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Libby Live: Legal Wrangling over Jury Instructions, One


NOTES: (1) This is not a transcript — It's the blogger's approximation, and no one really knows what that is yet! But I do know you shouldn't quote anything not in quotation marks. (2) I'll timestamp the updates and will update about every 15 minutes, servers willing. The hamsters that run the servers will appreciate it if you don't refresh excessively in the meantime. (3) If you're not having enough fun just reading along the liveblog, consider buying my book on this case.

One more bit of housekeeping. First, if you're in DC tonight, I'll be signing books at Drinking Liberally, from 6:30-9 at Timberlakes . I'd love to meet some of you there so I can thank you for supporting this project personally.

I'd also like to shout out to the real diehards in the media room this morning–the folks from CourtTV and one person from WaPo (and the NPR person just showed up). It looks like some folks are taking off early for the weekend. Oh wait, now we've got some more… It's just we didn't get the memo that it was scheduled at 2:30.

I noticed a curious bit in my earlier post on Libby's proposed theory of defense today. Libby is harping on precisely the words he used in his sonnet, the note he wrote and Cheney endorsed to try to get Scottie to exonerate Libby. 

Mr. Libby further contends that when the investigation began, he was confident that he had not provided any information about Mr. Wilson's wife to Robert Novak, and that he had not disclosed classified information about Mr. Wilson or his wife to any other reporters. Further, Mr. Libby was well aware when he was first interviewed by the FBI and when he testified to the grand jury that the investigators could and likely would talk to the journalists he spoke with concerning Ambassador Wilson and that those journalists would truthfully recount their recollections of the conversations he had with them.

This is what he's got–an attempt to flip his sonnet on its head, to spin it as proof that he was sure he was innocent, rather than proof that he was panicked when all the media attention started focusing on him. Jeralyn said yesterday that she wasn't sure that Fitzgerald had done enough on motive. But this goes to show just how important the whole Scottie exoneration was to Libby in Fall 2003. This tension is probably worth keeping an eye on in today's wranglings.

One of the guys frm the court room just got on the phone (he's alone in the court room) said, "What we should tell the media is that Cheney is coming in today to testify." Funny guy. 

We've got Libby's teams media teams filing in, Fitz and Cline touching base on something.  About 10 journalists in the media room socializing.


Heeeerrrre's Reggie.

Bonamici: To the extent we were able to digest them (jury instructions) WRT elements instruction, govt concerned about summarization of false statements as part of elements instruction. We understand that the precise charge statements will be appended to the back. It was our understanding that the summaries of the false statements would only be provided at preliminary and that the false statements would be read for the final instructions.

Jeffress stands.

Bonamici Is the perjury quoted as well.

Walton: Perjury is. I wouldn't be inclined to read all that, I would say it's going to get lost. I'd give a short statement about that and the jury will have an opportunity to read it.

Bonamici: We're of the view that the charged false statements are the core of the case.

Walton: I was only talking about the perjury.

Bonamici: They're shorter. I do see the distinction. We took from the first instruction that you were struggling with just reading them allowed.

Walton: As far as the false statements are, I thought I had indicated I would summarize what the false statements were.

Jeffress: [I think he says he was under the same understanding as Bonamici, too]

Bonamici: In the seventh circuit, the indictment goes back so it is never the practice to presesnt the false statement in the instructions.

Walton: I'm okay to have those portions of the indictment appended. I have a problem with the entire indictment going back bc there's a lot of stuff in there that should not be submitted to the jury.

Bonamici: That would be acceptable to the govt and would probably solve the problem.

Walton: I'm looking at the false statement instruction. I thought that was everything.

Bonamici: I don't, I don't. Have you figured out what page it's one.

Wells is up. Shows it to her. [Guess we have nice Ted today]


Now both Fitz and Wells are trying to help her find it. She giggles. It's a funny picture, Bonamici, who looks to be about 5'7", with the 6'2" lawyers on each side of her. She normally looks very business like, but now they look all chummy and nice.

Fitz: The indictment says on or about July 10. [referring to the Russert conversation]

Bonamici: It is on our about either way.

Fitz: Indictment says on or about July 10.

Now Jeffress is up, standing between Bonamici and Fitzgerald. Now he sits down.

Fitz: I believe count two, it says in the indictment. 

Bonamici: Sorry judge, we really did try hard to do this.

Walton looks on impassively.

Fitz; I will now remove the draft indictment from my binder. I have been carrying this around for all this time.

Bonamici: What we're focused on is the perjury. Subject to re-checking it tonight, our recollection that the false statement restates the alleged false statement. On or about July 10.

Walton: On or about July 10.

Jeffress: While we're on that page, we'd ask that you say "falsely told the FBI" with the dates. The date of the offense if October 14 and November 26.

Bonamici: We don't object to that.

Walton: I'm not getting this.

Jeffress; we want to insert on October 14 and November 26. 

[geez this is some welcome comic relief from the contentiousness of the trial. So the lawyers are becoming friends again] 

Walton October 23, you said?

Jeffress: No, October 14 or November 26.

Walton: Same thing regarding the other count.

Jeffress: Same thing.  Also, to make it parallel, it should say, Mr Libby falsely, that would parallel count two.

Bonamici: So the alleged false statements would not be read in the instructions.  Right now you have it in there.

Walton: It would be what would be read to the jury. On count 3, it's the first time I have it. Count four says a portion of his testimony was false. That portion of the GJ testimony which the indictment alleges is false will be provided to you with the portions that are allegedly false underlined. I wouldn't be inclined to read all of that information.

Wells; Your honor, You think we could consider, when you decide how you're going to give it to them, that you have page numbers. What the govt did.

Walon: I can have…no

Wells; Here's the problem and correct me if I'm wrong. What the govt did took a statement from page 10, and page 20, it looks like they're all one thing. If you don't know that, you don't know it's not all one thing.

Walton: That was the one issue I was going to raise about the verdict form. Somehow the jury has to understand what those five statements are.


Fitz: What the govt will do is do an exhibit, take each charged false statement, provide the page numbers so the if the jury wants to see what's ahead or behind.

Walton: Let me query whether that information can be attached to the instructions itself. You bring up a point that I think my clerk told me itself. Generally the transcript itself is not evidence. The transcript is just shown to them to show how accurate the audio is. That'll alleviate one of the instructions I've given you, I've given you standard instructions that rely on the audio. The instruction says that the transcript is not evidence.

Bonamici: The defense did not stipulate to the accuracy of the transcripts.  There's a stipulation that the transcripts are true and accurate prepared to the best of the court reporter's ability.

Walton: if there's a perceived discrepancy, it's the tape that controls. That'll have to be modified to some degree.

Bonamici: that shouldn't be difficult to come to agreement on.

B WRT These are not in particular order, the instruction regarding July 12 conversatoin. We had agreed to it, and suggested some additional lanaguage for the bottom of the instruction. There were a couple of places where the instruction may be confused.

Walton: REgarding the part of the obstruction charge that is no longer in there.

B On page two. It's about this far in. It's in his instructions.

B That aspect of the obstruction charge must be of no further concern to you, it cannot in any way influence your verdict regarding the charges. Because it's such a long sentence it could be heard as meaning that evidence concerning the July 12 conversation cannot influence your verdict. That problem is compounded on the following page, where you say, you may consider the remainder of the conversation. It's intended to refer to the elimination of the charge. when you heard it read, it sounded as though they could only consider the July 12 conversation, and not all three conversations. I suggest the instruction be modified to read, June 23, July 8, and July 12.

Walton: I guess, regarding the runon sentence, I can put a period.

Jeffress, you just omitted. [off mike]

B; I think it has to be clear that they are still in a position to consider all three conversations.

See what I said here about the Judy conversation–it's pertinent.

Walton: has she ever met with Libby at another time? Because we could just use "any other conversation."

Fitz: Goes through their earlier post-9/11 meeting.

Jeffress:  Actually Mr Libby left out a conversatoin in Wyoming when Mr Libby had a cowboy hat on. I don't think it's fair to highlight one particular one.

Walton: My wife is away and my daughter's calling. I'll have to tell her I'll call her back.


Walton: My law clerk suggests "relating to July 12 conversation and not anything else."

Fitz: My problem is it suggests only the July 12 conversation.

Walton: relating to all of Mr Libby's conversations.

B I'd like to add including.

Walton I could probably shorten this and divide it up into two sentences.

B The fact that Mr Libby was charged with obstruction of justice

B I just don't think they, all they've been doing is listening to evidence.

Jeffress up

B Yeah I know, sorry.

B Your law clerk explained that these are separate documents. But I hope you'll be patient where we figure out where we are.  The point is that this. They're not going to have that aspect of the obstruction of justice charge before them, they're not going to remember that he was previously charged with obstructing justice in that matter.

Walton As I look at this I am confused.

B And we all signed off on it.

Walton The first sentence, should that be limited to … [reads it] The way it is now, it says it can't be considered.

B I don't think that was the intent of the language. Here's the lay of the land. THey cannot base their verdict on July 12. The fact that they could have, and can't now, they also can't consider. They can't consider it one way or another. The evidence is something they can consider. They can consider it as evidence. That is all that has happened. Trying to communicate that to lay people is going to be difficult.  We just dismissed that charge.

Walton Because

B Because we agreed that we did not put enough evidence before the jury on this charge. They don't have to find that all teh statements are basis.

Walton Probative value on July 12 conversation?

B Libby's continuing conversations with Miller through July 12. 

Walton What probative value?

Fitz Mr Libby testified under oath that he first disclosed employment of Plame on the 12, thta he did the same thing as he did with Cooper. Obviously that's a false account compared to what the govt contends. If he had told her on June 23, and July 8, this was not new evidence.

Walton It's insufficient as a basis for him being found guilt.

B Alone

Walton: Maybe it should read…

Jeffress This instruction's right out of the red book. That sentence doesn't say what B interpreted it to say. The fact that he was once charged with lying about that conversation, we say very clearly that they can consider all the evidence WRT Libby's conversation.

B That's the way we began. That aspect doesn't add anything. The idea here is that you don't consider negativelytoward the defendant. [Damn! I just saw Libby's thumb twitch for the first time]

Walton I understood that they can't consider it for lying, but they can consider it for lying.

Wells This is what we agreed to yesterday. We submitted it to your honor and your honor read it to the jury. WRT clarifying, we should not now be rearguing the sense of the instruction.  

Walton We're first telling them they cannot consider whether he was charge, but they can consider the conversation on that day, you say they also can consider wrt the obstruction.

B You're right

Walton, then it is not correct.

Fitz the remaining allegations, which would include the obstruction charge with the piece that was removed

Walton So it's right now

B I still think there are two areas where it is weak. How is that not a repetition of what you ay that he was previously alleged. That's the other piece, "cannot in any way influence your verdict." July 12 conversation cannot be a basis for the charge. I think all of us understand this point, our concern is that it may be misunderstood by the jury. We agree the instruction should be there, we want to make sure they're not confused about dismissing the evidence.

Wells, she's trying to rewrite the instructions. We took this right out of the red book

Fitz Redbook talks about dismissed counts, this is a dismissed allegation.  We have it written with charges on one page and allegations on the other. Count One, they can consider the evidence on

Wells if that's all they want to do, I don't have a problem.

B Wells is correctly saying that I've identified more than one passage

Wells I don't want to go down this road of being reasonable, now they want something more.

B OH no, I laid them all out there yesterday.

[BTW Christy would be loving Bonamici here]

Wells this instruction should not be changed.

B On that aspect, as I explained, it sounded right to us as lawyers, when we heard it, it sounded confusing. I don't think this would be the first time someone agreed to something and then tried to revisit it.  It's not that he lied, it's that he was charged with lying.

Walton That part of the allegation regarding the obstruction charge.

B My suggestion be that the first clause be taken off.


Wells She's just trying to reargue something that was read to the jury.

B Our view is different and that's the whole point.

Walton Do you have problem with "that allegation" I can take it out.

B And then make that a period

Wells makes a frustrated, ah fine.

B And we're also changing "remaining allegations."

B WRT memory instruction. We appreciate that you put it behind the credibility instruction. THough we do recognize that you addressed much of this. The court is addressing it in such a way that is a reptition of the theory of the defense. If we're going to add this detail about memory. We previously objected to this. If we are going to add more detail about memory. it should be a neutral instruction rather than one connected to the defense theory of defense or connected to our witnesses. We don't see the point of the "defense contention" here. It puts the courts stamp of approval on it.

Walton Defense contends, I'm not putting a seal of approval on it.

B Another way of saying it is "the issue of memory has been raised as an issue in this trial.

Jeffress I don't think that specifically addresses the purposes of this instruction at all. We tried to call memory expert. The one you have here is pretty much the one in the preliminary instrutcion. The defense is entitled to point to the way memory bears on defense or innocence. We think that ought to stay in. As far as B's point that this applies to other witnesses.  We submit that that is necessary to point to jury to the necessity of these priinciples.

B If your view is that this is neutral, I guess we can live with it. I guess we wanted to include other elements. The two we flagged were importance of info, the distinctiveness. [Jerelyn is almost certainly saying "see, you should have let the memory expert in] On page two if we added, If you consider the nature of the information–that is supported by both sides on this.

J We're permitted to argue  importance

Walton She said distinctive

J I don't even know what that means. If we're going to put importance here, we're going to argue it.

B I don't know what that means. I don't see any drawback to putting distinctiveness.

Walton I think nature covers a wide range of factors.  We're going to have some discussions abotu what would be appropriate argument. I don't think there's any evidence in record that he considers this of more importance than Valerie Wilson. It would be appropriate to say, you have heard info Libby dealing with, and we submit it's not unreasonable he would not remember the events of this case. I think it's a reasonable inference that can be drawn from the evidence before the jury.

B The final instruction, this takes us back to obstruction. Which is, five pages in, number 1, it's a very minor point.

Walton Which one, I'm trying to put them back in order.

B Paragraph is number 1, We would ask that the sentence be broken up with an A and a B. an A be put before Mr Rusesrt and that, after semicolon that a B be put before "that" 

Sounds like Walton's cold is back. Jeffress, leaning against the defense table, they do not object.


Oops, Walton runs out with a coughing fit, it looks like. Okay, he's bac. 

All the media has disappeared from the courtroom. They're committing to not having stories on this.

Walton: You want A B and C, or just A and B.

B Just A and B.

Walton: Okay I got your.

B The last issues is substantive that we've objected to in the past, language about ambiguity.

Walton It's not in there is it.

B It is. Not all of it. THe last page of the instructions?  The perjury charge. Literally the last two pages of the whole set.

Walton I thought it was out.

B I may have come out of the false statement. I don't know I'm confused.  

Walton, you're objecting to the last two pages. I indicated that would go out. But I think it was mistaken.  Does defense believe there's a factual basis for the ambiguity. Defense have any position on that.

J I remember when, the govt excerpted something in count five, that was only his answer. I think ambiguity has some factual basis. I need to look at it, if it's appropriate. In count 5, p 160 of second GJ, indictment counts, talking to other reporters, I don't see that as a crime. The question was, isn't that something, how often do you report to VP to let him know you didn't commit a crime. I do believe that, I don't know whether ambiguit is the right word or not. It has to be considered in context it was asked.

B In govt position, that clearly is not an example of ambiguity.

Walton I deal with that on previous page.

B Our complaint follows that.

Walton Does counsel believe that addresses your concern.

Wells, no I think every perjury case deserves ambiguity.

Walton O'Malley says that there has to be something in teh record that supports it, it doesn't happen automatically.

Wells they've cobbled together a number of different statements from different parts of GJ testimony. What they've done here, they've gotten something from page 14, and something from page 20, this jury should have the right to decide whether the questoins or answers are ambiguous. I don't think it would be appropriate to take it away from the fact finder. I don't criticize what they did.

Walton I would agree that if in fact the charge would suggest ambiguity I would suggest the instrutcion would be appropriate.

B There is no ambiguity in cobbling together statements that repeat the same thing. This instruction reads exactly what it should if you find the question is ambiguous. If an answer is literally true given a fair interpretation of what the question asked, you cannot find defendant guilty of perjury. 

Walton Counselor says indictment itself was ambiguous.  If I think counselor is right, I'll go back and look at it.


Jeffress up. We believe that counts one, three, and five.

Walton That's why I had a problem with your verdict form. Your verdict form doesn't address count two.

Jeffress I believe a unanimity instruction to 1, 3, and 5, your honor has it as to counts 2 and 3.

Walton if there's different conduct that would constitute a violation of those counts, you'd be entitled to that instruction.

J As to that verdict form, you shouldn't have special form. The reason we did one, for appeal if we needed to know which of the conduct, it's only count one that distinguishes between Russert and Cooper, we need to know which basis the jury convicits on. "If your finding is guilty, please identify which one you used." As to the verdict form, all of these special interrogatories.

Walton You have all switched up on me.

J Yes,  As I said in the memo, that was a complete miscommunication. We submit that the only count as to which anything on verdict form would be count one. 2, 3, 4, 5 ought to be guilty and not guilty. Jeffress looks back at B–want to respnd to that one or should I continue.

B This is why I proposed to Wells, that everyone is doing some changing up today. When we changed it, we were trying to respond to you comments. We have a preference for a special verdict form this time. There's some confusion in the law with obstruction, it's really a little murky. Given the way obstruction charge is written in our indictment, it'll give us the biggest insurance policy it'd be very clear what the jury decided.  We don't object to the obstructions. WRT the other charges that charge more than one statement. The unit of prosecution is the statement itself. Jury would be entitled to find guilty if one statement is found a lie. Each side, if there were a conviction and appeal, it would matter to know which jury found guilty. If there were a finding that one statement not supported by sufficient evidence, you'd need to know if jury agreed on one statement 

Walton You wouldn't need a special verdict form

B You'd need it to understand which statement they'd agreed upon. The law doesn't require it. We don't disagree with Jeffress that they're not required and not favored. Special verdict form should not be used as a way of cabinning jury deliberation, shouldn't be 50 page checklist. That would be inappropriate. Simplified special verdict form does provide parties and appelate court with very specific information. Guilty, Not Guilty, if you have a finding of guilt, you go onto say what it was. We don't object to that order. We may be getting closer to agreement. One thing I can tell by looking at it quickly, it's simplified. In those senses, we'd agree. We don't understand why defense would object to SVF.


B As long as evidence to support one form of jury's decision, it's not reversed.

Walton, if that's true, why would you need this?

B I think the law, as it stands now, so long as the unanimity requirement is there, we don't see any reason to not have SVF for these. The point we would make that has been submitted, what is important is that the statements are provided to jury as standalone statements.

Basically, what's going on here is Prosecution is trying to make sure an appeal that throws out the conviction on one lie doesn't throw out all lies. And Defense is trying to set up an argument wherein they can appeal the obstruction charge by appealing the lies that the obstruction charge is based on.

B points out that two statements relating to Russer [including the "didn't know he had a wife" which Jeralyn commented on in the PTV the other day] were combined as one.

Jeffress The only one we're agreeing on is 1. To the degree he'd be entitled to it on 2-5, he waives that. Govt wants to contend it's three statements, as opposed to two. Apart from this, we're in agreement on Count 1.

The importance of this is that so long as Libby lied when he claimed to have said that he "didn't know Russert had a wife," that was all a part of the the lie that he learned from Russert. You see that the  "not knowing he had a wife" is very easy to prove. Which is why they're trying to yoke it to the "found out from Russert."

J Now switches which counts he wants to have unanimity requirement.

B We don't know how they can conclude that there are not two statements there.

Sorry–the statement is "he was surprised," and "he first learned it." 

B Either one of those statements is sufficient for conviction on one.  The issue we're discussing now, that I'm responding to, is whether there are three options on count one, three different statements.

Walton you're saying that count 2 supports your argument.

B We don't have any idea what basis they'd have that there were just two statements.

Walton What's your position regarding defense position that they only was a SVF on COunt1, though they want Unanimity instruction on 1, 2 and 5. They're waiving any challenge on whether SVF is being submitted. 

B We're confused by it, question is whether there's prejudice to us.


B WRT your direct question. Can we have a SVF on one and not the others. We can live with it on one if it lays out the charge properly.

Walton Looking at the two collectively, they're two different statements.

B As long as it makes it clear, we can live with that. 

Walton I will conclude there are three different allegations on Count One. My inclination is give what the defense wants on the other charges.

Jeffress Three more things. I'll address one, then Cline and Wells. Your honor does not address IIPA and the reason we request this is as follows, you remember that in testimony of Addington, Libby came to him and asked what this law was, ADD provided a copy. Then in one of the newspaper articles, there was a reference to the IIPA. The govt will argue that one of the reasons Libby lied is he feared prosecutions. We cant let jury think that it is a crime for identifying when someone turns out to be covert. I think the jurors need to know what it says. That instruction is necessary in fairness to Libby.

Walton I appreciate that, I was trying not to confuse the jury. My only concern is do we have to define what constitutes a violation. Or do we say that there is no claim that it was violated, but you may consider Libby's state of mind in reference to statute. If that's the only way do it.

[Reference to our discussions about jury nullification are pertinent here] 

J It's not a lengthy instruction. Jury knows Addington showed him that before he talked to FBI.  Govt will argue that he lied not to get prosecuted under that statute.

B The gov't view is if the jury is going to be told about one of the statutes, it should not be limited to one statute, it should be informed of all the statutes he was informed of at the GJ.

Walton he had already made the statements.

B There were a couple of statutes that were mentioned before GJ and in newspaper articles. The IIPA was the narrowest-drawn statute. Defense wants jury to understand that on one hand he may have been concerned, they want to know that concern may have been mitigated. It would give jury false image of reality of potential prosecution, to focus attention on that statute simply bc he received a copy of that. Clearly the nondisclosure indicated a broader range of statutes. There are two additional statutes that relate to diclosure issues (leaking defense info, theft of govt property [ah! I had been asking about this, I get it–they wondered whether he had HANDED classified info to Judy in the July 8 meeting]). THose statutes were named.  She goes through it from the GJ.

J There's no evidence that he was told this was basis for investigation. [That's not true!! The October 12 article mentions some of these statutes, I think!!] 

F The Addington conversation, non-disclosure, FBI interview, unauthorized disclosure of classified information. He wasn't told either one by name or both.


F Libby asked "how would you know if someone was undercover" and it was Addington who gave him the IIPA. And the public statement he had issued wasn't that he didn't violate IIPA, he went so far as to say, "I did not leak classified information." And president said anyone involved in leaking classified information would be fired. His statements and representations are about classified information. So to pick out one statute without explaining the other one would give a distorted view.

J THe only evidence in this case, or newspapers,

WAlton That's probably why I don't need to identify anything more than that.

[Fitz!! Check the October 12 article, I think it does reference other ones!!] 

Fitz we're now giving them something external to the evidence.

Walton Don't you have in the record what his state of mind conceivably was.

Fitz, In the GJ he was mentioned several statutes.

Walton Was he told that in the GJ.

Fitz He was told twice. Why should we assume? All we know from ADD is that he gave him statute. We know he was told what the investigations that he violated in. ADD provided him a statute

Walton He's a lawyer, we can infer that he read the statute

Fitz He's a lawyer, we can infer that he would read the other statutes.  The non-disclosure agreements provide other statutes. It creates a false impression.

Walton But you've got the newspaper articles, you put that into evidence, bc it would indicate state of mind.

Fitz But the jury will be told one but not others. As if someone exposed to Kingpin and narcotics conspiracy act, but only told about Kingpin [Jeralyn, you want to explain that one?]

Walton I'm telling jury that they may rely on stuff in the record.

F If he's worried about several prospects 

Walton We know he was given statute. You have argued that if something's in file, you can infer he would have read it. That raises sufficient basis for telling jury what it requires for violation. There is no evidence that he looked up those items.


Jeffress, I'd say evidenc concerning the statute, and any other evidence, has been admitted solely for addressing state of mind.

Fitz We should add that IIPA isn

Jeffress The only EVIDENCE in this case concerns IIPA. Govt trying to get you say all kinds of things NOT BASED ON EVIDENCE>

Fitz that would be true if we left out nondisclosure, GJ statements, and his statement that he didn't leak Classified info. If we charge the jury with just telling them IIPA, they will be left wiht impression that that's what leaking it is.  

Fitz Might I suggest overnight we suggest some language.

Jeffress We object to them starting to explain to jury all kind of violations of law. 

Fitz I don't want to leave false impression that the only way you violate is to break IIPA.

Bonamici. One last point. THere is no evidence in record regarding statute.

Walton you all want jury to infer that bc these articles were in his file.

B And there's no other evidence between that and nondisclosure. What we are objecting to.

Walton [oh he's made now] What ohter language is in the record. Submit something to me and I'll consider it. I was hoping we could finish this. My staff don't get paid overtime. It's bc they don't give us any money.

Wells, before trial started defense submitted good faith instruction, govt did not make any comment WRT it, we assumed it was going tobe charged. I don't know if your honor ruled on it.

Walton I did  [oh boy, he wants to go home now]

Wells When I represented Espy in front of Urbina, he gave me good faith instruction, in neither did defendant testify. 

Walton Do you have case authority

Wells I did get it in Espy from Urbina and Kessler, I'll get you something.

Walton First thing in the morning, I'm going to come in and work tomorrow.

Cline CIA briefer stipulation is almost done. It'll be defense exhibit 1850 when complete. Instruction I wanted to talk about briefly. We originaly proposed on a number of factors.

Walton The things you requested, it may be the way its framed, are definiteively telling that something that is in fact the case, I don't think judges should do it, if it can be rephrased to leave it open

Cline, Let me suggest this. WO waiving positoin, One is accuracy, other is tendancy what he has recalled before

Walton that's sort of a definitive dictate to jurors.

Wells Brief housekeeping matters. Stipulation from Eckenrode, I neglected to offer them into evidence. 

Walton We can make it part of the record. Those are stipulations of fact or testimony?

Wells Testimony. Gives them numbers.  Second issue relates to clips with Russert and Mr. Miller, we were looking at record to see if they had been admitted. WRT Miller's clip, Jeffress offered clips, govt wanted to submit something.

Walton if they were shown to the jury they should be evidence

Wells we'll give them both DX numbers

Walton as my instruction said. I guess they have to come into the court room.

B WRT impeachment, those don't come in as substantive evidence. They should not go back.

Walton they would only be shown again if they asked to see them

B where they make the request they should be given limiting instruction again.

Fitz do all stipulations go back to jury.

Walton unless there's an objection

B In a normal case they don't go back, bc stipulations of testimony, bc jury unduly gives that more weight. most were stipulations WRT impeachment, prior statements. I don't think they stand on same basis.

Wells I asked if they would go back. I could have demanded that agents would be brought in, I was told that they woudl go back.

Walton I can give them an instrucion that says they should not give them more weight.

B We would not object to them going back on that basis, wrt stipulations on impeachment, that it be flagged that they were offered for impeachment, not substantive evidence.

Walton you need to draft some language. I don't know if we can put something on document itself, indicating how they should be used.

Walton Let me see. I had a question about prior consistent statement instruction. There were a number of times when prior consistent statements were heard. I need to know whether I should give this instruction.

Jeffress We are entirely indifferent. You could consider Miller, Pincus, who had notes, that might be consider prior consistent statement.

B Yes, it should be given, we are giving the prior inconsistent statement.

Walton and as I understand that the limiting instructions will not be repeated but they will be sent.

Walton Theory of defense obstruction, any position.

B We haven't had time to review in detail.

Walton as long as there's evidence to support it, I think it appropriate, regarding second sentence, regarding lacking notes, I think there's evidence that supports that, Tate told them he had not had time to review it.

B One thing overall, I can tell you from a brief review, this goes well beyond what we consider appropriate, it's a condense version of closing arguemtn.

Walton I know across the street, it would totally appropriate. If you can find some case law that. Next sentence he says circumstancs "may have" affected his memory, I assume that's what you want, I thought your position was that it did affect his memory. [not sure how that came out]  I had a problem with the term "brief conversatoins," but are they brief.

Jeffress All less than two minutes

Bonamici, weving Ted up to talk at microphone.

Wells, He testified none was longer than 2 minutes.

B We'd object that the conversations are brief.

Wells, we qualified conversations

B We haven't had a chance to review it

Walton I'll change FBI Investigators to Agents, Happened to Occurred, When he testified to GJ, I'm going to add in March. I think there's a factual predicate that he was not Novak's source. What factual, what evidence would support him not knowing what her status was.

Wells in the GJ he stated he did not know, no witness has stated

Fitz, no, we don't object.

Walton Next sentence, I think his waivers would be sufficient to cover first part of sentence.

Fitz waiver (on journalists) signed in January, there's no basis for evidence in October.

Walton the last one, would journalists testify truthfully

Fitz, that would go back to the first part of the sentence, since there aws no waiver.

Walton I need something in writing.

Fitz We'll give you that tonight.

Walton I don't have a staff tomorrow, we need to have you come in at 9. We'll finish all these. [every looks panicked at each other] 9:00 Tuesday.  

Wells can we talk about closing. We've told law clerk that we think we might close for up to four hours, we don't want to be put in a position where govt gets to do rebuttal all by themslves on Tuesday [maens Wendesday] Two approaches. We could go until 6, we could try to get it in on one day. We could agree that whereever we are, I get an hour on Tuesday [means Wednesday]

Walton I really don't want to have, we're only talking about 16-17 witnesses. four hours.

Wells if we could get it all in, I can try to cut it back

Walton That would be my encouragement. How long govt. 

Fitz  Main summation and rebuttal four hours. If Mr Wells is running around opening up doors, I'd like to close them. I worry about squeezing them in. It'd put pressure on me in an important case. I think between the two of us (Zeidenberg) I don't think we should artificially add a day. 

Wells I just don't want ot be in the spot where he's by himself. I'm willing to cut down to get it all done in one day. I'd either like to impose limitations, and we'll live with it. When we did Espy in front of Judge Urbina.

Walton If we start at 9:30, 12:00, go until 1 come back at 2, you until 3:30, govt until 5 or however long, we've got to do it.

Wells, I'll keep it to three. I'm willing to be locked into that.

Fitz We've tried to be efficient, I don't want ot be cut short, if he goes long.

Wells, if both you all keep it to three hours.

Fitz The one thing we've done in this csae, Russert direct is 12 minutes. You've never cramped our style. I'd like to be done that day, but  

Walton: Zeidenberg until 12. Break for 15 minutes. Can argue until lunch break, further for defense. If they finish by 3:00, that would give us enough time to get

Wells What Judge Urbina, what he basically did, to make sure it got done, he set firm time limits. He let you know those were the limits. Both sides agreed it'd be unfair to go until the second day.

Fitz I don't see it as inherently unfair, I like to get things done efficiently. If there are arguments because of something that happens in summation. If we get cut short, My concern is that the numbers don't add up with the breaks.  

Walton.  I think they do.  9:30 – 11:30. 11:45-12:45 1:45 – 3 :45 to defense. 4: 00 to 5:00.

Fitz I may need more than an hour to rebut.

Walton 3 hours seem sufficient. If you need more Zeidenberg will have to cut down.

Fitz 9:30 to 11:30, is there a break. All I ask is that there are delays. If I see that there are extensive problems. My only problem would be for defense to do half of theres.

Wells I've been in a number of cases, including this courthouse, 

Walton I don't believe in slavery, I don't want my staff to work for free.  What I'll do, if everything goes as it should, if there are objections, or if we started late, and ou finish the first part of your argument, we'll have to bring the jury ,let them go early.

Fitz All I ask is we get consideration that we not get squeezed.

Walton If we see we're going to have a problem.

Wells What I'm willing to do is a time limit.

Walton I've set the time. I don't have any control over objections.

Wells I don't want to be in position.

Walton it's going to be three hours.

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Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.