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Just Say No To Shiny Objects

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Judge Reggie Walton issued a Memorandum Opinion on Friday which details a number of the legal issues which were the most contentiously argued during the course of the Libby trial.  Not surprisingly, these issues also track the most likely suspects for Team Libby to use on appeal if Libby happens to be convicted by the jury, because they track the objections most loudly and vociferously raised by Ted Wells and William Jeffress over the course of the trial.

As emptywheel noted yesterday, Friday was the final day for Judge Walton's prior law clerk — who had been working diligently on this case and for the judge for the last few years.  It is not surprising, therefore, that the judge would want his outgoing clerk, who had been present for every motions hearing, every CIPA hearing, every hearsay dispute, even more CIPA hearings, all of the exhibits haggles, and yet more CIPA hearings, to be the one who worked on the substantial portion of the trial memoranda with the judge.  (To bring in a new clerk for that, who would then have had to get up to speed on the case file and the judge's writing preferences within a few short days, might have constituted cruel and unusual punishment.)

The opinion is forty-eight pages in length, but it is a fairly tightly constructed outline of the major haggles over the course of trial.  And the overarching theme comes down to the fact that Team Libby kept attempting to put shiny, not-so-relevant objects in front of the jury to distract them from the core questions raised in the indictment, that the government lawyers consistently argued against this, and that Judge Walton is no fan of distractions that are tangential and likely to drag the trial down some irrelevant zigzag to Distractionville.

Shorter Judge Walton:  just say no to shiny objects.

The first segment of the opinion deals with the defense attempt to call Andrea Mitchell as a potential impeachment witness for Tim Russert, with the thought being that if Andrea Mitchell may have known something she now says she didn't know, that she might have told Tim Russert something that Tim Russert says she didn't tell him because he didn't know it either.  (Is that clear enough for everyone?)  Judge Walton said that this was a speculative attempt to use information that Mitchell had already claimed has been misspoken, and frankly it was without any corroboration other than Mitchell opening her mouth and inserting her foot on CNBC.

Honestly, though, the opinion is worth a read all by itself for the judge's description of that October 2003 Capitol Report appearance on CNBC, and the discussion of whether it does or does not meet the legal criteria of trustworthiness. 

The gist of the Mitchell portion is that the defense team could not call her to then use some prior statement of hers to impeach her and also to impeach Russert without there being some evidence somewhere that there was some basis in fact (and not speculative fantasy) that Mitchell was doing anything other than stupidly trying to appear "in the know."  (Yes, I know, the endless realms of competence are exhausting, aren't they?)  Rule 607 of the Federal Rules of Evidence prevent a party from using a prior inconsistent statement of a witness for the primary purpose of exposing the jury to otherwise inadmissible evidence.

In other words, remember that whole "bootstrapping" the classified materials in through Craig Schmall argument way back in the testimony, wherein Team Libby tried to get in otherwise inadmissible memory defense evidence without Libby having to testify?  It's like that, except using Andrea Mitchell as the vessel of the information that they couldn't wedge into trial otherwise — or, as I like to call her, shiny object number one — because her probative value is substantially outweighed by her ability to be prejudicial, under Rule 403.

The next portion of the opinion deals with the state of mind evidence that Team Libby was trying to sneak in the back door of trial without ever putting Libby on the stand.  Judge Walton was quite clear up front that he would not countenance this sort of tactical machination unless and until Libby had testified, because others could imply knowledge, there could be the introduction of extrinsic evidence of Libby (notes, papers, remembrances of temperament and action, etc.) from others (such as John Hannah, Jenny Mayfield, or Dick Cheney), but that without the testimony from the defendant himself, no clear evidence of state of mind could be produced for the jury — and that any inferences thereon could not be for the truth of the matter asserted — or for the truth of the ultimate legal question in this case for the defense:  did Scooter's hard job make him lie?

I've said it previously, and it proved true here as well:  the good stuff is always in the footnotes.  Consider footnote 14, wherein the court details that the government found no less than fourteen instances during the CIPA proceedings alone where representations were made that the defendant planned to testify, and that decisions of the prosecution and the judge were made based on those representations (including nine statements wherein Judge Walton prefaced his ruling with some assumption that the defendant would testify and therefore something would be decided a certain way).  Judge Walton made it abundantly clear in his opinion that, of course, the defendant retained a right to not testify at trial, as all defendants do, but that affirmative representations of testimony having been repeatedly made by defense counsel, certain decisions were rendered only due to those representations — which turned out not to be accurate.

My sense is that Judge Walton is less than pleased, but that is just an inference that I am picking up from the abrupt tone of this portion of the opinion.  (And from watching him discuss this issue up close in court prior to closings.)

The reason for pique at this?  Because Libby was allowed to wedge in a number of national security matter issues that would not otherwise have been admissible, but because he did not take the stand in his defense, the government was deprived of their ability to cross-examine him with regard to the extent to which these matters were actually his focus in the days in question.  Or whether his mind was on other matters entirely (say, political payback to Joe Wilson for questioning his boss, Dick Cheney).  This allowed the defendant to tap dance around matters that were a common theme for him on a day to day basis, without ever having to explain that this was his daily job and that his mind was, in fact, occupied with other pressing issues (such as, say, CYA for his boss, Dick Cheney).

One of the funnier footnotes is a short one at footnote 18, wherein the judge discusses the fact that the defendant, via counsel John Cline, was able to elicit detailed testimony from the CIA briefer Craig Schmall, about the 6/14/03 briefing, "the day he [Libby] asked about Mr. Wilson's wife."  Subtle working in of the important point of the testimony by either the judge or his clerk.  Nicely done.

Oh, and speaking of Dick Cheney, look who shows up in footnote 29, wherein the court discusses the number of people that could have presented extrinsic evidence regarding Libby's state of mind at the time in question.  Mentioned are John Hannah, David Addington, Jenny Mayfield, and…oh, look, it's Dick Cheney.  As the opinion says, the Vice President could have been called to testify

"concerning the issues he [Cheney] directed the defendant to address and upon which the Vie President expected the defendant would devote his time and attention."

Now isn't that interesting? Almost as though Judge Walton knows that the defense had no intention of calling Cheney because they didn't want him to talk about just that. (Perhaps because the answers Dick Cheney would have given during cross-examination would not have been altogether helpful for the defendant?)  And yet, there it is, laid out all nice and neatly at the end of footnote 29. 

Ultimately the argument here is whether the restrictions on evidence of the defendant's state of mind violated his Fifth and Sixth Amendment rights to not incriminate himself and to a fair trial.  The answer, according to Judge Walton, is no:  when you decide to testify as a criminal defendant, you risk an often blistering and difficult cross-examination by the prosecutor, potentially exposing yourself to some damaging answers on the stand.  When you decide not to testify, there are risks to that as well, including the fact that you forego presentation of evidence particular to your own, personal self to the jury — because you may be the only person for whom that testimony may be possible.  There are risks with both paths, defendants are to weigh them prior to and during the trial proceedings.

And in this case, Libby had a highly paid, skilled, experienced trial counsel — actually, a whole pack of them, since they took up an entire counsel table, all of the chairs around the edges of the defense side of the courtroom and half the overflow room, with more back at the respective offices of each lead counsel.  It is disingenuous at best for Team Libby to make any argument that Libby, a former white collar crime lawyer himself, had no real understanding of the inherent risks involved in a decision to take or not take the stand.

And without an adequate foundation being laid for the admission of evidence, it simply ought not be admitted.  And so, Libby's state of mind never even got to the table to be laid out.  Emptywheel did a great job discussing the intricacies of the arguments on memory yesterday, and I don't want to re-plow that ground any more than I already have.  Suffice it to say, Judge Walton was not exactly impressed with the "my hard job made me lie, and you should allow me to say so without me, personally, having to say it" shiny object either.

Finally, the last section deals with the spectacle that could have been, a/k/a Tim Russert taking the stand a second time to watch himself talk on and on about Bill Clinton's perjury allegations.  As it turns out, Russert did go to law school but he never practiced, and he apparently has able staffers who brief him before he goes on the air so that he appears to look like he knows what he is talking about…and then forgets what he has said.  So Russert didn't really know the grand jury procedure, and because we lived through five grueling hours of cross-examination with him on the stand (did I mention they were irritatingly dull and repetitious and grueling?), the judge felt that this spectacle of "here is yet another thing you don't remember knowing" was the step too far.

To Judge Walton, I can only say thank you for bringing up this particular point:  "the basis test for determining whether a matter is collateral is whether the facts described in the statement could be relevant to any relevant purpose other than contradicting a witness's testimony." 

Since the sole purpose of dredging this up for another round of "poke Timmeh with a stick" would be to make Russert look bad, and not for much else, Judge Walton ruled that it was not admissible.  The same was also true with regard to the letters that were exchanged between government counsel and Russert's attorney.  More shiny objects, not any of real substance in terms of direct relevance to the charges at bar.

All in all, my favorite phrase in the entire opinion was "semantic illusion," used to describe the defense team's attempt to argue that an agreement made between them, government counsel and the court as to an evidentiary proffer was something that it decidedly was not.  What a great way to say "you are utterly and completely misrepresenting the facts, and I'm calling you on it."  But in a polite way.  I'm going to have to start using that one.

It appears to be a fairly solid opinion on legal grounds, clearly written, well argued, based on sound precedent.  Whatever employment Judge Walton's clerk has moved on to, they are getting a great find — the writing was clear and free from a lot of unnecessary legalese, so kudos to the outgoing clerk for some great drafting.  All in all, it's a preemptive move on the record against any potential grounds for appeal, should Libby be found guilty by the still-deliberating jury.  And now, we continue to wait for that verdict.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com

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