Like a damaged ballot that won't go through a tabulation machine, witness Pamela Howell keeps getting spit out at the U.S. Senate recount trial.
Tossed from the case on Wednesday and reinstated on Thursday, the Republican election official called by Norm Coleman was removed from the stand yet again Friday as Al Franken's lawyers discovered more undisclosed documents related to her court appearance.
Calling it "an innocent mistake," Coleman attorney Joe Friedberg said he hadn't been aware that e-mail messages were traded between Howell and another Coleman attorney and assured the three-judge panel there was nothing left to divulge.
But Franken attorney David Lillehaug asked the judges to strike not only Howell's testimony but the Coleman claim for which Howell was called to testify -- the possibility that double-counting in Minneapolis may have boosted Franken's votes.
The judges said they would rule by Monday whether to bring back Howell one more time before the Coleman lawyers wrap up their case, expected early next week.
Howell's latest disappearing act cleared the way Friday for lawyers' arguments on other motions, including Coleman's sweeping request that the judges cancel any of 286,000 absentee ballots already counted that don't measure up to the standards the judges spelled out two weeks ago for accepting ballots.
And an impassioned Duluth city attorney challenged Franken's subpoena requiring City Clerk Jeff Cox to appear at the trial, saying it's unreasonable for Cox to make the trip to St. Paul unless he and the city are compensated $1,151 for work time and expenses.
The Franken team had offered Cox the statutory minimum of $105 for the 280-mile round trip.
A brief return
Howell, who served as a GOP table judge on Election Day in south Minneapolis, returned to court Friday after the judges reconsidered their ruling dismissing her from the trial. They decided that the Coleman team's failure to provide Franken's side with her written statement "was inadvertent and not in bad faith."
No sooner had she settled into the witness chair, however, than she found herself in the middle of the same controversy that had her ejected Wednesday.
Lillehaug, just starting his questioning, asked her whether Coleman's lawyers had shown her any kind of working papers. "E-mail," she replied.
"They e-mailed you something?" he asked. "Yes," she said.
"Your honor, may we approach the bench?" Lillehaug said, turning to the judges.
It developed that after Howell notified the Coleman team in late December that she had heard another judge say duplicate ballots had been fed into a vote machine on Election Day without being labeled, Coleman lawyers Matt Haapoja and Tony Trimble had exchanged several e-mail messages. They concerned the legal team's "strategic litigation decision" to delay having her file an affidavit and her uneasiness over testifying.
Lillehaug said the undisclosed exchange should exclude Howell's testimony and Coleman's claim.
"It is clear that her testimony was the linchpin for the Coleman original-and-duplicate ballots claim," Lillehaug said. "It turns out that linchpin has been tainted, corroded, for failure to produce evidence."
Friedberg agreed the e-mails should have been disclosed, but added: "I don't think any of them go to the substance of her testimony. They're free to cross-examine her about anything they want."
The Coleman motion to cancel already-counted absentee ballots that don't meet the standards recently laid out by the judges was argued by attorney James Langdon, who said those standards must be applied retroactively to ensure that all votes were legally cast. "The law is the law is the law," he said.
"How can we undo something once these votes have been cast and counted?" Judge Kurt Marben asked.
Langdon said one remedy would be to reduce vote tallies precinct by precinct, in proportion to the votes cast for the competing candidates there. But he said the Coleman camp would prefer the court to lift its Feb. 13 order that he said created the problem, and he acknowledged it would be practically impossible to separate absentee ballots from those cast on Election Day.
Franken lawyer Marc Elias said the Coleman motion was so "extraordinary" that it left him fumbling for the right words to oppose it. What Coleman seemed to be asking for, he said, was an "administrative audit review of every ballot cast."
"They don't have a remedy," Elias said. "Instead, they wish to simply cast doubt on this process ... at the conclusion of their case."
On the Duluth bid for better compensation, Deputy City Attorney Alison Lutterman argued that the city wasn't party to the trial and that Cox worked for "a city suffering a financial crisis. ... There are empty desks all over City Hall." Duluth can't afford to lose city workers for several days, she said, which was why they were asking Franken for $60 an hour for Cox's services billed on a 24-hour basis, with a minimum advance of $1,000.
Franken attorney Kevin Hamilton responded that state law doesn't provide for compensation above statutory rates. Cox is the only witness who had requested additional payment, Hamilton said.
"It may well be inconvenient for Mr. Cox to come here," he said, but that was one of the requirements of his job as the city's election director.
Deputy Secretary of State Jim Gelbmann, who was in court to back Lutterman, said that local jurisdictions all over the state had borne much of the cost of the recount.
"We understand the financial burden," he said.
Kevin Duchschere • 651-292-0164