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Coleman-Franken trial: Week Two daily routine mixes judicial mysteries with the drip-drip-drip of fascinating tedium

3 judge panel
AP Photo/Richard Sennott
The question of the week: What are the judges — from left, Denise Reilly, Kurt Marben and Elizabeth Hayden — really thinking?

Blood-red rugs. Stained-oak trim from the peanut gallery benches to the ceiling. Buttercup light fixtures on the walls. A regal setting.

Courtroom 300, Minnesota Judicial Center, with the State Capitol out the door to the north and west.

It’s Day 10 — the conclusion of Week Two of the most important trial under way in Minnesota and, perhaps, the most meaningful political trial in state history.

And it’s another day dipped in fascinating tedium and mystery.

There, in the three, brown high-backed leather chairs, behind the tall oak desk known as the judges’ bench, are the three biggest mysteries.

Elizabeth Hayden, Kurt Marben and Denise Reilly.

“The Three-Judge Panel.” We know their one-dimensional bios.

But what on Earth are they thinking?

We know so little about them
They diligently take notes and, even, sometimes say a word or two.

“Which ballot are we on?” one will ask.

“I have a question,” another will state.

“Ms. Smith, they’re not part of the February 5th letter, are they?” the third will ask. “Thank you.”

“We’re going to take our afternoon break now,” each will say on their rotating days as presiding judge.

They are the final arbiters and, at the end of this razor-thin recount trial, will be the Great Scorers.

But entertaining? Revealing? Hand-tippers?


The “panel” is overseeing a theater of tedium, of Norm Coleman lawyer Joe Friedberg tirelessly reading the names of voters to county auditors and the auditors explaining why ballots were rejected or accepted, about the inner workings of secrecy envelopes and the beauty of spreadsheets.

Then, either David Lillehaug or Kevin Hamilton, Franken’s laserlike lawyers, cross-examine the witnesses, trying to show that some ballots were rejected because they were in violation of state law. This is Coleman’s case, remember. Franken has to prove nothing.

That goes on for six hours a day.

Drip, drip, drip.

Where are they headed?
At the end of Week One, we wondered when the judges would narrow the universe of absentee ballots to re-examine.
They seemed a bit judicially constipated. They didn’t seem to want to put their six feet down at a time when every observer seemed to be screaming (to him/herself): “Yo, judges, get this thing under control! Will ya’, please!”

Then, earlier this week, they delivered, coming down smack dab in the middle: Coleman’s side wanted about 11,000 ballots examined; Franken’s side wanted that restricted to about 650.

The Panel’s Magic Number: 4,797.

They sent their message in a straightforward order. No trumpets.

Exactly how this trial would include an examination of said ballots was unclear. But then the most revealing words to come out of the mouth of any of the judges were uttered Wednesday from Judge Reilly, who usually works in Hennepin County.

“The panel is going to make sure that every legally cast and wrongfully rejected ballot is opened and counted,” she said.

The world listened, stunned at such a declaration from an otherwise reticent panel.

Like military action in which American GIs go house to house in search of bad guys, the Recount Trial slid into a ballot-by-ballot affair this week. Slow, careful, dangerous.

These judges — whatever they are thinking — are not going to do anything that will make it look as if they are pushing or pulling, sculpting or slashing.

As Week Two ends, it’s clear that they (and we) are in for the long haul.

Which is amazing, really. Judge Marben lives in Thief River Falls.

Or used to.

He’s been residing in a hotel the past two weeks, 300 miles from home, going back to Pennington County only after the trial ends Fridays.

Judge Hayden from St. Cloud stays in the Twin Cities, too.

In open court, Reilly, who lives in the Minneapolis suburbs, has disclosed the most. And that’s not much.

She regularly grows politely impatient with Coleman lawyer Joe Friedberg, who sometimes begins questions without offering a document into evidence.

“Has that been offered into evidence, Mr. Friedberg?” she’ll say, sort of like a third-grade teacher wondering if Little Joey forgot to turn in his homework again.

This morning, an exhibit received earlier this week couldn’t be found by any of the judges. They have blue three-ring binders and white three-ring binders on the counter before them, and others behind them.

Thousands of documents have been submitted in this case so far.

All three of them got out of their chairs and began rummaging through file folders and piles. It was the most action this court has seen since the janitor vacuumed a few days ago.

Suddenly, amid the silence of the inactive courtroom, came a cry.

“I found it!” Reilly shrieked — and smiled broadly.

Later, in the final moments of today’s afternoon session, Reilly actually told a joke.

Friedberg and Hamilton were finished grilling Anoka County Auditor Rachel Smith for the second straight day. It was 4:05 p.m. Fatigue embraced the room. Everything was drooping.

“Mr. Friedberg, call your next witness,” Reilly said sternly.

Friedberg tentatively rose. Everyone groaned (to themselves).

“Just kidding,” Reilly said delightfully, and the lawyers and handful of spectators all laughed (and, practically, high-fived).

We saw one of the Great Scorers in a non-judgely way. Fun, fun, fun.

Hayden gets style points for wearing red-framed reading glasses. Once today, her eyes behind them seemed to wander away from her notetaking or watching the witness. Once.

Marben has asked itty-bitty detail questions, suggesting he’s following extremely closely. He’ll grimace every once in a while.

Once today, he seemed to gaze at the clock at the back of the courtroom. The poor guy wants to race home to Thief River Falls. But, then, he put his dark-haired head down and continued to write down whatever it is he is always writing down.

They are powerful — but not powerful enough to stop the tedium that goes with the examination of hundreds of ballots constantly.

“Exhibit F-1760 …George Alan Schultz … Lora Lee Benson … Exhibit C-333 … Elizabeth Schroeder …”

The exhibits and the names run into each other. They go on and on. There are 15-minute breaks. There is a lunch break.

At the midday recess, spokesmen for Franken and Coleman hold court with the dwindling media corps. It’s one big happy lawyer-media-campaign-staff group hug. Every noon. Every 4:30, too, at day’s end.

But not the judges. They are distant. They are over there. They are enigmas.

Votes not counted
Amid the brutal repetition, there are head-scratching and troublesome matters of democracy. Every day.

Votes are misplaced. Absentee ballot voters aren’t registered. Ballots aren’t properly dated. Soldiers fighting to preserve democracy vote, but don’t apply ahead of time, and their votes are rejected. Forms aren’t notarized. Some counties open absentee ballots to check for registration cards; others don’t. Senior citizens move to nursing homes, vote in the health care facilities, but mark their residence as their real homes. Their votes are called into question.

Maybe that’s what “Your Honors” have realized. If they try to condense this thing, they won’t know the scope of the problem or the relative accuracy of this election.

Or maybe they feel — as much as the candidates themselves — the weight of history and the burden of the outcome.

To follow each ballot and each reason for rejection is a terribly difficult task. At some point — far into the future, it now seems — someone will need to decide which votes will count, which votes were lawful.

Those someones are Hayden, Marben and Reilly.

At day’s end, they hinted they’re moving a bit. They told the lawyers they want briefs from them soon on the legal issues related to whether nonregistered voters’ absentee ballots should count. It sounds as if they’re fine-tuning their thinking.

Which brings us back to that question: “What are they really thinking?”

Are Marben and Hayden wondering about traffic on I-94 going home? Will the sun be setting in their windshields? Is Reilly thinking about the nasty commute out to Orono?

Or are they thinking collectively, thinking as “The Panel” with one single-minded task?

With Week Three, that task seems to be: “Don’t make a mistake.”

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

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Comments (1)

  1. Submitted by Alyce Bowers on 02/08/2009 - 03:54 pm.

    Oh my goodness. This is like the drip, drip, drip of water torture. It would be one thing if a decision was being made as the ballots are introduced and witnesses questioned. But it seems as if nothing happens except to move on to the next ballot and witnes. If a decision were made, the process would be far too long, but would seem to EVENTUALLY be moving toward resolution.

    But at this rate, after 4,700 ballots are entered as evidence, will they still all have to be gone over again by these judges for a decison? Or what? And then it is Franken’s turn. And he can introduce 700+ ballots and the beat goes on.


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