Minnesota Supremes Grill Coleman Lawyer On Lack Of Evidence
The oral arguments just finished at the Minnesota Supreme Court, in Norm Coleman's appeal of his defeat at the election trial, with Coleman's lead attorney Joe Friedberg arguing that serious constitutional issues mean the trial court's legal conclusions should be overturned and more previously-rejected absentee ballots from Coleman's selected list put into the count. Franken's side obviously argued differently. For this post, let's focus on the Coleman side.
It's always a tricky business to read clues into the questions that judges ask the lawyers during these proceedings -- despite some basic assumptions about how this works, judges can surprise you. But if we just go by the basic assumptions, it didn't look good for Coleman, with the judges asking pointed questions of Friedberg that at certain points amounted to ridicule of him for putting on a shoddy case.
At one point, Justice Christopher Dietzen went over Team Coleman's written offers of proof -- filings of proposed evidence that an attorney makes when a trial court won't admit it as official evidence, but he wants to preserve it for future appeals. "I've never seen an offer of proof like this," said Dietzen, complaining that the offers didn't actually identify specific potential witnesses or what their presumed evidence would have been been -- only continued arguments that "a substantial number" of ballots exist. Dietzen added that "the rules of evidence, the rules of civil procedure apply. Now why is this offer of proof not inadequate, in that we don't have admissible evidence that can show whether you've met your burden?"
It should be noted that Dietzen was appointed by Republican Gov. Tim Pawlenty, and came under blogosphere criticism for having donated in previous years to Norm Coleman's campaign. I should add, though, that in all the time I've watched this case I've never seen any evidence of improper judicial partiality on Dietzen's part, regardless of whom he presumably voted for on Election Day.
Justice Paul Anderson, who was appointed to the court in 1994 by then-Republican Gov. Arne Carlson, also said he was "very bothered" by the offer of proof. "It says you will obtain sufficient evidence," Anderson complained, then characterizing it as "basically just lists, lists of names" on ballots, but no details about the underlying stories of those ballots.
Justice Lorie Skjerven Gildea, a Pawlenty appointee widely viewed as a conservative, also asked Friedberg about the lack of evidence, to which Friedberg replied that the court dismissed the Coleman camp's central claim as irrelevant -- that counties across the state applied different standards in admitting or rejecting absentee ballots. "They clearly excluded evidence," said Friedberg, which is the evidence they truly needed to prove their case.
Justice Helen Meyer, an appointee of the Independence Party's Gov. Jesse Ventura, who had previously donated to the late Democratic Sen. Paul Wellstone and is viewed as a moderate on the bench, asked Friedberg why he did not compile evidence from all counties, as opposed to about two dozen, to prove their case about unequal treatment. "You're asking us to presume that, based on the evidence of a sampling of counties," said Meyer.
Towards the end of his initial argument period, Friedberg referred back to Bush v. Gore -- which he unbelievably prefaced by saying, "And I hesitate to use this case for anything," despite the fact that his side has used that case for just about everything. Friedberg said that in Bush v. Gore, it was enough to show arbitrary treatment of ballots between Broward County and Palm Beach County.
Friedberg said they've gathered plenty of evidence from the two-dozen counties they did call -- that counties used a varying standard, and that substantial compliance should be enough to let these ballots in, as opposed to a strict compliance standard used by the trial court. "We've made our case," he said forcefully. "You can't make it any better than that!"
Justice Anderson shot back. "I still have problems with your saying we're a substantial compliance state," Anderson said. "And as loud as you speak on this issue there's language I don't think you can overcome."
Josh
Matt
Eric
Brian
"judges asking pointed questions of Friedberg that at certain points amounted to ridicule of him for putting on a shoddy case."
Ouch!
Well, try to at least say *something* nice about Friedberg, Eric! Was he wearing something flattering? Good hair day at least? ;)
June 1, 2009 12:27 PM | Reply | Permalink
Well I think they complimented him on his loud speaking voice later on:
;)
June 1, 2009 12:40 PM | Reply | Permalink
Yeah that was mighty gracious of Justice Anderson, you're quite right. Complimenting counsel's deftness in making an argument through petulance and insistent repetition that can't be supported in law.
;)
June 1, 2009 12:47 PM | Reply | Permalink
Friedberg said they've gathered plenty of evidence from the two-dozen counties they did call -- that counties used a varying standard, and that substantial compliance should be enough to let these ballots in, as opposed to a strict compliance standard used by the trial court. "We've made our case," he said forcefully. "You can't make it any better than that!"
JUSTICE ANDERSON SHOT BACK. "I STILL HAVE PROBLEMS WITH YOUR SAYING WE'RE A SUBSTANTIAL COMPLIANCE STATE," ANDERSON SAID. "AND AS LOUD AS YOU SPEAK ON THIS ISSUE THERE'S LANGUAGE I DON'T THINK YOU CAN OVERCOME." (My caps)
Friedberg's lost that Justice. That's one vote in the Franken column.
June 1, 2009 12:32 PM | Reply | Permalink
this entire case is a lost ditch stand of Coleman when it is my opinion that he knows in his heart that he ahs been shown conclusively by the long process - that he lost. It is not doubt a hail Mary pass that he assumes will be enough to alter the outcome of this case so his client goes back to the Senate. Frankly, all it will do is make Coleman look like a shine baby. He is a shame to Republicans. first, his lousy campaign and then his conduct since he LOST the election. He has no consideration for his state either. Theya re short on Senator now. If he is wise, he will let this move on to its fair conclusion and then retire to rethink his behavior.
June 2, 2009 9:28 PM | Reply | Permalink
I would hope that after winning these frivolous lawsuits, Franken (even though I would never have voted for him myself) will sue Coleman and his crowd for the lost wages he has lost representing the folks who elected him as well as the value of the perks he has missed...
On the other side, though, he HAS gained enough material to last him a lifetime of standups after his stint as a politician....
We had the Bush/Gore fiasco and now the Franken/Coleman debacle. I'll wager from now on many more elections will go follow this route... as we slide down our slope... continuing to root for OUR team of scoundrels...
June 1, 2009 12:39 PM | Reply | Permalink
given enough time and money, there is nothing right-wing and corporate lawyers will not argue. They can just throw unending crap against a wall and wait for something to stick. It doesn't matter if it is plausible, it doesn't matter that they are obviously interested in money or politics, or the convergence of money and politics.....it simply is a matter of having enough money to keep assaulting, keep delaying, keep appealing until they eventually find a way with pro-business and corporate/power/status quo friendly judges.
The pro business, corporate friendly judges are everywhere. And even judges who do not want to upset the apple-cart, or the powerful, or the institutions because they want ORDER and COMPLIANCE and CONFORMITY....can also be found by the dozens.
Leftwing groups, and average citizens simply do not have the resources and the single-minded determination that Corporations (and their rightwing pet legislators) have. Moreover, any judges who are sympathetic to lefies do not have the numbers or the powers to overcome the rightwing/corporate slant. They are more fearful of powerful interests than they are fearful of mere individuals. The powerful can hurt them more, see that they don't win re-election, deny them future funding and dry up all their opportunities. Average citizens and watchdog groups just cannot tilt the table in the same way.
This principle is the same everywhere. Media, lawmaking, judgeships, regulators, finance, policy, lobbying....yet our country and talking heads and pundits and media constantly act like the playing field is pretty level. Common peer pressure is to shrug shoulders, say "whaddya gonna do", and tell people to quit whining and get a life.
June 1, 2009 12:46 PM | Reply | Permalink
Look at the bright side. Every dollar that Coleman's supporters (mostly just wealthy Texans at this point) dedicate to this lost cause is one less dollar they can spend on elections where they actually have a chance of winning.
And the icing on the cake: part of every dollar they spend on Coleman is going to pay some of Franken's legal fees. Al should send them thank you notes.
June 1, 2009 12:59 PM | Reply | Permalink
As a Texan, my hope (after the hope that Franken wins and soon) is that the money being spent by conservative Texans means that the conservatives who currently dominate Texas Politics because of their money and the conservative evangelicals will be much weaker in 2010. Let them - Please! - throw a lot of money down such ratholes.
June 1, 2009 2:17 PM | Reply | Permalink
I ask you is Kleefeld adorable or what?
The People rest your Honor
June 1, 2009 12:54 PM | Reply | Permalink
For this we had to wait another whole month? So they can go to the MN Supreme Court and peddle the same stack of fail they failed to sell last time? Is there any stronger evidence that Coleman is not really serious, but is simply waging a delaying action for political reasons?
I hope they get this over with quickly. I can't believe we're going into summer still listening to these people from Team Coleman. It's like watching the same episode of The O'Really Factor over and over. Enough, already!
June 1, 2009 12:56 PM | Reply | Permalink
The judges were knowledgeable and had obviously done their homework. It would appear they fully recognize that the eyes of the US justice system are upon them. Leaves one with every confidence the decision will be fair, well thought out and
well explained. Hopefully this will minimize future potential litigations re.. this matter
June 1, 2009 12:59 PM | Reply | Permalink
This still looks to me like Justice Delayed. It's been seven months of foot dragging now.
I assume that Minnesota Judges are elected, right?
June 1, 2009 2:21 PM | Reply | Permalink
Former Senator Coleman, you have the worst case since Larry Craig and Al Franken clearly and legally won the popular vote. We're only going to let you delay this for another decade. That's how we roll in Minnesota.
June 1, 2009 1:21 PM | Reply | Permalink
How would it have been done differently in another state?
June 1, 2009 4:13 PM | Reply | Permalink
I don't know if other states require all court proceedings to be completed before the certificate is signed.
June 1, 2009 7:45 PM | Reply | Permalink
I hope this ends soon. Coleman is only being used as a block for the GOP. Once Franken is given his rightful seat the GOP will through Coleman under the bus, where he should be. I hope Coleman gets a long jail sentence in his upcoming fraud case.
June 1, 2009 2:42 PM | Reply | Permalink
The polls are against Coleman and his lawyer failed this appeal but he doesn't care because he is aiming for the Supreme Court. If he does I hope US Supreme Court refuses to take his case.
Does Coleman & team not realize how many MN citizens in the election process and the legal system that they are insulting with their charade?
Coleman is so tiresome that he is beyond ridicule.
June 1, 2009 3:09 PM | Reply | Permalink
How does this work: is the substantial vs. strict compliance issue about the different standards used on Election night concerning in-person voters as opposed to absentee voters? Or are we talking about absentee standards only? Does equal protection have to prove bias, or is differing interpretation a reasonable standard?
Didn't Friedberg say today that there was an assumption of registration on election night? But does that apply to in-person voters? Just playing Devil's advocate here.
I do maintain that in our worst nightmare, the Supreme Court of Corporate Interests could take this case and pull a similar Bush v. Gore (I know, I know -- it's not a national case. I get it, but look who we're talking about here). It would appear to me that the Supreme Court would have to find that uniformity of standards is the measure of the law. That would mean precedent for adequate voting machines in EVERY precinct in these United States. Adequate and substantive training of every election official in these United States. The Republicans could no longer argue states' rights or the unspoken but no-less-true belief that the poor people are not entitled to the same election experience as the rich.
I'm worried that this may be remanded back to the ECC. In that horrible event, would Franken be able to adjust the Coleman dream-list of only potential Coleman voters?
God.
June 1, 2009 3:59 PM | Reply | Permalink
Bush V. Gore !!!! Uh Oh !!!!
June 1, 2009 4:53 PM | Reply | Permalink
Attention Court Judges, just say, "No" to Coleman!
He is stalling and just "Coleman-izing"...
BTW: Coleman-ize
Delay by any legal means possible, for as long as possible... just because you can, because you have enough money to pay for it!
June 1, 2009 5:40 PM | Reply | Permalink
Seat Franken NOW!
June 1, 2009 7:15 PM | Reply | Permalink
As we all know, for smarmy Normie it's never been about "winning" the case. He knows as well as anybody that he has no chance. Instead, it's about maximizing the delay between now and when Senator Al Franken is confirmed.
One of the few good things that may come of this mess is that Goober Pawlenty is busy screwing his career into the ground. Voters in Minnesota are getting pretty sick of his two-faced pretense of solemn respect for the law...when it's convenient for Republicans.
June 1, 2009 10:19 PM | Reply | Permalink
A recent article revealed that the MN State Supremes sometimes ask each others' questions, so that the lawyers can't read exactly which judge is leaning which way.
It does look as tho some MN counties approved a few absentee ballots in error. Team Coleman does not want to call these mistakes, but rather "less rigid standards". Then they can argue that the lower standard should be applied to many more rejected absentee ballots.
But there's a problem with this, too. The rejected absentee ballot pile has been dipped into twice already, once during the recount and once during the court challenge. Each time, Franken came out further ahead.
June 2, 2009 11:36 AM | Reply | Permalink
isnt it a sad comentary on our political system that it has turned into a ridiculous battle over party first and the hell with whats right for the country, No wonder the republican party has gone down and down. These people are nut cases, extremist instead of voices of this country. If this is what conservatism is I want no part of it. Coleman is being used by the party and the michigan people are the losers... Time to disband the gop and start fresh with a party that has this countrys best interest in mind. The easy money has sure turned our politicians into ridiculous animals,
June 2, 2009 12:29 PM | Reply | Permalink
From "The Stephanie Miller" radio show this morning: The GOP plan is to keep Franken out for his entire term so that Coleman can run against him in the next senatorial election on the grounds that Franken was a do-nothing senator.
June 2, 2009 12:39 PM | Reply | Permalink
Seeing I live in Minnesota and had the time, I should have headed to the Capitol yesterday to digest this bit of history.
Friedburg is out of his element (I wanted to say "clown" but I'll give him the benefit of the doubt). This is not a case for a white-collar criminal defense attorney. If Coleman wanted soaring rhetoric, he should have tried to re-animate the late Raymond Burr to provide some Perry Mason courtroom heroics (but then again, Burr was supposedly gay, so that wouldn't have worked in today's Republican party).
To those who asked, judges face re-election in Minnesota after their initial appointment (in fact, Alan Page was elected to the bench), so there may be some light treading--and rightfully so--on the part of the court due to that fact. Minnesotans are clearly in the camp of getting this over with and seating Franken and the noise machine is on stand-by should be court side with Coleman.
June 2, 2009 1:21 PM | Reply | Permalink
Is there any question remaining that our entire election system needs a serious overhaul?
From public campaign financing to banning DREs to banning proprietary private software for voting machines, there's a lot that needs to be done so there can NEVER be a Bush v. Gore or Coleman v. Franken again.
The best way to get the information you need to clean up our election process is to go to http://www.bradblog.com/ and http://www.votersunite.org/.
June 2, 2009 2:59 PM | Reply | Permalink