Norm Coleman’s lawyers just had a very awkward moment in court, in their attempt to prove that absentee ballots were double-counted — it turns out they’ve failed to share evidence with the Franken camp, involving a key witness.
The Coleman camp called Pamela Howell, a Republican election worker in Minneapolis, who said she heard another election judge exclaim that they had forgotten to properly label duplicates of absentee ballots that had been too damaged for the machines to count. She also said she did not recall whether they had made a note of this in the precinct incident logs.
Franken lawyer David Lillehaug then got up, setting out to impugn Howell as an unreliable, partisan witness. She admitted that she called up Coleman’s legal team during the recount, informing them of the problem. Lillehaug then asked her if she’d spoken to the lawyers before her testimony today. “Not today,” she said. He then asked if she ever spoke to them about her testimony. Yes, she did.
It was then revealed that several weeks ago she made notes on her computer, taking down the information she would need to know for her testimony. She gave a copy to the Coleman side — and the Franken camp had never received it.
(By the way, this exchange included a fun bit where Lillehaug asked if her notes had a file name, and she said no. After some more direct questions, she said it was saved on her machine under the name “testimony.”)
There then followed a contentious sidebar, after which Judge Elizabeth Hayden confirmed with lead Coleman lawyer Joe Friedberg that he would be willing to serve a copy to Franken. They then went into a brief recess.When they came back, Lillehaug moved that Howell’s entire testimony be struck. “The prejudice to contestee is that we are in the middle of a trial,” Lillehaug said. “And it’s clear that counsel for the contestant have had this document, have failed to disclose it, and in the middle of testimony we learn about it.”
Friedberg responded: “The issue of prejudice is ridiculous. Any accomplished trial lawyer could cross-examine off this page with five minutes of preparation.”
Lillehaug then asked Howell if she’d brought a print-out of her notes with her today. She said no. He then asked if she had a copy with her.
“Not anymore” she replied.
It turned out that during the break, while Lillehaug was looking at the document for the very first time, Friedberg approached her and showed her his copy.
Lillehaug then said this was yet another reason to strike her testimony — she was coached during the recess.
The judges asked for Howell to leave the witness stand but to stay in the court building, until they rule on this, and for Friedberg to call his next witness.