their case. 25 witnesses and a 40 minute DVD for the court's education was a great first (day) shift.
But Elias and Lillehaug swung back to do some checking in their own end as well. The Coleman Team sent the Court a letter at the hand of attorney James Langdon, 3 pages on how/why the court
a) could reduce the count absentee ballots that are "illegal" by mathematical proportions; he cited case examples from neighboring states.
b) could "set aside the election" from Nov. 4 because of the "irregularities" which the Coleman team showed were rampant, corrupting and riddled the integrity of the vote (not, Not and NOT!!!). (This part is the formal effort to get a "do-over" of the entire election.)
Well Langdon was working the puck and got the shot off. Elias stick checked it into the corner. He and Lillehaug wrote a 2 page letter in reply, stating what Langdon asked has little support in law. Specifically the "pro-rata" mathematical idea is not allowed by MN law.
Langdon's scrapped in the corner for the puck and took that "election do over" move he's been working on in practice. But Capt. Dave "Give 'em Ls" Lillehaug is tough to beat. How about this elegant deflection, reaching with a poke check and then a jazzy "behind the back" pass right onto the stick of Elias to start the break?
You know that Motion Team Franken argued in front of the MN Supreme Court a month ago today? The one where they asked for a Certificate of Election apart from the Sec. of State and the Governor? It hasn't been heard from since (or ruled on) but its still out there. Part of the argument was based on US Constitutional grounds, that only the US Senate has the right to determine the make up of its members (mascara? blush?) so lets let the 99/98 decide this, not the Court, Sec. of State or Gov.
Sportswriter Jay Weiner over at the Minn Post looks at Langdon's letter and the proposal for an electoral "do-over and called the action this way:
As for the setting aside of the election, Elias and Lillehaug write that the three-judge panel's jurisdiction "is limited to deciding which party received the highest number of legally cast votes, and therefore is entitled to receive the certificate of election ... Any other remedy lies within the jurisdiction of the United States Senate."
Great block by the "L" man, followed by a body check to shake the puck loose! An unexpected bank off the MN Supreme Court side wall and Elias gains center ice.....
Langdon's 3 pager shot, deflection and shot here (about 6 down):
http://www.mncourts.gov/...
Elias & Lillehaug's 2 page block, check and counter attack here:
http://www.minnpost.com/...
D) Diving Under the Ice
Just to make sure global warming isn't causing the lake scum clinging to zebra mussels to grow brain cells I put on the insulated wet suit and took a swim under the ice of Lake DerBunker.
Yep, they're still stupid. According to Ed Morrissey at "HotAir" the Star Trib got it wrong when they reported Team Coleman is seeking an election "do-over." (According to comments, another example of liberal media bias in the "Red Star" (and Sickle).) Morrissey writes he talked with Ben the Ginz himself to get the straight story (STOP laughing!) and Ben told him the Star Trib was wrong. (Engage Rethug Reverse Projection Mode, Denial Sequencer)
Ginsberg told me, "We’re not asking for a new election, or anything like that."
YES THEY ARE and I offer as evidence Langdon's letter to the Court, and Norm's own pensive demeanor and statements as reported in the Star Trib. "We are not" in modern Rethug discourse MEANS "WE ARE". "Anything like that" MEANS "Exactly what we are denying".
Cover your ears with anti-echo earphones if you want to visit the Vast Chamber of Reichwing Reverbs here:http://hotair.com/...
E) Off-Topic But On-topic
You know, posters here keep saying these MN-Sen diaries need to be preserved, collected, even published somehow when this is all over. Good grief, people have even made offers to buy said book/published thingy.
Well it strikes me a number of ugly issues rise up about this and might be worth a diary to thrash over. What if I put up sort of an "open forum" diary this Sunday afternoon (slow day for the trial) and ask anyone of you interested to drop by with thoughts and ideas.
To focus what about some questions for consideration:
1) I'm still writing these, but a published collection at this point is going to need a hell of an editing job. Could such an effort be pieced out across the Kos community?
(When the Bushies would do a Friday news dump of 380 pages of regulations and further outrages,folks around here would tackle it in pieces: "Here's the download. The first 42 pages are spoken for. Can someone tackle the third spreadsheet on page 81? Could a lawyer read the Nevada case law citations on page 219 and see how they intersect the physics formulas on page 244 that bondad's brother has just run through NASA's Jupiter database.." You know, and then by Saturday morning the whole Kossack nation was ready and armed with counterpoints.)
What conventions for names of newspapers or books? Chicago manual of style of something else? Line editing? Conceptual?
There is story here, but what about characters? Setting?
How to edit for readers interested in the story but who have never blogged or read a blog, so they don't GET how comment strings hang together in comments on comments... or jump back to an earlier comment?
Maybe someone would need to be co-ordinating editor or some such, I don't know.
2) Should such a collected work be in electronic form? DVD or CD disc or cached on a server somewhere as an e-book only? Paperback? Readable on Amazon's Kindle? Paperback and a CD together? All of the above? Some of the above? One of the above?
3) If done in physical media then is self-publishing viable in paper? CD burning in the mass? Specialty publisher? (If Joe Not-Joe the Not-Plumber can get a contract.....). How to set a price? Will a DVD/CD have pictures? Video clips as appeared in the original comments? Should a paper edition include pictures at least? Diagrams of the relationship between, say, the state canvassing board, the Secretary of State's office and the court system?
4) How does copyright apply to blog comments? Permissions needed to quote or covered under "fair use"? Permissions needed for still pix? Videos?
5) Upfront, set-up costs? Marketing beyond the Orange nation and downtown DC for political junkies? Indeed IS there a market beyond that, or do we think focused and smallish? Or is it TOO small?
6) Payments to editors for services rendered? To author? Rights to the final product? What if there are profits? Who covers losses? Sure I'm a pro at living at a financial loss but I don't want to keep others from enjoying....
7) What about auxiliary rights, for, say, translation into French? Distribution beyond North America? When Michael Moore comes calling, what about film rights? Who owns them? Who negotiates with Michael? And for what rights in creating, modifying or even vetoing a screenplay (or parts of same.)?
8) Netroots Nation meets in Pittsburgh in August, a built in audience and market for such a collection. Could something be READY by then? WineRev stands ready to attend Pittsburgh and sign autographs but would there be anything to sign?
I do not feel AT ALL competent in addressing all this..... I don't think I'm even competent to host/moderate a diary/blog discussion about this beyond posting a diary and saying, "what do you think?"
I freely admit while the idea is attractive from some angles I am WAY out of my league in knowing what to do or even where to turn. Sooooo.. if you have thoughts, ideas, refinements leading up to Sunday, think them over, post them, pass them along. What if I put this section up in the diaries this week so word gets around? Or is there a better way to go or a PERSON or group to go to?
I'm open. Let us all know....
Wednesday Morning Minnesota Media
Rachel Stassen-Berger of the Pioneer Press recaps the trial story in a balanced way, doing straight reporting on what both sides feel about an election "do over." She reports also that Norm himself feels the Court needs to "reflect" on how to handle this situation. Way to go, Norm! Ginsberg provides smoke and you carry the mirror and somehow imply the court is in a hopeless situation... NOT!http://www.twincities.com/...
Doyle & Duchschere try their hand at the same material, with a grave, pensive Norm reflecting on the courts need to reflect. But at least they get in some actual news in just 5 1/2 paragraphs along:
"We believe the evidence will show that the counties did a good job," Elias said.
Elias has said, and the court has concurred, that there has been no evidence of fraud or systemic problems in Minnesota's election system.
Thats it boys..... facts, evidence. Those are your new words and concepts for reporting reality. But RSB across the river already knew that so St. Paul wins another round.
If you want:http://www.startribune.com/...
Got the early shift the rest of the week, so I've got to get to the wineshop. Until the UpTake broadcast starts at 9:00amCT that the latest from yust southeast of Lake Wobegon.
Shalom.