Secret Coleman-Lawyer E-Mails Reveal Intentional Hiding Of Witness — Franken Camp Wants Double-Count Claim Thrown Out Completely

February 27, 2009 7:01 a.m.

All hell just broke loose in the Minnesota courtroom, with Al Franken’s lawyers catching Team Coleman in the act of yet more concealing of evidence — and they’ve now made a motion to totally strike the Coleman camp’s claims about double-counting of ballots, which the Coleman camp has hoped to use to subtract over 100 votes from Franken’s lead.

You might remember that on Wednesday, the Coleman team was caught having withheld notes given to them in early January by Pamela Howell, a Republican election worker in Minneapolis. (Note: Minnesota precinct workers are selected by partisan identification, and then buddied up across party lines to keep it running smoothly and honestly.) The court then struck the witness’ testimony, relating to double-counting of votes — but then turned around yesterday and reversed themselves, after the Coleman team said it had been an honest oversight — that there was no bad faith involved.

This morning, Franken lawyer David Lillehaug was restarting his cross-examination of Howell, and inquired as to whether there had been any further communications between herself and Coleman. The answer was yes — and Coleman lawyer Tony Trimble then had to cough up some private e-mails he’d sent to Howell in early January.

“Pam, the legal team and campaign have made a strategic litigation decision to hold off from having you sign and us file your affidavit at this time,” Trimble (or possibly his assistant, Matt Haapoja) wrote on January 6, saying this was being done “to avoid tying you down to any particular testimony and to avoid having to disclose your name and statement.”Trimble assured Howell in the e-mail that she shouldn’t worry — that the campaign would be calling her at a later date and incorporating her into this case, just not at this time, and they were keeping her name private.

Howell wrote to them in late January to seek further clarification — whether she would be coached, how much the Franken camp knew, etc. Trimble answered that there would be no further discussion before testimony, and the Franken camp didn’t know about her statement.

Lillehaug demanded that not only should Howell’s testimony be re-stricken, but that Coleman’s entire claim about double-counting be tossed.

“And it is clear from contestants strategy in this regard that Ms. Howell was their star witness on the issue of original and duplicate ballots,” Lillehaug said. “They picked out one election judge from one precinct — she’s the only election judge they’re presenting on this claim – and then yesterday documents were offered and admitted into evidence based on that precinct and nine other precincts. It is clear that her testimony was the linchpin for the Coleman original and duplicate ballots claim.”

Lillehaug said they should not have to go back to the drawing board to figure out how to cross-examine her, and thus her testimony must be struck, and with it the entire double-counting claim for all precincts.

Lead Coleman attorney Joe Friedberg got up to mount a defense — and totally threw Trimble, Haapoja, and fellow lawyer James Langdon under the bus. He said he’d asked them on Wednesday if there were other things going on, and he didn’t know about it: “I can tell you that if I’d have known these things existed, I would have disclosed them.”

“Mr. Haapoja has never tried a case in his life,” Friedberg said, and he’s sure Haapoja is sitting around thinking he should have disclosed this stuff.

He also said this didn’t damage Howell’s credibility on the subject — and insisted no funny business had happened. “If we look at those things closely, first of all, as opposed to what the e-mail seems to say — we can avoid putting you on our witness list,” Friedberg said. “And when she was subpoenaed the subpoena was disclosed. So we didn’t hide her identity in any way, shape or form.”

After a short recess, Judge Kurt Marben announced that the court was taking this motion under advisement and could potentially rule on it today or Monday. Howell was excused for the day, with no further testimony to be taken at this time. At Lillehaug’s suggestion, and Friedberg’s consent, the court also ordered that neither side’s attorneys should have further contact with her, and that the court will inform her about her future status.

Late Update: An initial version of this post paraphrased a Trimble e-mail as saying there would be no coaching. The exact word in Trimble’s e-mail was “discussion,” in response to Howell’s mail that asked about coaching.

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