Judges Show Coleman Mercy, Reverse Ruling To Strike Key Witness
The Minnesota election court just decided to cut Norm Coleman a serious break, reversing their decision yesterday to strike the testimony of a key witness in Coleman's attempt to prove double-counting of votes, after the Coleman camp failed to share evidence with the Franken side.
The court's memorandum explains why they took this severe step to begin with -- Coleman's repeated failures in the past to fully share evidence in a timely manner:
The Court recognizes that striking testimony is a severe sanction but notes that this trial has been underway for five weeks and that the parties have been repeatedly instructed of the need to supplement discovery responses. The Court believes this sanction was within its discretion in light of Contestants' repeated failures to adhere to their discovery obligations under the Minnesota Rules of Civil Procedure.
In plain English: The court took an extraordinary step because they were very, very angry.
But on the other hand:
The Court has the discretion to exclude testimony, but "the exercise of that discretion should be tempered by an effort to seek a solution short of exclusion that will accommodate the competing interests inherent in the discovery rules and the adjudicative process itself."
The record reflects that Contestants' failure to disclose the document was inadvertent and not in bad faith. The Contestee has now had an opportunity to review the document and prepare a proper cross-examination. Contestee will not be substantially prejudiced by permitting Ms. Howell to conclude her testimony.
The judges perhaps realized that Coleman still has a plausible legal claim in this witness -- that is, excluding her testimony would give him a potentially successful avenue of appeal.
So Norm just got a break. The court got off his back, and is allowing his witness back on the stand, and her testimony will be in the record. Another thing that will be in the record: The continued cross-examination by the Franken side, who will likely continue their effort to totally discredit her.
Josh
Matt
Eric
Brian
Actually, by reversing themselves, they screwed coleman. He knows that he is going to lose and you are correct that striking the witness would have given them a good argument on appeal. The judges realized that mistake and reversed themselves. I am sure franken is happy about this development and coleman is pissed.
February 26, 2009 11:27 AM | Reply | Permalink
Ditto. The side given the most rope at trial usually needs to be asking itself whether the court's tying a noose is onto the other end.
February 26, 2009 11:46 AM | Reply | Permalink
That is a great analogy. Permission to use sometime in the future?
February 26, 2009 12:05 PM | Reply | Permalink
I agree with you that the panel may have done Coleman no favors today but with a slightly different twist. I don't think the panel's initial rulling would have given Coleman a particularly good issue on appeal. Discovery sanctions are a discretionary decision for the trial court. The Minnesota Supreme Court would have been highly deferential to the panel's decision.
It probably would have been a good talking point for Coleman in the court of public opinion though. (It takes no great imagination to anticipate the Wall Street Journal editorial: "Coleman presented eye witness testimony of double counting, but the Minnesota panel struck that testimony from evidence, clearly showing their bias.") Considering that the ultimate arbiter of this dispute is the U.S. Senate, a good public opinion talking point may matter more to Coleman than an appeal issue.
Of course, Coleman will still have a talking point, but it will be a touch weaker. (The WSJ editoral will now read: "The panel ignored eye witness testimony of double counting when it decided against Coleman.")
February 26, 2009 12:59 PM | Reply | Permalink
No argument from me on the deference to the discretion of the trial court. The problem is death penalty type sanctions were witnesses are precluded. Especially in this type of dispute. It's not your run of the mill civil case. I would say that the judges realized that and reversed themselves to avoid any problems. I can see the arguments already on appeal and it wouldn't have been pretty in this context.
February 26, 2009 1:13 PM | Reply | Permalink
Are these Judges graduates of Pat Robertson's Regent University School of Law, of Monica Goodling fame, or do they, as their barrister friends, get paid more while in court? That they allow the Coleman crew so many ethical passes and fishing expeditions is beyond me.
February 26, 2009 11:45 AM | Reply | Permalink
It's good judicial, as well as moral, practice to give "benefit of doubt." I don't agree, however, that they've been allowing fishing expeditions; to the contrary, it seems to me that they've been continously fencing in the free-roaming Coleman herd.
Interesting to me is that the Coleman attorneys must realize that by pissing off the judges, they're making their own row harder to hoe. The only reason I can see for this sowing of the seeds of destruction is that they are hoping that the judges will become irritated enough to make a serious legal mistake. That doesn't seem to be happening. Appeals are only allowed on the basis of facts in evidence and procedural error, so it seems unlikely that an appeal will go anywhere.
Thanks.
mp
February 26, 2009 1:50 PM | Reply | Permalink
Be giving the Coleman side latitude, they are avoiding a basis for appeal.
February 26, 2009 11:59 AM | Reply | Permalink
But it undermines the basis for an appeal and makes it less likely to be granted.
February 26, 2009 12:25 PM | Reply | Permalink
Coleman is going to appeal regardless of this reversal of decision or not.
February 26, 2009 12:00 PM | Reply | Permalink
The reply immediately above was meant for this comment.
February 26, 2009 12:30 PM | Reply | Permalink
Damnation, don't judges even know how to use apostrophes any more?? When I saw this passage (my bolding):
I thought that the Court was slapping down both litigants, because an apostrophe after the s is a plural possessive. So I'm thinking, "Has the Franken team done this as well?"
It was only when I saw this passage that followed (my bolding again):
that it became clear that the problem was apostrophe misuse by the judges or someone writing for them rather than misbehavior by the Franken team. That sentence refers to one specific incident for which the failure was on the part of one side only, and they've still used the plural possessive.
Geez, when did the use of apostrophes join the pronunciation of "nuclear" in being a simple thing that significant numbers of Americans simply cannot seem to master?
Sorry for the grammar rant, but you see what sort of misunderstanding sloppiness like that can lead to.
February 26, 2009 12:03 PM | Reply | Permalink
Contestants are Norm Coleman and Cullen Sheehan. Plural possessive is appropriate.
Therefore, I am not for sure about where your grammar rant comes from, but we can be friends irregardless.
February 26, 2009 12:14 PM | Reply | Permalink
Didn't your mother teach you to never split infinitives and that prepositions are a bad thing to end a sentence with?
Along those lines... Little Johnie was down in the back yard and his mother noticed it was about to rain. "Johnnie", she yelled down to him, "come in up out of the rain"! "But Mom," Johnnie yelled back, "there's no rain to come in up out of from!"
How's _that_ for prepositional abuse :-)
February 26, 2009 12:38 PM | Reply | Permalink
You were kind to ignore the "irregardless" in that post.
February 26, 2009 4:47 PM | Reply | Permalink
There are, in fact, multiple contestants. Coleman is just one of the named parties in front of the 'v.'.
February 26, 2009 12:15 PM | Reply | Permalink
Thanks for mentioning the s' thingy. I too read it as the Court was chastising both sides for repeated failures to notifiy the other side of info they were presenting with regards to discovery obligations.
February 26, 2009 12:23 PM | Reply | Permalink
The witness currently on the stand, the head of Minneapolis voting, is going through all the ways that there are small discrepencies in the tally at any given precinct. Seeing as how Coleman's lawyer is giving himself an ulcer while objecting every 3 seconds, I'd guess that all of these points will be revisited with Ms. Powell when she reappears.
Did anyone else notice how belligerent Powell was yesterday?
February 26, 2009 12:07 PM | Reply | Permalink
i didn't realize revotes were possible. that certainly would have been a helpful solution in the 2000 election...
February 26, 2009 12:11 PM | Reply | Permalink
Coleman's team is daring the court to throw them out. The court is gritting teeth and counting to ten. It is a battle of wills.
February 26, 2009 12:26 PM | Reply | Permalink
If you haven't been following Eric's Paper Chase, you should be BLOCKED PERMANENTLY
February 26, 2009 12:49 PM | Reply | Permalink
And let me call again for: BONUS for Eric!
February 26, 2009 12:50 PM | Reply | Permalink
Seconded!
February 26, 2009 2:32 PM | Reply | Permalink
A hypothetical scenario: if Roland Burris went ape-shit, so to speak, and starting shrieking and jumping up and down, and ripped off Nancy Pelosi's face, would the Senate eject him? I can't think of anything less that would make them get rid of that disgraceful clown, can you?
February 26, 2009 12:54 PM | Reply | Permalink
How about Illinois just going ahead and holding a special election to end his temporary appointment as expressly allowed by the 17th Amendment? Seems simple enough to me.
February 26, 2009 1:03 PM | Reply | Permalink
That's a racist rant from someone who keeps changing his sign on. He was doing the nag thing yesterday and started to today. Maybe it's lush or insanity.
February 26, 2009 1:11 PM | Reply | Permalink
I brought it up with TPM staff and his limo and zima IDs are "Known to the Authorities" :-)
If he wants to graduate from troll-preschool though he really needs to do some research on subtlety and irony first.
Back in my day you had to do more than say Hitler or monkey before you could get anyone to feed you. These new-fangled pre-trolls have no depth or creativity. 2 out of 10. Fail.
February 26, 2009 1:30 PM | Reply | Permalink
Yes, you note the poor quality of trolldom these days. And that's actually surprising, since so many people are unemployed. Does it mean that only sub-par folks become repubs anymore? Or might it suggest that repub thinking leads to a decline in mental acuity? It's a sad, sad thing to see fellow Americans with such poor analytical skills. Maybe it's a sign of our poor educational system? Though Dems seem to be doing ok in thinking clearly. It really bears pondering.... These trolls would be better off worrying about their own mental status, rather than trying to disrupt TPM threads. But oh, well.... them's the folks the repubs are left with, I guess.
February 26, 2009 1:43 PM | Reply | Permalink
believe me, my 770 gmat score only faintly reflects my intelligence. I just post shit here to annoy you jerk-off parlor intellectuals
February 26, 2009 1:50 PM | Reply | Permalink
It's pretty much a truism that people who claim to be geniuses ...."aint." Nothing about you suggests that you are an exception.
February 26, 2009 4:50 PM | Reply | Permalink
oh subtlety and irony would be wasted on you clowns.
Cf. my GF adores me because I weave poetry and literature into my quite hilarious Russian humor. And I have three Daily Show appearances to my credit, although I am by trade a scholar and lawyer.
February 26, 2009 1:44 PM | Reply | Permalink
That would be your "GF who lives in Canada", right?
February 26, 2009 2:14 PM | Reply | Permalink
eh, why Canada. She's actually Tatar, a people famous for fierce bravery and beautiful women. I mention her ethnicity merely to deflect the accustion that I don't value or appreciate "diversity."
February 26, 2009 3:15 PM | Reply | Permalink
You do realize that many guests are brought on to the Daily Show merely for ridicule, right? It looks like they've decided your a useful target.
February 26, 2009 6:00 PM | Reply | Permalink
make that "you're" a useful target.
February 26, 2009 6:02 PM | Reply | Permalink
In Bush v. Gore, the USSC ruled that equal protection prevented a hand recount. They "reasoned" (among other things) that there couldn't be a fair recount because there are differing standards in different counties.
What they didn't conclude and should have concluded was that if the recount wasn't fair, then the entire original vote likewise wasn't fair. Logically they should have thrown out the Florida vote entirely if they applied their equal protection premise.
And, if that's the case in Florida, it also should have been appled across the entire country. California (I presume) has different voting laws than Nevada (etc.)
Since that wouldn't have fit their agenda, and would have destroyed the voting system as it was, they had to explicitly state their ruling didn't establish precedent and that it applied only to Bush v. Gore.
Wouldn't a revote in Minnesota be logical if differing local standards violate equal protection? That is, if the procedures and rules for counting ballots in Hennepin County differ from those in Ramsey county, (and if Coleman can demonstrate that difference made the difference in the outcome), why shouldn't there be a revote using a single statewide standard?
(PS -- I voted for Franken and gave his campaign money. And I believe Coleman is one of the more reprehensible characters in the public scene.)
February 26, 2009 1:29 PM | Reply | Permalink
Your strongest point was really "didn't fit their agenda." At this point in technological and organizational development, there will always be some minor inconsistencies in how one group of counters looks at something at how another does. You can seek to minimize them but you can't eliminate them under current conditions. You can add in externalities like the weather to this mix if you like; how could it be fair that it was really cold in county A, raining in B, and fair weather in C. Witnesses can *easily* be found who will swear that they wanted/tried to vote in A and B, but were impeded by weather. Sounds pretty unequal protection to me, so each time there are any differences (size of voting location, length of lines, noise level inside, temperature inside), we can throw out the vote and begin anew. Especially if our candidate loses.
Nobody cares about this equal protection hokum, the idea is to throw mud on the wall in the hope that it will stick long enough to be sustained in a 5-4 victory.
February 26, 2009 2:09 PM | Reply | Permalink
People forget that the equal protection garbage that was invented for Bush v. Gore was universally discredited and won't be used again. They even said their ruling was not to be used as president in other cases.
Second, the equal protection garbage that they invented was only triggered because there was only a request for a limited recount of some counties. That was their bullshit basis, anyway, not different standards.
Finally, Bush v. Gore was a presidential contest not a statewide contest. It just isn't the same. And Minnesota isn't Florida. The recount was done in an orderly fashion, complete with a guide book that was followed everywhere.
So there.
February 26, 2009 3:03 PM | Reply | Permalink
Will someone please just tell me when this will be over?
February 26, 2009 1:45 PM | Reply | Permalink
November 4, 2014
February 26, 2009 2:02 PM | Reply | Permalink
I know it's a little early for nominating people for the Golden Duke award, but Norm Coleman should be nominated.
February 27, 2009 2:07 AM | Reply | Permalink