Coleman Camp Gets Caught Not Sharing Evidence With Franken Side, Coaching Witness
Norm Coleman's lawyers just had a very awkward moment in court, in their attempt to prove that absentee ballots were double-counted -- it turns out they've failed to share evidence with the Franken camp, involving a key witness.
The Coleman camp called Pamela Howell, a Republican election worker in Minneapolis, who said she heard another election judge exclaim that they had forgotten to properly label duplicates of absentee ballots that had been too damaged for the machines to count. She also said she did not recall whether they had made a note of this in the precinct incident logs.
Franken lawyer David Lillehaug then got up, setting out to impugn Howell as an unreliable, partisan witness. She admitted that she called up Coleman's legal team during the recount, informing them of the problem. Lillehaug then asked her if she'd spoken to the lawyers before her testimony today. "Not today," she said. He then asked if she ever spoke to them about her testimony. Yes, she did.
It was then revealed that several weeks ago she made notes on her computer, taking down the information she would need to know for her testimony. She gave a copy to the Coleman side -- and the Franken camp had never received it.
(By the way, this exchange included a fun bit where Lillehaug asked if her notes had a file name, and she said no. After some more direct questions, she said it was saved on her machine under the name "testimony.")
There then followed a contentious sidebar, after which Judge Elizabeth Hayden confirmed with lead Coleman lawyer Joe Friedberg that he would be willing to serve a copy to Franken. They then went into a brief recess.
When they came back, Lillehaug moved that Howell's entire testimony be struck. "The prejudice to contestee is that we are in the middle of a trial," Lillehaug said. "And it's clear that counsel for the contestant have had this document, have failed to disclose it, and in the middle of testimony we learn about it."
Friedberg responded: "The issue of prejudice is ridiculous. Any accomplished trial lawyer could cross-examine off this page with five minutes of preparation."
Lillehaug then asked Howell if she'd brought a print-out of her notes with her today. She said no. He then asked if she had a copy with her.
"Not anymore" she replied.
It turned out that during the break, while Lillehaug was looking at the document for the very first time, Friedberg approached her and showed her his copy.
Lillehaug then said this was yet another reason to strike her testimony -- she was coached during the recess.
The judges asked for Howell to leave the witness stand but to stay in the court building, until they rule on this, and for Friedberg to call his next witness.
















This is becoming a comedy reality show.
February 25, 2009 4:21 PM | Reply | Permalink
Well, comedy anyway.
If you wrote this up as a political novel, who would believe it?
Thanks.
mp
February 25, 2009 4:27 PM | Reply | Permalink
My thought exactly. Watch for it on HBO, brought to you by the same folks who created "Curb Your Enthusiasm": Norm
February 25, 2009 4:48 PM | Reply | Permalink
LOL, if Larry David is a secret Coleman adviser, that clinches it.
February 25, 2009 4:56 PM | Reply | Permalink
BTW, it's interesting how shrewd Howell is answering questions.
February 25, 2009 4:23 PM | Reply | Permalink
How long are the judges going to put up with this behavior from the Colemans? It's been one episode after the other and we aren't even half way through the trial. What are they going to try to spring in the next phase, when the Frankens present their case? At some point the legal strategy of throwing crap at the wall to see what sticks has got to be wearying.
February 25, 2009 4:27 PM | Reply | Permalink
Before all this, Howell was getting raked over the coals in cross-exam. I have the uptake on in the background while I work, and started paying attention during cross-exam. This has been the most entertaining day by far. I would encourage a visit to the uptake to review the video replay of this testimony.
February 25, 2009 4:30 PM | Reply | Permalink
Witness stricken. Yeah!
February 25, 2009 4:45 PM | Reply | Permalink
There must come a point where Coleman's lawyers suffer some penalties for all of this. I know why the judges are being "patient". But they are trying to make a mockery of that court.
February 25, 2009 4:53 PM | Reply | Permalink
I'm sure once they lose they can look forward to being sued by Norm Coleman himself. Someone's gotta take responsibility besides him, right?
February 25, 2009 4:58 PM | Reply | Permalink
Howell is actually answering the questions badly, if this report is anything to go by. The two things a lawyer really, really hates to see in a witness, their witness, is lying and grandstanding. A properly prepared attorney, having been diligent during discovery, will break a witness with the inconsistency of their testimony and it's variance with the evidence. Soon the witness looses all credibility with the finder of fact, be it jury or judge. Franken's lawyers caught Howell out with one of the oldest tricks in the book, 'Did you speak with Attorney so-and-so before giving your testimony?' The correct answer is 'Yes,' as there is a difference between preparing a witness for a deposition or cross examination (which is entirely legal and appropriate) and tampering with the witness (which is not). The difference is between an attorney telling a witness to stick to the truth and not to elaborate unnecessarily, and telling the witness not to reveal factually relevant and important material. That being said, it sounds to me like Colman's attorney strayed towards the latter. I have no idea what the standard for review in that court is though...
February 25, 2009 4:57 PM | Reply | Permalink
Don't you think if this was a big deal that they would have had the election judge testify?
All this witness could have done is give hearsay evidence.
They are just doing this to delay seating a 59th senator for the Democrats.
The republicans are soo desperate.
February 25, 2009 4:59 PM | Reply | Permalink
This will be the basis for their appeal; incompetent counsel.
February 25, 2009 8:43 PM | Reply | Permalink
It's apparent from TPM's reporting that Coleman has no case. The old legal adage is that if the facts are against you...argue the law; and if the law is against you... argue the facts. They had neither and that is why their case is a mish-mash of contradictions...trying one tactic one day and a different one the next hoping to paint Al Franken as some kind of anti-democratic vote-stealer. Instead, Franken and his team (perhaps taking a cue from President Obama) have conducted themselves with statesman-like calm and dignity.
The Al Franken "decade" he predicted long ago on SNL is about to start.
February 26, 2009 9:20 AM | Reply | Permalink