Election Contest Court (ECC): Trial goes smoothly as grown-ups on BOTH SIDES act like they know what they're doing.
> Coleman attorney Friedberg improves, while Trimble & Knaak may have put Norm under the snow pile.
> Paperwork: Norm is late and sloppy with his and gets his case rested for him/ The Sec. of State's office has lists of fresh, countable ballots from across the state/ Team Franken will file today to knock out parts of Norm's case
> The MN GOP decides to get cute/stupid
> A chance for you to be in the book biz?
Franken leads +246
Above is the quickie. Below is the slowie, just past the Orange fold.....
Well today is the day! Thats right, and you get to celebrate with razzberries; not the eating kind, (my absolute favorite fruit) but the kind like Archie Bunker used to do: farty, sloppy ones sprayed loudly.
To whom, you may ask? Why Norm Coleman of course!
Today is 4 months TO THE DAY, the morning after the election, when the unbeknownst (!) to himself-ness (Nearly Former) Senator Coleman stood before TV lights and reporters and noted that while close, he was leading the count for the US Senate seat. He said with as much dignity as his horse dentures would allow that his opponent Al Franken should spare the people of Minnesota the expense and aggravation of a (state-mandated)recount, "let the healing begin" and "step back" like I would if the situation were reversed.
RRRRAAAAAZZZZZZZZZZZZZZZZZZZZ----BBBBEEEERRRRRRRYYYYY!
Norm, in your honor last night I cooked a can of Bush's baked beans in order to personally re-enact "Blazing Saddles" in the bad guys camp. And today's diary sections will feature 1-4 razzberries and scoops of beans for ratings!
1) Election Contest Court, Episode XXXIII, the Beat goes On.
The Franken case beat went on, with another 14 absentee voters called to the stand, including the UpTake's Noah Kunin. But court was overall, almost.....routine. Not quite boring but already a certain ho-hum quality is there because there is a certain common ground right now.
The Franken witnesses (not necessarily Franken voters, but a decent probability) are rejected absentee voters who want their votes counted.
Team Coleman (1 razzberry for thinking like this) is pretty quiet about this because
a) several of these voters testifying appeared on Coleman's list of possible witnesses,
b) this trickle of voters keeps Coleman's universe from shrinking any further, and
c) they think (according to Mr. Echo Chamber in the outer hall, Ben Ginsberg--- always worth a scoop of beans by himself) rejected voters make it easier to uphold a claim of "unequal protection", "fatally flawed system", "poor, rejected voters who did nothing wrong." They probably think (delusionally) this somehow improves their chances of a "do-over" election ("See, even Franken voters/witnesses are disenfranchised.....")
But most of the reasons things were quiet was a combination of Franken Team competency coupled with......
2) The Quiet Return of Joe Friedberg (1 razzberry)
Joe Friedberg is Coleman's lead attorney and has taken a LOT of snowballs and shaved ice down his breezers for his handling of the case the first 5 weeks. He has stumbled, struggled, been woefully unprepared and awkward. People have rightly wondered how this man got to his 72nd birthday as a trial attorney.
Well thats a lot of it right there. Friedberg does criminal defense, and in this case he has been plaintiff/contestant lead.
The difference is this: in a criminal case (and most of the TV dramas are criminal law) the burden of proof is on the prosecution. It is the DA who has to gather enough evidence to indict the Bush Crime Family, present the Cheney energy task force "Rape America" notes with witnesses, find the bloody knife with Pat Tillman's blood on it in Addington's desk with Rumsfeld's, Rove's, Libby's and Fieth's fingerprints on it. And the prosecution has to meet the standard of proof "beyond a reasonable doubt"; in math terms (although no one can measure it like this) if not 100% certain, then 99%, or 98%, or.... something beyond a "reasonable doubt."
Joe Friedberg has spent his entire career on the other end of this. That means he does NOT need to bring nearly as much evidence. He does NOT need to prove the case or even disprove it, but needs to only raise doubts and questions enough to get up to that threshold of "reasonable doubt"--but from the other end. Not the 97%+, but only 5% or 7% uncertainty. His natural stance is counter-punching, not leading with the jab.
And THAT is a big part of why the last 5 weeks went so badly. He had to LEAD. He had the BURDEN of PROOF. Instead of having to only "disprove" the other side's case a few percent he was in charge of presenting enough stuff to convince the ECC of a "preponderance of the evidence" (the standard in a civil proceeding.) So he had to get to somewhere to the far side of 50%. By training, inclination and decades of experience he was just not ready or able to do this.
Kossack and attorney beastiemom has been in the courtroom with Joe Friedberg and offered a telling couple comments yesterday:
Friedberg is an excellent attorney with a great (28+ / 0-)
reputation. I have said before I think it is odd that Coleman chose a defense attorney to be the lead counsel in this case because the burdens and approaches in the two instances are completely different. As a criminal defense lawyer, he doesn't have to prove anything. The burden of proof is entirely on the prosecutor. His only job is to poke holes in the prosecution's case, not carry the burden and prove his case, as he has had to do for Coleman. As speet wrote, you will see his brilliance emerge in this next part of the case.
I am not surprised that the court went out of its way to note that Friedberg had nothing to do with the non-disclosure. Although Friedberg and I practice on opposite sides of the fence, I know for a fact this is nothing that he would ever do. Clearly he was blindsided by Trimble, and the incompetence of the others on Coleman's legal team.
.........
Remember, Friedberg is a criminal defense lawyer, and spends a lot of time at the federal courthouse. He has clients that have done despicable things, but that doesn't mean that Friedberg is despicable. He is a very important part of our legal process. His job is to protect the interests of his clients within the ethical rules. I haven't seen anything in this case that says HE hasn't (no comments about Knaack & Trimble and gang).
In fact, beastiemom's entire comment thread is an EXCELLENT lawyer's reading on what's gone down so far, here:http://www.dailykos.com/...
3) Fritz Knaak and Tony the Trimble (3 1/2 razzberries, 2 large helpings of beans and a $7500 sanction)
ON THE OTHER HAND its coming out more and more that these 2 guys have REALLY put the sand under Norm Coleman's double-runner skate blades.
The Big E over at the MN Progressive Project had a story up yesterday where he writes:
The fault mainly lies with Coleman's original legal team, the inept duo of Fritz Knaak and Tony Trimble. They were the ones who were unprepared for the recount. Unlike Al Franken's campaign, they didn't have watchers at every recount location. Consequently, they were incapable of performing analysis of recount trends. They just put the blinders on and insisted they were winning. Until they weren't. Then somebody panicked...
Full story here, including "practicing law without a brain":
http://www.mnprogressiveproject.com/...
Beastiemom also provided some sourcing for the Coleman recount effort being in deep water from the start (ie starting with Knaak and Trimble):
Scuttlebutt at the courthouse yesterday (from someone deep inside the Coleman legal team) is that they realize that they are being completely manhandled....... they lost this case during the recount when they did not see the forest for the trees.
The smartest thing that Franken did was bring in lawyers immediately that had done this type of statewide recount before and understood how each decision in the recount would later affect the recount. They stragically outmanuevered Coleman's team from day one.
The most interesting comment made is that Coleman's side concedes that Franken's side knows what is in each ballot. They know that Elias's numbers are dead on..... you can take that to the bank.
4) The Paper Wars
Now while things in the courtroom may settle in to a routine with both sides playing to their strengths, the real drama looks to shift to the clerk's office next to the ECC court room. Papers, motions, filings, e-mails, boxes, faxes, FedEx and UPS (hell, things could arrive in saddlebags or be delivered in the teeth of the 2 lead dogs of a sled from an election official practicing for the John Beargrease Race in the North Woods.)
This battle has a written component that is just as important as the typical courtroom stuff out front of the cameras.
Two major items and a promise of a 3rd.
1. (2 razzberries and a medium helping of beans) Remember Monday when mercifully the Coleman side rested its case? Actually they "provisionally rested" their case. They asked (and got) permission to bring some final affidavits to the court's attention as evidence (I think). ECC said, "OK. Deadline: Wednesday noon."
Well it turns out a lot of this were those e-mails the Coleman campaign sent out to the 87 counties tring to get election officials to express their OPINIONS on absentee ballot issues. The ECC already shot these down after objections from the Franken side. But, at about 11:58 am they delivered.....the same stuff AGAIN....... and basically UNSORTED.
Blogger and atty annie over at the UpTake had a crisp round up (Note esp. the 2nd paragraph):
[Comment From annie esq]
Northern, to answer your question from 1.5 hrs ago, the judges were discussing the attempt by the Coleman lawyers to offer into evidence some boxloads of email printouts they had obtained from the counties. These email responses had already been ruled by the court as largely inadmissible because they would be hearsay and would contain conclusions without adequate foundation. The court gave Coleman until noon today to get their act together and submit what they wanted entered into evidence (this was the provision in the provisionally resting Coleman did the other day)
The Coleman atty wanted to offer them anyway with the understanding that they would have "inadmissable parts" and essentially leave it up to the Franken team to object to the inadmissable parts and the court to sort it out.
The judges and the attys chatted a bit about this latest episode of sloppy lawyering from the Coleman camp. That's what was going on just before the break. The attys were supposed to chat during the break about the feasibility of them sorting it out between themselves as to what Coleman would actually offer and in how many exhibits (they had proposed offering the whole shebang as one exhibit). If I were a judge I would be totally fed up by now with this sort of behavior from the Coleman people. Sloppy, sloppy, expecting the other atty and the court to do their work for them.
The ECC ruled to deny these box loads of old electric bills from 1977 found in Uncle Ingmar's attic qualified as evidence.....AND they declared the Coleman case "rested" (removing the "provisional". As in, "Time's up! The icicle as fallen.")
2. Over in the Secretary of State's office lists were arriving up to the afternoon deadline from all across the state. Friday the ECC ordered local election officials to open AND THEN RESEAL without looking at the ballot the "pile 3" absentee ballots. These are absentee ballots rejected for the 3rd of 4 reasons, the voter is not registered to vote.
However the absentee ballot package INCLUDES a voter registration card so a voter can update things along with their ballot. The card is SUPPOSED to go in the outer, mailing envelope, but apparently a number of voters may have put it in the inner, secrecy envelope with the ballot.
The ECC ordered local officials to carefully open these ballots, extract a registration card (if any) and reseal the ballots. Then officials were to make 3 lists:
a) ballot with no card (voter not eligible to vote; reason #3, not registered.)
b) registration card found but incomplete or defective somehow
c) card found and complete.
All 3 lists were due in to the Sec. of State's office close of business yesterday.
Total ballots involved: maybe 1500 or so (!)
a) list--- these votes will not count.
b) list--- need to take these one by one; how incomplete? No zip code? Probably OK. Middle initial present or absent? Probably OK. Out of state mailing address- maybe not; but a college student choosing to vote at home?
c) list-- so far so good, but officials to determine if ballot passes muster on other 3 reasons. (EG, registration may be good, but if voter voted in person on Nov. 4, then absentee does not count.)
Best guess how many may pass muster? I've seen 600-900, but your mileage and the ECC's will vary.
3. Eric Black at Minn Post caught this promise of more paperwork to come TODAY:
Franken lawyer Marc Elias said that he would file, Thursday morning, a motion to dismiss portions of the Coleman's case. He wouldn't preview the argument, but this much is obvious. Coleman's side officially rested their case today. Elias will argue that Team Coleman failed to prove the basic allegations that Team C made in its original petition for an election contest.
Eric's full write up here:http://www.minnpost.com/...
5) The Noisy Return of Ron Carey (2 1/2 raspberries and large helping of beans)
Ron Carey is chairman of the Minnesota Republican Party. Except for serving as the soil-stack pipe for the RNC funneling $ to Norm Coleman's side (the other week they handed on $250,000) the MN GOP has mostly confined itself during the Recount to sending out talking point memos to its "letter to the editor" writers across the state.
Oh there was one stupid moment back in December when Ron Carey was last heard from. The State Canvassing Board was reviewing challenged ballots from both sides (doesn't THAT seem like a different lifetime ago??) and it was being broadcast on the MN Judiciary building closed circuit system. Any organization who wanted to tap into the feed was welcome, and plenty of outfits did (WCCO, KARE 11 locally, CNN and even the Murdoch Mob on the national side). But it was Christmas week and the tech folk who run the equipment had the days off for holidays.
Mike McIntee and the UpTake techs volunteered to turn on the lights and cameras, aim and focus them in place of the state workers for free, and Sec. of State Mark Ritchie took them up on that.
Well Carey blew the muffler off his snowmobile and issued a statement that such a move by Ritchie showed he was in the tank with a leftist, Acorn-related, socialistic, pinko group like the UpTake...... because the UpTake was going to run the live feed! (No reporting, no commentary, just point & focus.)
Well apparently Carey has gotten jealous of the Ben Ginsberg show outside the courtroom. I mean Ben the Ginz is hogging all the limelight (lemonlight? orangelight? How do citrus fruits rate?) and talking points are getting boring.
So yesterday Norm spent the morning in ECC at his team's table. A few blocks away in St. Paul Al Franken was at a breakfast receiving an award... a do-gooder sort of thing but a nice "thank you" to the Franken for Senate campaign and how they ran things for a certain often overlooked set of voters.
Carey and the MN GOP are just despicable (said with Daffy Duck juiciness.)
ST. PAUL – With Al Franken set to receive an award from the Commission of Deaf, Blind and Hard of Hearing Minnesotans for having the "Most Accessible Campaign," Ron Carey, Chairman of the Republican Party of Minnesota, announced another award that Mr. Franken won today.
"During each phase of the recount and election contest, only one candidate can claim to have tried to disenfranchise as many Minnesota voters as Al Franken. After initially supporting the counting of every wrongly rejected absentee ballot, Franken sought to only count those ballots from heavily DFL areas, leaving thousands of Minnesota voters disenfranchised. He also has the dubious distinction of trying to disenfranchise every Minnesota voter by attempting to force the Governor and Secretary of State to issue an election certificate in violation of state law. It is for these reasons that we present Al Franken with the Republican Party of Minnesota’s ‘Most Disenfranchising Campaign’ award."
(A hat tip (h/t) is NOT right..... a scrape off the shoe (sot/s) to MN Democrats Exposed for providing this bit from the business end of a Roto-Rooter power snake.)
________________
And a reprint from yesterday for those who missed it, an open invitation to the Kossack community this Sunday. (Send me your e-mail (mine's on the winerev page here) so I can touch base with you if you want to be part of the effort, even if just for kibbitzing on Sunday):
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....
Thursday Morning Minnesota Media
Whoooo, last night got late with the diary with timeout for Lenten services and choir practice so I hope this is fairly coherent.
Duchschere and Lopez (where are the Scandinavians?) in the Star Trib are still writing back on page B5. Since that's about where these stories were the lsat couple weeks of "Trial by Norm" I suppose thats fair. D&L point out that while the witnesses sound a bit like the Coleman case what the Franken Team is doing is pointing out how rare and isolated these foul-ups were out of 3 million votes cast.
Best of all they close with a quote from the Senator-Elect himself! And on a topic Team Norm keeps trying to make into an issue:
Meanwhile, at an event at the State Capitol, Franken was asked about a possible do-over of the race. He said that "instead of really addressing and meeting the enormous economic challenges that face us, it seems that Senator Coleman has chosen instead to attack the Minnesota court system, attack election officials and try to erase voters' votes."
Franken added: "I know he's disappointed, but we've come through a fair election and a fair and very meticulous recount and we're going through now a very fair court challenge and I think it's time we address the people's business."
Nothing new up at the Pioneer Press so Minneapolis wins by default this morning on "Informing the Citizensry."
The Moorhead-Fargo Forum newspaper (as its likely known on this side of the border; google oddly lists it as Fargo-Moorhead, but any Minnesotan knows thats wrong) carries the AP story on the days events and a nice picture of the Senator Elect here:
http://www.inforum.com/...
Another day of the early shift (but late afternoon walks are nice now that the sun is out and UP) so this will need to hold you until the UpTake roars into action at 9:00amCT. Thats the latest from yust southeast of Lake Wobegon.
Shalom.