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Who Will Deliver for Fitz?

Wigmore described cross-examination as the "greatest legal invention ever invented for the discovery of truth.” (5 J. Wigmore, Evidence §1367 (J. Chadbourn rev. 1974.) Put another way, it's a great tool for ferreting out untruths in the courtroom.

It's Fitzgerald's job in the Libby case to prove beyond a reasonable doubt that Scooter Libby lied to federal agents and the grand jury and obstructed justice. It's the defense's job to test that proof.

Patrick Fitzgerald has placed a lot of faith in Judy Miller and Matthew Cooper and their less than perfect memories and note-taking skills. The defense chipped away at both today. There were no Perry Mason moments, but neither came across as 100% sure of what Libby told them.

Judy Miller did better today than she did yesterday, but the defense got her to acknowledge that she couldn't be 100% certain she first heard of Valerie Plame Wilson from Scooter Libby. Cooper acknowledged his notes don't back up his current memory that Libby responded with something to the effect of " I heard that too" when he asked him whether Joseph Wilson's wife had a role in selecting him for the Niger trip. Not only wasn't the statement in his notes, it wasn't in the memo he sent in to Time following his conversations with Libby.

It's a good thing for Fitzgerald that reasonable doubt doesn't mean 100% certainty. But I have a queasy feeling that unless Libby takes the stand and is not credible in his denials, neither Miller nor Cooper's testimony will bring it home for Fitz.

That leaves Ari Fleischer and Tim Russert. Former Time reporter John Dickerson disputes Ari's version. although the jury may not hear from him, unless he's the mystery witness discussed at the end of court today — see's Marcy's live-blogging for more on the mystery witness.

In my mind, this is all going to hang on Libby's testimony. But, will we hear from him? Ted Wells was smart enough in opening not to promise the jury he would testify. If every witness has holes in their memory, does he need to put Libby on the stand, or is his better move to rest without Libby's testimony, telling the jury there's no need to put on a defense because the Government hasn't proved its case? Does he need to call Cheney? Does he need to call any witnesses at all?

The jails are filled with people who thought if they could only tell their story to the jury, the jury would see it their way. Ask Bernie Ebbers in the WorldComm case, who is now serving a 25 year sentence or Enron's Jeff Skilling, also doing a double digit sentence.

If Libby testifies, he is most likely to be the witness that delivers for Fitz, not Ari, Miller or Cooper.

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Jeralyn Merritt

Jeralyn Merritt

Jeralyn is a Denver-based criminal defense attorney. She writes daily at TalkLeft: the Politics of Crime .