Minnesota Trial Hashes Out Possible Double-Counting -- And Coleman's Role In Creating It
The Minnesota election trial centered on a major claim of the Coleman campaign, claiming that absentee ballots were accidentally double-counted and gave an illegitimate leg-up to Al Franken.
The problem for them, though, is that this possibility came about under procedures to which they had agreed.
This all goes back to a procedure in Minnesota to make duplicates of absentee ballots that were too damaged to run through the machines on Election Night. After discussions with the two campaigns, state Elections Director Gary Poser created a rule for how to sort them in the recount. Unfortunately, scattered cases of negligence in creating or labeling the duplicates and originals introduced a bunch of problems.
Lead Coleman lawyer Joe Friedberg questioned Poser about all of this, and even brought up an e-mail where Poser admitted to an unhappy county election official: "I don't disagree, I lost that battle."
Then Franken lawyer David Lillehaug got up and showed who it was that defeated Poser: The Coleman campaign, and the Franken camp, too, who insisted on using original ballots. And when Poser sent out memos to clarify the procedures, after the problems first became apparent, Coleman lawyer Tony Trimble even responded that this was fine.
But starting in mid-December, the Coleman camp claimed that the application of this rule was "unilaterally imposed" by the state on the campaigns. If anything, as we saw from the examinations by both sides' lawyers, this rule was imposed by the candidates on the state.
This does bring us back to the Coleman camp's legal position at this point. They feel they are not bound by any prior positions or actions taken as a result of those positions, if they can argue the actions were illegal and/or made in error.
At his post-court press conference, Coleman lawyer/spokesman Ben Ginsberg responded: "It makes absolutely no sense to stick an agreement that is predicated on people following the law when in fact the law wasn't followed."
(Ginsberg press conference via The Uptake.)
Josh
Elana
Matt
Eric
Yeah, this pretty much sums it up- The Orthopedic Mode of legal argument:
Snip- Ordinary arguments build. One point adds to another and those add to another and when you think you’ve put forward enough of them, you utter a sentence that begins with “Therefore,” or something like it, and sit back with your arms folded and wait to see if your partner or the jury buys what you’re selling.
That kind of argument requires that the individual points add up to a totality that is convincing; all the parts have to support one another and that conclusion. If you argue with points that are mutually exclusive, then you’re almost certain to lose: Your partner won’t buy it and the jury won’t convict. The best-known example of the latter in recent years is perhaps the O.J. Simpson felony trial, which collapsed in large part because a glove the prosecutor said Simpson wore when he was committing two murders didn’t fit. Simpson stood in front of the jury with the glove that wouldn’t go over his hand, turning the hand with the ill-fitting glove this way and that, and looking at the jury with an expression that seemed to say, “See what foolishness this case is based on?” Later, in summation, his attorney said again and again, like a mantra, “If it doesn’t fit, you must acquit.” And so the jury did.
But in the legal world of motions, arguments aren’t cumulative. An attorney can put totally contradictory arguments out there, every one of which exists in a legal universe that excludes the others, and the judge or group of appellate judges can reject all in every regard but accept one and the lawyer may get the desired result anyway. -Snip
Also, called stalling.
http://artvoice.com/issues/v7n35/stop_stalling
February 23, 2009 7:01 PM | Reply | Permalink