When it was over, it still wasn’t over.
The detailed closing argument for Al Franken by his precise lawyer Kevin Hamilton was complete. The common-sense final argument for Norm Coleman by his folksy lawyer Joe Friedberg was done. A post-trial session in chambers to nail down some final details was finished.
Finally, after seven weeks, Courtroom 300 was empty.
But no one could go home — yet.
They’d been there for 35 days of trial and legal arguments, through 134 witnesses, hundreds of exchanged glances and stares, millions of words and more than 2,000 exhibits in countless three-ring binders that, Hamilton said, “piled up like snowdrifts.”
A historic Minnesota moment
So – and it was really out of character for the always serious judges — they took photos, official, and, to be sure, historic photos. The whole gang. Right there in the Supreme Court courtroom that had been turned into the first fully televised trial in Minnesota history.
Judges Elizabeth Hayden, Kurt Marben and Denise Reilly – robed and standing by their chairs – and the court clerks, the court reporter and the two legal teams standing beneath them, everyone smiling their smiles for the history books. An employee of the state courts system took the photos.
Noting that in 45 years of lawyering, nothing like that had ever happened before, Friedberg, 72, said: “This must have been an epic trial.”
It was, and it ended with closing arguments worth the price of admission, with a jam-packed courtroom – there are only about 60 seats available in the court pews — and with the themes and personalities of the two sides reflected in the content and tone of their final statements.
First, Hamilton for Franken
Hamilton’s hour-long presentation was a tightly wrapped conclusion that mirrored the Franken position from Day One: Most of the 11,000 or so absentee ballots that were rejected were properly rejected; the judges would have to engage in a “breathtaking exercise of judicial power” to overturn Franken’s 225-vote lead in the recount; and no election is perfect, but this one was pretty darn close.
But, mostly, Hamilton’s message and his job were to completely attack the evidence that Coleman’s side presented over a five-week period.
He employed technology today in ways that distinguished the Franken side from the Coleman side throughout the trial, from the way they identified voters and ballots, to the way they conducted their case.
Hamilton, who represented and won the Washington State recount for Gov. Christine Gregoire in 2005, effectively used projected photos, spreadsheets and charts today to supplement his steady stream of data to argue that Coleman failed to prove his case.
Indeed, it was Coleman who brought this election contest and Coleman who must show that he won more legally cast votes than Franken did. But, during the trial, it appears as if Franken may have added about 300 votes to his 225-vote lead.
For example, Hamilton displayed the spreadsheet of voters that Coleman’s lawyers want the judges to count. Hamilton showed – using Coleman’s own data – that, in his view and using standards established last month by the three-judge panel, only six of the 1,359 voters cast legal ballots.
“It’s just a failure of proof,” Hamilton said.
The three judges were attentive to the visual aids. They turned to their left to examine the screen with the information. For moments, they stopped taking notes. Marben’s brow was furrowed. Reilly looked carefully for long periods of time at the screen.
Hamilton went after testimony of Coleman witnesses and besmirched Coleman’s assertion that there was some double-counting of ballots in Minneapolis; a very unbecoming photo of witness Pamela Howell – her eyes almost popping out – was flashed on the screen as he argued that her testimony was tainted.
He condemned Coleman’s side for trying to back out of an agreement – so-called “Rule 9” — to count original ballots in cases where the number of duplicate ballots didn’t match those of originals; that would come in cases in which election judges may have re-written some ballots that couldn’t go through voting machines.
“The law is simply against them,” Hamilton told the judges. Besides, the Coleman side wanted Rule 9 in place when it thought it would win the recount.
“Contestants’ attempt to back out of their agreement … is as cynical as it is groundless,” Hamilton said, in his most stinging critique.
He argued that the missing 132 ballots in Minneapolis clearly once existed, had been lost and should be kept in the recount total.
And Hamilton announced that the Franken side believes it proved 252 more ballots – most likely Franken voters – should be opened and counted.
It was as if Hamilton, whose Seattle firm represents Starbucks and Boeing, were at a bowling alley.
And he was, with perfect form, sliding up to the line, tossing a giant ball down an alley and mowing down – in slow motion – every Coleman claim as if they were pins.
“As the record before this court vividly demonstrates, Al Franken received the highest number of votes in this election,” Hamilton concluded. “Al Franken is Minnesota’s senator-elect. He is entitled to the certificate of election.”
Hamilton never broke a sweat.
Then, Friedberg for Coleman
After a 15-minute break, it was Friedberg’s task to undo Hamilton’s presentation. But he didn’t assault Hamilton’s argument. He took a different path
Exactly a month ago, in the judges’ “Friday the 13th” decision, they had narrowed the scope of which ballots they believed were, by law, legally cast.
Since then, in public and in court, the Coleman side criticized the judges for “changing the rules in the middle of the game.”
Friedberg, with more emotion and volume than Hamilton, basically challenged the judges to change their minds, to rethink how it seems they’ve been thinking the past month or so.
Friedberg prides himself on once being a traveling encyclopedia salesman in his days before becoming one of Minneapolis’ most well-known and respected criminal defense lawyers. And the man, in his striped dark suit and nearly psychedelic tie today, is a marvelous salesman. He is self-effacing. He is charming. He is smart. And he uses common sense as much as legalities in persuading folks. But, normally, he’s got 12 laypeople to hypnotize, not three judges.
He did not use PowerPoints or photos. He didn’t shine data on the screen. Friedberg spoke from handwritten notes on yellow legal paper.
But, mostly, Friedberg encouraged the judges to think outside of their box. A man who is adept at convincing jurors that his client didn’t do it, was in a position today of trying to convince three high-level, judicial “jurors” that his client’s case is being judged by an impossibly high standard.
That was the crux of his argument. It was creative. It was provocative. It was sweeping. But it wasn’t one-tenth as specific as Hamilton’s.
And these judges have been very specific types over the court of this trial.
For one, Friedberg said that the two Supreme Court judges sitting on the State Canvassing Board and approving the Franken recount victory of 225 shouldn’t frighten off these three district court judges from Hennepin, Stearns and Pennington counties.
Apparently, in chambers, one of the judges wondered if they could overrule Supreme Court Justices Eric Magnuson and G. Barry Anderson. Friedberg said that was “simmering below the surface for a while.”
“Can we overrule them?” a judge apparently asked Friedberg.
“There isn’t an overrule situation,” Friedberg told the judges, as if he were their very senior law professor. “This issue was left to you.”
He added on the Minneapolis 132: “What you can’t count in person, you can’t count at all.”
Friedberg’s key issue, though, was his and Coleman’s problem with the judges’ Feb. 13 ruling, in which the judges in a very clear way told both sides which ballots were legal and which weren’t.
It then triggered Coleman’s assertion that the judges’ ruling rendered already-counted votes illegal. And it also forced them to prove every ballot met every standard
“With all due respect, the standard you have set requires proving each statutory element to an absolute certainty,” he said. “That standard doesn’t exist anywhere in Anglo-American jurisprudence. Our job is prove up ballots for counting … But where is it written that we must prove compliance with that statute to a certainty? That’s what you have apparently demanded of us … We take issue with the standard.
This is a civil case. The burden of proof is by a preponderance of the evidence …”
Friedberg went on: “[Franken] has chosen a different path. They have proved the viability of a number of ballots to an absolute certainty where there can be no conceivable question but that most of the ballots they put in issue should be opened and counted. We congratulate them for their dedication to precision and their meeting the standard of moral certainty, that’s a commendable thing … but that standard exists nowhere else in Anglo-American jurisprudence … All we need to prove … is that it is more likely than not that inside the envelope dwells the franchise of a proper voter, more likely than not.”
Due process at issue
He then moved on to questioning if some voters were denied due process because “thousands of illegal ballots are already in the count.” And others, whose ballots were similarly marked, have been ruled illegal by the three-judge panel.
For instance, Minneapolis never checked on whether witnesses to an absentee ballot were registered voters. Carver County did. Now, the judges have ruled only ballots with registered witnesses count.
“This changing standard from one time to another is a substantive due process problem …,” he said.
He moved on to the equal protection issue, long raised by the Coleman side.
Simply put, he said, “Whether you got your vote counted on Election Day varies depending upon where you live.
His main point: The rules were changed after the game was played and “there’s no way to determine who got the most legally cast votes” because illegally cast votes are already part of the tally.
Thus, we saw in two artfully presented one-hour lectures, the two sides of this case.
Franken followed the orders of the judges and found ballots that fit the judges’ standards.
Coleman preferred to view ballots as categories, not individually. Most likely, that’s because there weren’t as many ballots for him to be had. So, he raised standards, not specific ballots.
Afterward, Norm Coleman, who was present for most of the trial while Franken never showed up, was asked if he would appeal if he loses here.
“Let’s deal with this step now,” he said. “There are still a lot of votes to be counted … I’m not looking beyond that right now.”
As for the judges, they will take their time.
There is a feeling among the lawyers that an order could come soon from the panel to begin opening ballots that Franken has proved are legal, and others.
That could come as soon as next week. It will take the secretary of state’s office three or four days to get the ballots from the counties.
But the judges’ major decision – did Coleman prove enough to overturn Franken’s recount victory – that seems to be weeks away.
Which leads to the end. The very end.
After that fuzzy picture-taking, there was still one final legal proceeding. It had to do with evidence that had been in dispute.
The courtroom was empty save for the lawyers, clerks, the judges and some hangers-on.
Franken lawyer David Lillehaug offered boxes and boxes of evidence.
Friedberg, to make the event official, objected.
Hayden looked over her red-framed reading glasses.
“Overruled,” she said, with a slight smile.
“We rest,” said Hamilton.
Bang went the gavel of court clerk Christopher Channing, who added: “All rise, the court is in recess.”
Now, we wait.
Jay Weiner can be reached at jweiner [at] minnpost [dot] com.