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The Bright Shiny Object Defense

dotwiththefoilball.jpg
 
Christy's busy at the conference in DC today, so the goddesses are letting me go skinny dipping in the Lake at will. The water is cold, but bracing!  For those brave souls who so nobly waded through the refresher course on Greymail, CIPA and the Federal Rules of Evidence in the hopes that I would share some good dish with you, here it comes, enjoy!
 
When last we left our intrepid Judge Walton he had identified nine, count 'em nine subject areas which Libby: 

"contends occupied his time and focus of attention during the relevant time periods. These nine topic areas are (1) threatened attacks on America and American interests by Al Qaeda, Hezbollah, and other terrorist groups; (2) enhancing the United States defenses for Homeland Security; (3) nuclear proliferation by Pakistani scientist A.Q. Kahn and efforts by the United States to stop his activities; (4) the development of nuclear weapons by North Korea; (5) Iran's development of nuclear weapons, its arrest and potential harboring of Al Qaeda members, and its involvement in Iraq; (6) the proper size and role of the Iraqi military or security forces in the months following the fall of Saddam Hussein's regime and the proper composition of the governing entity in Iraq; (7) the Israeli-Palestine relationship, including the emergence of Mahmoud Abbas (Abu Mazen) as an alternative to Yassar Arafat and the threat Hamas posed to peace and security; (8) a tense diplomatic crisis that arose during the first half of July 2003 resulting from the arrest of Turkish soldiers in Iraq by the United States military; (9) the unrest in Liberia in June and July 2003, culminating in the ousting of President Charles Taylor from office in early July 2003, the danger to the United States Embassy and its occupants in Monrovia, Liberia, and the United States' role in protecting civilians caught in the middle of the conflict in Liberia.

Judge Walton goes on to laboriously discuss each and every one of those categories. Me, I'm not as brave, so let me give you the high points. 
 
With respect to category 1, terrorist attacks, the court found that ole' Scooter wanted to fill up the jury's attention with references to obscure groups and individuals who are not exactly household names like Al Qaeda or Hezbollah and that every mention of these non-entities would necessitate a digression to explain who in the hell they were.
 
Translation–don't worry about whether Scooter lied to the FBI, no! no! look at the bright shiny terrorist over here!!
 
Team Fitz did not object to the nine topic areas the defense wanted to introduce. The good guys merely objected to the level of minutia and unnecessary inclusion of classified information in the narratives. The court concluded that much of this information should be redacted under Rule 403 of the Federal Rules of Evidence because such information is "irrelevant or its introduction would create 'unfair prejudice, confus[e]…the issues, or mislead[] the jury, or [cause]…undue delay, waste of time, or [result in the] needless presentation of cumulative evidence."
 
The section about Homeland Security was ruled to be largely inadmissible, but this section of the decision is heavily redacted and all we know is that "The defendant will be adequately served by the jury being made aware that he was concerned about the shortage."  OK, I'll bite. Shortage of what?  Damn!! I just got distracted by a bright shiny object. I don't care what shortage, I care if Irving lied to the FBI or Grand Jury!!  See how this trick works?
 
Topics 3, 4, and 5 (A/K/A the nuclear topics) are also redacted in such way, that I can't tell what's what, but the judge thinks it's relevant to the defense.  Topic 6 (proper role of Iraqi military and security forces) the court limits to activities related in time to the dates of Libby's interviews with the FBI and/or Grand Jury testimony.  Topics 7, 8 and 9 were all ruled relevant.
 
So, if I am on Team Fitz, and I have gone to all the trouble and self discipline of limiting my charges to perjury and obstruction of justice by Libby in the face of the cornucopia of outlandish behavior by way too many folks in Bushco, just so I could keep the jury's attention focused on actual crimes instead of tabloidish scandal, well. . . I'm not gonna be too thrilled to hear that the judge thinks lots and lots of bright shiny objects should be introduced in front of the jury. All this "Be afraid, be very, very afraid!. . .  Who cares if Scooter outed a covert agent, he was worried about nukes. Nukes! I tell you!!!"  Sheesh.  Well, all I can say is no wonder Fitz is/was considering an appeal.
 
Last item for those of you counting down the days to the beginning of the trial on January 15th. If Fitz goes forward with the appeal, the trial will be delayed. I don't know if that realization fueled any part of the decision Walton made today. I think it is more likely that Team Fitz dug deep and came up with substitutions that no person of good faith and honesty could deny were fair and adequate and Walton saw them for the honest, good faith product they are likely to be.
 
As per usual, I stand in awe of the really straightforward, honest and thoughtful job being done on behalf of the American people by Team Fitz.  They do it by being honest and willing to compromise in good faith. No tricks, no technicalities that obscure the issues, just an honest search for the truth. As a lawyer, I can appreciate the amount and quality of work turned out by these underpaid part time professionals who have been put through their paces for months by a much bigger much more well endowed (at least with money and resources) defense team. As an American and a patriot, I am grateful that Team Fitz is proving by dint of dogged work, that the system CAN work, if you just plug away at it.
 
When the time comes for the standing ovation, I will be the first to clap.  Maybe I'll just start clapping now.
 
Clap
 
clap clap
 
clap clap clap
 
clap clap clap clap. . .
 
(Exit Looseheadprop clapping as hard and fast as she can!)
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looseheadprop

looseheadprop

In rugby, the looseheadprop is the player in the front row of the scrum, who has the ability to collapse the scrum, pretty much at will and without the referee knowing who did it.
While this can give the LHP's team a great tactical advantage, it also exposes scrum players from both teams to the dangers of catastrophic spinal cord injury.
Consequently, playing this position makes you understand your responsibility to put doing the right thing ahead of winning, and to think beyond your own wants and desires. It also makes you very law and order oriented.

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