The Minnesota election court just decided to cut Norm Coleman a serious break, reversing their decision yesterday to strike the testimony of a key witness in Coleman’s attempt to prove double-counting of votes, after the Coleman camp failed to share evidence with the Franken side.
The court’s memorandum explains why they took this severe step to begin with — Coleman’s repeated failures in the past to fully share evidence in a timely manner:
The Court recognizes that striking testimony is a severe sanction but notes that this trial has been underway for five weeks and that the parties have been repeatedly instructed of the need to supplement discovery responses. The Court believes this sanction was within its discretion in light of Contestants’ repeated failures to adhere to their discovery obligations under the Minnesota Rules of Civil Procedure.
In plain English: The court took an extraordinary step because they were very, very angry.
But on the other hand:
The Court has the discretion to exclude testimony, but “the exercise of that discretion should be tempered by an effort to seek a solution short of exclusion that will accommodate the competing interests inherent in the discovery rules and the adjudicative process itself.”
The record reflects that Contestants’ failure to disclose the document was inadvertent and not in bad faith. The Contestee has now had an opportunity to review the document and prepare a proper cross-examination. Contestee will not be substantially prejudiced by permitting Ms. Howell to conclude her testimony.
The judges perhaps realized that Coleman still has a plausible legal claim in this witness — that is, excluding her testimony would give him a potentially successful avenue of appeal.
So Norm just got a break. The court got off his back, and is allowing his witness back on the stand, and her testimony will be in the record. Another thing that will be in the record: The continued cross-examination by the Franken side, who will likely continue their effort to totally discredit her.
