Minnesota Judges Strike Key Coleman Witness, After Failure To Share Evidence
The Minnesota election court just laid down some serious punishment against Norm Coleman's legal team, granting Team Franken's motion to strike the testimony of a key witness involved in Coleman's claim that absentee ballots had been double-counted.
This came about because the witness, election worker Pamela Howell, had typed up some personal notes weeks ago and gave them to the Coleman campaign, who then failed to properly share them with Franken. Without Howell's testimony, the Coleman camp's efforts to show double-counting have been unambiguously damaged.
"The court will issue a written order with further explanation," said Judge Elizabeth Hayden. That further explanation should be interesting to read.
Just a little while before they made their decision, the judges conducted a short Q & A with Coleman lawyer Tony Trimble, asking him why he'd failed to share evidence and why this shouldn't disqualify the witness.
Trimble admitted that they'd had the document at the time evidence was being exchanged between the two teams, but he claimed the campaign hadn't thought about it -- that it was insignificant. "Fine, I believe Mr. Lillehaug [Franken lawyer] is correct," said Trimble. "It was not produced, but it was not intentionally squirreled away. It was overlooked."
Trimble instead proposed that the Franken camp be given some time, perhaps even a day, to review it before proceeding with Howell's cross-examination: "I would be surprised if it took any more time than 10 minutes to examine this statement, to see that there's nothing new."
The judges weren't convinced.
One other thing: Before they went into the chambers, the judges had to ask for a copy of the document, so that they too could review it for the first time. Ouch.
Josh
Elana
Matt
Eric
Hrmmm. I have a copy of the FRCP next to me... Violation of discovery rules I wonder? Seems likely.
February 25, 2009 5:10 PM | Reply | Permalink
Question, how bad does Trimble and Co. seem? Could this charade end in a black eye? Complete humiliation? Disbarment? Nothing? I'm just asking, because to me their incompetence and obstruction seems a bit much.
February 25, 2009 5:11 PM | Reply | Permalink
Obstruction seems to be the whole point of the suit. Why should they care if the trial is delayed another day or so? At this point delay and obstruction are Coleman's only options. Barring something really bizarre, he isn't likely to change the count enough to be declared winner.
February 25, 2009 5:25 PM | Reply | Permalink
It's now a Republican Strategy to keep Franken off of votes for as long as possible.
February 25, 2009 6:29 PM | Reply | Permalink
Absolutely . . . the Coleman camp knows he lost the election . . . so all they have left is to prevent Franken from voting. Again, I ask why is this court spending the time and money to continue this obvious politically motivated case?
February 26, 2009 12:09 PM | Reply | Permalink
Very clever, these Coleman attorneys...the Keystone Kops strategy.
Do I understand correctly that one of these guys is a CRIMINAL defense attorney? Holy smoke. This kind of lawyering could get you the electric chair for jaywalking.
February 25, 2009 5:23 PM | Reply | Permalink
Ironically, the fact that Friedberg is a crim defense attorney probably hurts him. The rules seem to be much looser there, and he seems off balance with what is more closely described as complex civil litigation. In a crim case, last minute stuff happens all the time. Oops is an excuse. In civil cases, the judges hold your feet to the fire on this stuff.
February 25, 2009 5:29 PM | Reply | Permalink
You are absolutely right; I practice criminal defense law, and dread any time a civil matter involves me. Crim? Loosey-goosey, everything done on a handshake and that handshake is AS GOOD AS GOLD. If I tell the DA I will get him x, its DONE. DA tells me he will do X, its done; no threats, etc.
Civil, with its depositions, discovery rules (we have 'em; I ignore 'em, unconstitutional!!) is a minefield, in which I rarely venture.
February 25, 2009 7:27 PM | Reply | Permalink
It's almost as if they've a customized dartboard and every night at the bar one of them is blindfolded and throws a dart. Tomorrow's tactic: They are going to start intentionally mispronouncing names! That'll get 'em!
February 25, 2009 5:56 PM | Reply | Permalink
The same thought occurred to me.
I had not realized the Keystone Kops had opened a law office.
What a country!
February 25, 2009 7:16 PM | Reply | Permalink
Well, the ruling would be that the witness (and the document) be excluded due to surprise. There isn't a rule that controls this, it is just an inherent authority that the Court has. Ordinarily, the remedy is usually a continuance for the prejudiced party to review the evidence. Excluding the witness is within the discretion of the court, but I am surprised that they did that here. My guess is that they didn't like the way Freidberg handled this. Also, the fact that the witness said she didn't have a copy anymore and was reluctant to admit to the name of the computer file, well, all of it just smells.
February 25, 2009 5:26 PM | Reply | Permalink
I agree that striking the testimony seems like a harsh remedy for this discovery violation. Normally, I would expect the court to follow the remedy suggested by Mr. Trimble. I wonder if this signals that the judges are fed up with the Coleman team's antics. I hope so.
... there's a reason attorneys usually don't openly criticize judges like the Coleman team did last week ....
February 25, 2009 5:57 PM | Reply | Permalink
They may be signaling that they weren't prepared to give her testimony much weight anyway. She was obviously pretty partisan.
February 25, 2009 6:01 PM | Reply | Permalink
They've given Coleman's lawyers way too much latitude already. This smackdown only seems harsh if you weren't paying attention to the way Coleman's attorneys have (mis)handled this case up until now. This sanction was long overdue.
February 25, 2009 8:50 PM | Reply | Permalink
While I agree that Coleman's team deserves sanction I wonder if it isn't just what they were looking for. They have been daring the court to slap them. Now they have a bloody shirt to wave at the SC. More to argue about and futher delay an outcome that they know won't go their way.
February 26, 2009 4:31 AM | Reply | Permalink
There is an authentication issue here that cannot be resolved if she cannot produce the original electronic file. Notes that were taken contemporaneously might indeed be valuable evidence. But if she can't produce the original computer file then there is no way of authenticating the date, or indeed, of ensuring that the document wasn't changed over time, "massaged" to be more supportive of Coleman's position, etc.
Normally, I would expect the court to ask to see the document and to question the witness, introduce it, and then pointedly refer to its unreliability and irregularity in deciding not to rely on it.
But on the whole, this strategy must be pissing off the judges royally: hiding witnesses or documents and lobbing them at the court one at a time as one argument after another is rejected.
February 25, 2009 6:31 PM | Reply | Permalink
Okay, instant poll.
When Franken is finally seated and enters the Senate chamber for the the first time to take the oath, are the Senate Republicans going to be
a) Hypocritically polite
or
b) Pissypant poopyheads?
February 25, 2009 6:18 PM | Reply | Permalink
Hypocritically - b (all in the name of justice, which they will claim was not served here -- they have no shame)
February 25, 2009 6:47 PM | Reply | Permalink
c) Irrelevent. Specter, Snowe, and Collins have shown moderation, a willingness to be bipartisan, have been shunned by their Republican collegues and, IMO, can be counted upon for many votes going forward.
February 25, 2009 7:06 PM | Reply | Permalink
I'm just wondering if they're going to pretend to be collegial and gracious or if they're going to sit there and grump and glower like they did last night. They've built up Franken in their minds as some kind of kind of emissary of Evil Incarnate the way the Chinese have done with the Dalai Lama, to the point that I'm wondering whether they can walk it back without another base furor. But I'm only wondering in a strictly spectator sport kind of way.
February 25, 2009 8:32 PM | Reply | Permalink
The longer this drags on the more I'm convinced that the GOP gave Coleman his post as an adviser to the Republican Jewish Coalition, if would agree to drag this out as long as possible.
He's demeaning himself and the process to the extent that if by some miracle he did win, he would have little credibility as a Senator. It's just nuts.
February 25, 2009 6:51 PM | Reply | Permalink
I think Coleman will get a lot of monetary gifts to help him pay for his criminal trial for him carrying on this case, and the subsequent appeals. If he wins, all the better, but if he loses at least he won't have to worry about his legal bills.
He's in a no-lose situation.
February 25, 2009 7:05 PM | Reply | Permalink
This is what happens when you do it on the cheap and discover your lawyers rely heavily on LegalZoom.com.
February 25, 2009 7:43 PM | Reply | Permalink
I consider Coleman a sleazy pimp. How dare Shrub send a nobody like him to condemn the U.N.? Just a contemptible lap dog with nothing to lose. As always...Think he is an a--hole? You oughta' see his electorate. What happened with the illicit funding investigation between some Texan and his wife? He needs to get some "time." A true slime-ball!
February 25, 2009 8:16 PM | Reply | Permalink
The TX lawsuit will be going to court in April. Coleman bumped it back for awhile but it's not going anywhere.
February 25, 2009 8:49 PM | Reply | Permalink
Thanks for that information. I'm a half hour south of MN. Never met one I didn't like. We've got Grassley...We feel MN's pain!
February 25, 2009 8:58 PM | Reply | Permalink
I fantasized about knee-capping Norm Coleman yesterday. Then, after I had that thought it was followed by: but he'd still be able to go to court. Damn! Even my fantasies can't shut Coleman up!!
February 25, 2009 8:48 PM | Reply | Permalink
LMAO
February 25, 2009 10:15 PM | Reply | Permalink
Does anyone have an update on the FBI investigation of Coleman
February 25, 2009 10:16 PM | Reply | Permalink
Please someone wake me up when Norm is gone. He was always a sleaze, and now he's ridiculous. Poor Minnesota. It's embarassing, and deprives them of their right to adequate representation in the Senate. Can't this be stopped in some way? It's very bad for the country, not just Minnesota.
Diana Witt
February 25, 2009 10:23 PM | Reply | Permalink
I was hoping that the follow-up line to that headline would be 'Witness Sees Stars'.
I wouldn't doubt the judges are ready to go upside the head of Norm and his lawyers. Everyone in MN is going to go out and dance in the snow when this is over.
February 25, 2009 10:38 PM | Reply | Permalink
Dancing in the snow? Ha! We'll all be doing cannonballs off the raft at the rate this is going.
February 26, 2009 12:09 AM | Reply | Permalink
test
February 26, 2009 3:01 AM | Reply | Permalink
I too was a little surprised that they excluded the witness - I imagine the commenter above is right: they are finally just that aggravated with his attorneys that they have had it. More importantly, I was kind of watching the hearing on TheUptake.org and it really seemed that this wasn't an oversight but a deliberate attempt at getting away with something. I think had a lot to do with it.
First they don't indicate that she made notes, they don't turn them over and then they coach her during a recess. She hems and haws over the existence of the notes, won't id the computer file until just about forced to. It all makes it appear intentional and no judge will ever let you get away with intentional nonsense like that.
Last but not least: yes I agree they've been fairly relaxed with what they have let Coleman get away with - that said, and I think the preliminary rulings indicate where this is going, if they think they are going to rule for Franken then they are better off letting Coleman get in whatever he wants now, give him leeway and then there are few complaints that can be made later when he loses.
February 26, 2009 7:36 AM | Reply | Permalink
is there a link to the video of this? i would love to see the sleazy republican lawyers getting their due.
February 26, 2009 8:56 AM | Reply | Permalink
Here is the link to Howells testimony. Lillehaug starts at 16:00 and the best part is at the end. From about 33:00 and on is where Howell gets cornered.
http://www.mogulus.com/theuptake/ondemand/pla_6452528468179140861?playeraspectwidth=4&playeraspectheight=3
February 26, 2009 10:27 AM | Reply | Permalink
Thanks! That's the best entertainment I've had all day!
February 26, 2009 1:13 PM | Reply | Permalink
Why lawyers get scorned. They are trying to cheat their way to a win. Anything resembling Florida in 2000? Weren't one or more of these characters there also? One thimg the withholding of discovery does is increase the billing hours. Colemasn will lose but they won't.
February 26, 2009 9:02 AM | Reply | Permalink
It's pretty clear that there was no contemporaneous record of the polling site confusion (if there was any). No record was made in the precinct incident log.
She typed up some notes on her recollection of the incident just a few weeks ago--not even close to the time of the alleged incident. She provided these notes to Coleman's team, obviously in an effort to help them.
Her notes were not provided to Franken's team, even though her testimony was going to be used as evidence of a flawed syatem and election. It can't be both--an insignificant piece of paper and the foundation of evidence as to a flawed election.
A sneak attack based on the re-creation of a memory of a non-recorded incident.
February 26, 2009 10:08 AM | Reply | Permalink
It's pretty clear that there was no contemporaneous record of the polling site confusion (if there was any). No record was made in the precinct incident log.
She typed up some notes on her recollection of the incident just a few weeks ago--not even close to the time of the alleged incident. She provided these notes to Coleman's team, obviously in an effort to help them.
Her notes were not provided to Franken's team, even though her testimony was going to be used as evidence of a flawed syatem and election. It can't be both--an insignificant piece of paper and the foundation of evidence as to a flawed election.
A sneak attack based on the re-creation of a memory of a non-recorded incident.
February 26, 2009 10:09 AM | Reply | Permalink