Coleman-Franken trial: Day 23 offers entertainment – inside and outside the courtroom

There was drama in the courtroom. There was theater outside it.

There were angry judges. There was machete-like cross examination. There was a witness whose testimony went poof.

There was a sprawling Norm Coleman-backed exhibit in the marbled corridors of the third floor of Minnesota Judicial Center.  Hundreds of absentee ballots and applications were pasted to poster boards and rested on easels or along the walls outside of Courtroom 300.

It had the feel of a junior high school science fair.

In neat, brief slices, Day 23 of the Al Franken-Coleman trial provided great entertainment. But it was also a day of fits and starts, repeated recesses and private sidebars at the increasingly impatient bench of Judges Elizabeth Hayden, Kurt Marben and Denise Reilly.

Ooooops

A funny thing happened on Coleman’s way to proving that absentee ballots were double-counted in Minneapolis.

But, when it was over, Coleman’s lawyers weren’t laughing.

Blushing might be a better description. Or staring at the feet in which they had just shot themselves.

When it was over, Coleman legal spokesman Ben Ginsberg said he wasn’t embarrassed by what occurred. Rather he was impressed by the vigor of Al Franken’s legal team to block some testimony.

Still, it seemed en route to trying to score big with veteran elections judge and witness Pamela Howell, Coleman’s lawyers violated rules and really ticked off the judges in this marathon election contest.

And, in case you haven’t noticed, it’s not like the judges have been favoring Coleman’s side so far.  In fact, Coleman’s lawyers might be 0-for-February on key rulings.

Here’s what happened.

The Coleman side called Howell, a self-described Republican election judge, to explain how in the south Minneapolis precinct she was supervising, there was a glitch with duplicate ballots.

It happens that sometimes original absentee ballots get torn or bent or smudged or can’t find their way through the voting machines.

So, those ballots that can’t be tabulated are set aside and duplicated by election judges; the judges will fill out a new ballot just like the old ballot and they’re supposed to separate and mark the originals and duplicates. No one is supposed to count both of the ballots.

Howell, a judge for 32 years, said on Election Night there were two teams of judges working with duplicate ballots in her precinct.

The team that she wasn’t on went to put ballots through the voting machine first, Howell said.

According to Howell, as the other group was tabulating the ballots, another judge exclaimed, “Oh no! We forgot to label the ballots!”

“Thoughts ran through my head as to what can we do to retrieve and label,” she said told Coleman lawyer Joe Friedberg. “At that point they were mixed up with the others...There was no way that we could see to fix it.”

But Howell didn’t do anything immediately. According to her testimony, she only brought this incident to people’s attention during the recount weeks later. Among the people she spoke with were some from the Coleman campaign.

OK, good story. Sounds reasonable. Perhaps.

But under cross examination from Franken lawyer David Lillehaug, things got contentious, dramatic and, ultimately, turned on its head.

First, Lillehaug repeatedly tried to show she was a Republican, she had contact with Coleman’s campaign and that she couldn’t clearly identify some of the people she said she’d contacted about the error.

But, as it seemed as if he were winding down, Lillehaug elicited from Howell that she had reduced her story to writing and she gave a copy to the Coleman legal team.

What?

The Franken team requested in early January that Coleman’s lawyers turn over any supportive evidence, any documents, affidavits, correspondences, whatevers.

Soon Lillehaug told the judges that Howell’s entire testimony should be thrown out.

“Counsel for the contestant have had this document, have failed to disclose it, and in the middle of testimony we learn about it,” Lillehaug said

Friedberg called such a drastic action “ridiculous.”

But it was further revealed that Howell was given a copy of her written anecdote by the Coleman legal team during a recess, presumably to aid her in her ongoing testimony.

After a recess, there was stern exchange from Judge Hayden with another Coleman lawyer, Tony Trimble.

Trimble acknowledged a “slight oversight,” and that if the Coleman side didn’t provide the written document to the Franken team it wasn’t intentionally.

Hayden noted that Howell had been a standby witness for two days. Why couldn’t the Coleman side have provided the document to Franken during that period, she wondered?

After yet another brief recess, minutes later, Hayden said from the bench, as if a high school principal out of central casting: “The witness is excused and her testimony will be stricken.”

Howell’s entire story was now rendered non-existent. Coleman’s good shot at showing double-counting in Minneapolis was gone.

A calm but happy Elias said: “I would not characterize it negatively at all. I take Mr. Trimble at his word....Nevertheless, we’re in the middle of a trial where you have a witness who is on the stand where statements from her have not been turned over pursuant to discovery.”

Countered Ginsberg, denying embarrassment or shenanigans, said: “That Mr. Franken’s lawyers tried so hard to suppress the testimony from coming in is what I think is the most remarkable of all that.”

But the Franken side won again. It’s happening a lot in Courtroom 300.

Show continues

But just because the gavel bangs and the judges turn and move behind the curtain and the court’s day is finished, that doesn’t mean the show ends at the Judicial Center.

Today, it was just beginning.

Reporters were greeted by six empty easels.

When Elias was finished with his daily briefing, noticing the easels, he said: “I wish I could stay to see this. Because there are not one, not two, not even three, four or five, there are six easels. So this will be good... You’re about to see the Ben show.”

And Ginsberg delivered. The easels were placed photocentric-ly behind him, so the various TV cameras got the intended visuals.

Even more, to his left, on both sides of the marble staircase with the black wrought iron railings, were dozens of poster boards.

His message is one he’s been pounding away at for more than a week as he’s criticized the judges for their “Friday the 13^th ruling.”

There are more than 300 ballots that were counted in St. Louis County on Election Night that are the same as ballots that the Hayden-Marben-Reilly trio have ruled “illegal” during this case.

Thus, votes included in the final recount tally -- with Franken ahead by 225 votes - wouldn’t necessarily be legal votes today.

He’s caught the judges in what he views as a contradiction, and like a dachshund on a mailman’s leg, Ginsberg won’t let go.

Today, Ginsberg outdid himself, with the help of Coleman staffer Michael Kodada, who acknowledged he once did win a science fair medal back in Montgomery, Minn.

Poster boards galore illustrated Ginsberg’s assertion.

“It’s a massive number of votes that are clearly illegal,” Ginsberg charged, looking towards the easels.

There were copies, acquired by Coleman’s team, of ballots and envelops and ballots applications.

Now, the judges have already noted in an opinion that what happened before the contest began is irrelevant.  But Ginsberg dies hard.

And he says the judges can’t be living in an “unparallel universe” - barring some votes now that were once accepted. He says if they do, ultimately, they can’t certify this election.

“This is but the tip of the iceberg,” he said, easels behind him. “The court has now created muddle of its own making and it needs to sort it out... If they end up certifying these ballots, it is a fatal muddle.”

Some were odd. Many seemed to have similar hand writing. One had just “X” in every space for the areas in which a voter was to have filled out his or her address or signature.

Why St. Louis County? That’s because, Ginsberg said, the elections official from that county that Franken won handily will be the first witness called by Franken’s side when it becomes its turn to put up witnesses, probably early next week.

That will set up more drama, no doubt. More theater, too.

But somehow, as Week Five grinds to its completion, it feels as if we ain’t seen nothing yet.

Jay Weiner can be reached at jweiner [at] minnpost [dot] com.