Call it the case of the turnstile witness.
Minneapolis poll worker Pamela Howell was in, then out, then in, now out again, at least for today.
The three-judge panel stopped Howell from testifying Wednesday after she revealed that she shared information about her testimony with Coleman's lawyers, but not Franken's.
Trial rules generally require each side to share information with the other unless it's communication between a lawyer and a client or a lawyer's private notes. The rules are there to give each side a fair shot at cross-examining each other's witnesses.
On Thursday, the panel reconsidered and allowed Howell to testify, ruling that Coleman's lawyers mistake was inadvertent and not in bad faith. But this morning, when Howell took the stand under cross-examination, she revealed there was more information Franken's lawyers didn't know about--a series of emails between her and one of Coleman's attorneys that Franken attorney David Lillehaug said was no mistake.
"It's also clear from these emails that a very conscious decision was made by counsel not to disclose Ms. Howell's statement," Lillehaug said, "and the purpose of that 'strategic litigation decision' was to 'avoid tying you down to any particular testimony and to avoid having to disclose your name or statement.'"
Coleman attorney Joe Friedberg told the court that "clearly the emails should have been disclosed" but that the e-mails were "blown a little bit out of proportion." He said the emails were from a young lawyer who'd never tried a case.
"This is a mistake," Friedberg said. "It's an innocent mistake but by the same token, they get Ms. Howell as she is and I don't think there's anything that's in here that they can use that becomes that crucial in this case."
The court said it would rule by late today or early Monday on Franken's request to strike Howell's testimony and the motion to throw out the double-counting claim.
Because Howell's testimony was cut short, the panel got an early start on hearing arguments on other issues, including a request by Coleman's team to recount more than 280,000 absentee ballots cast in the election.
Two weeks ago, the panel ruled out considering a dozen of 19 separate categories of rejected ballots. Coleman attorney Jim Langdon said now the court should consider whether votes included in the statewide recount are now illegal under the panel's ruling.
"Our view is that the court has ruled what the law is...before an absentee ballot can be considered a legally-cast vote and that the law is the law is the law," Langdon said.
But Judge Kurt Marben cited to Langdon a Minnesota Supreme Court ruling from 1975 that said a vote can't be challenged after it's already in the ballot box.
"How can we undo something once these ballots have been cast and counted?" Marben said. "I mean we're not going to be able to tie particular ballots to absentee envelopes."
Landgon told Marben that he understood, but also that the fact that a remedy is challenging and perhaps difficult doesn't mean that it can't be done.
Representing Al Franken's side, attorney Marc Elias told the panel there is no remedy. He said Coleman's lawyers chose which ballots to contest and must live with those choices. Elias said Coleman's side could have argued that all absentee ballots be reviewed from day one, but did not.
"To drop this on the court and say, 'we'd like this court to apply its order to all these ballots' ... I think this is extraordinary and it's not something that should be granted," Elias said.
The court also took this issue under advisement and could rule at any time.