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Team Fitz Legalpalooza Filing, Part II

A little more Monk — here is the Thelonious Monk Quartet playing Round Midnight (Norway, 1966).

Here’s a link to the Team Fitz brief.  (PDF)  (H/T to TiredFed.) 

The first issue of contention that Team Libby put forth has to do with the Special Counsel appointment for Patrick Fitzgerald.  As I said in Part I, this has already been argued, briefed, and shot down in a thorough response from Judge Walton prior to Libby ever going to trial.  To argue that this is a substantive issue likely to hand Libby a ripe ground for appeal issimply wishful thinking.  Especially when you consider it in the context of Morrison (429 F.Supp 2d at 45):

The integrity of the rule of law, which is a core ingredient of the American system of government, is challenged to the greatest degree when high-level officials come under suspician for violating the law. And a criminal investigation of any individual, prominant or not, for suspected violations of law must be beyond reproach to preserve respect for the fairness of our system of justice. There must therefore be a process by which the perception of fairness withstands scrutiny of the American public when prosecution authority is called upon to investigate public officials. Creating that perception of fairness obviously starts with those who are charged with the responsibility of conducting the investigations.

The fact of the matter is that there was some level of supervision of Fitzgerald, that he was subject to at will termination had the DOJ or the President of the United States chosen to go that route, and that he was restricted in his purview of the case to investigate only those matters which specifically related to the express charge given to him in investigating the issues surrounding the outing of a covert CIA agent by members of her own government.

That Mr. Libby repeatedly lied to federal agents and to the grand jury while under oath and giving testimony was Mr. Libby’s own choice.  He must now face the consequences of his poor choice, just as all other criminal defendants caught in a web of their own lies must face the very same consequences.  Every single day, in courtrooms all over this nation of ours, lying defendants who have gotten caught at it face the music of their own making — why, pray tell, should I. Lewis Libby be any different?  Because he has powerful friends?  Because he hadn’t been caught breaking the law previously?

I sat in the courtroom and listened to the tape of Libby’s testimony before the Grand Jury play out for the jury during the opening statements.  It was clear, even from that first day of trial, that the backtracking, the hemming and hawing, the uncertainty, and the factually unsupportable contradictory statements that came tripping out of Libby’s mouth that he was not being well and truly honest with the grand jury.  And listening to that tape, watching Libby’s nervous handwringing under the lip of the counsel table, watching the trial jury’s eyes on him as he tried to maintain a mask of calm despite the tick of a vein popping out on his left temple, it became clearer and clearer to me that Libby was more than aware of all of this. 

One or two misstatements could be a mistake, a simple error — but repeated ones, deliberately told and embellished, on multiple occasions even after having an oath administered to you in court, when you are a lawyer who has worked on perjury cases for your own clients and are well aware of the penalties and risks involved in such unlawful behavior all the while holding a high-level office and breaching the public’s trust and national security guidelines in the process?  That is unforgiveable in my mind. And for what? Because Dick Cheney said so? No excuses. You do the crime, you do the time — just like everyone else.

Which made the amicus brief filed this past week all the more appalling in my mind.  And Bonamici takes the brief writers to task in footnote 11, pp. 13-14.

…The gist of the amici’s argument is that removeability alone is not sufficient. That ignores this Court’s analysis of the other limitations on the Special Counsel, Justice Scalia’s dissent in Morrison stating that removal at will of the Independent Counsel would have changed the outcome, and the Edmond court’s conclusion that removal is “a powerful tool for control.” Thus, the amici have not established that there is a substantial question as defined by 18 USC 3143(b).

I’d say that is a pretty clear answer to the Free Scooter Look At Our Impressive Credentials Brigade, wouldn’t you?

The next issue addressed deals with the decision not to allow testimony from a memory expert that defense counsel proposed.  Readers will no doubt recall the dismantling of the memory expert that Pat Fitzgerald performed during a thorough cross-examination in the Daubert hearing prior to trial.  Just for fun, let’s revisit that for just a moment:

…Fitzgerald’s blistering, nearly three-hour, questioning of Loftus caused her to admit that some of her own findings about what juries know about memory were faulty and that some of her own research may have been flawed. Quoting from her own book “Witness for the Defense,” Fitzgerald also confronted Loftus about how she might sway a jury if called to testify at trial. She had written that, “using my arsenal of subtle psychological tools” Loftus could make an impression on a jury about her perception about guilt or innocence.Libby lawyer John Kline put Loftus on the stand to explain to Judge Reggie Walton – who must decide on whether to admit Bjork – that Loftus’s 2006 study, based on a survey of 1000 D.C. jurors, found that most of those surveyed thought that memory could be likened to a “tape recorder.” The perception the mind can remember like a recording device is not true according to some memory experts.

But Fitzgerald pointed out in his cross-examination that the study itself may have been skewed. Loftus admitted on the stand, after being picked apart by details from her own works, that the answers to some of the questions posed to jurors in the study actually prove exactly the opposite – that jurors can in fact use common sense to ascertain the effects of memory on witness testimony.

I cannot begin to tell you how difficult it is to trip up an expert witness on the stand, especially when you are doing cross-examination of someone who is considered to be a top expert in the field and who has had courtroom experience in prior cases for similar research material….So now I’m asking myself: who on Team Libby was assigned to read this particular expert witness’ information, do her hearing preparation, and thought, in their wildest dreams, that Patrick Fitzgerald seemed like the sort of fella that didn’t do all of his homework and then some? Because, as I have said before, the devil is in the footnotes — and Pat Fitzgerald evidently learned that lesson as well.

Fitzgerald challenged the validity of memory research. Citing footnotes in her publications, presenting conflicting statements and questioning her methodology, Fitzgerald got Loftus to acknowledge that a statement in one of her research papers was taken out of context and that a figure in one of her books was incorrect.

Brilliant. Just brilliant. That mathematics major from Amherst still comes in handy, I see.

It is Walton’s decision to bar testimony from a memory expert that Team Libby now contests again. But Walton’s opinion on the issue was not only through, but excrutiatingly so — detailed not just in fact basis, but also in legal grounding for each and every element of the decision. That is going to be one tough issue to appeal, in my opinion. And Bonamici agrees:

As the case law relied upon by the Court (see 461 F.Supp. 2d at 7) makes clear, expert testimony regarding matters that are already familiar to the jury is not helpful and, thus, not admissible.

In other words, just because the jury saw Libby as a liar, that doesn’t get you a do-over with a memory expert who was already deemed to be superfluous, not helpful, and likely to cause far more prejudice than to be able to give probative, useful testimony by a judge who extensively examined this question. And, further, as grounds for appeal?  This one is not likely to fly.

Further, Judge Walton built in a number of instructions — both cautionary ones to the jury during the course of the trial when testimony warranted such instruction, as well as at close of trial prior to deliberations.  That the jury found Mr. Libby less believeable than the others who testified, and found his excuses for his conduct thin and lacking reflects not on the lack of a memory expert but, instead, on the paucity of Libby’s justifications for his lawbreaking behavior. 

The jury got this one right, and no amount of stamping one’s legal foot and demanding a do-over changes that fact — Libby’s hemming and stammering and long, weird pauses during grand jury testimony alone sounded like what The Peanut does when she is caught with her hand in the candy jar.  And the jurors clearly got that message, loud and clear, even if Libby’s supporters don’t want to believe it.

The next issue deals with CIPA hearings and the detailed process that the Court took everyone through, as required by law, to determine admissibility or lack thereof of the vast array of documents that Team Libby was trying to greymail into the case for their own purposes — whether to confuse the jury or force a dismissal on greymail grounds, they will have to answer to themselves, but it was a vast array of documents, each of which had to be combed through individually by a team of lawyers from both sides fo the case, the CIA and other federal agencies over a period of months.

As to the issues advanced by Team Libby on this, the complaints boil down to three areas of contention:  (1) that the substitutions proffered by the government were inadequate; (2) that the Judge should have admitted the Statement Admitting Relevant Facts in its entirety at trial; and (3) that the defendant’s CIA briefers should have been able to testify in more detail about scary national security matters in which the defendant was involved, among other things.  All of these issues were addressed repeatedly by Judge Walton on the record during trial, during testimony of witnesses, during cross-examination especially of CIA personnel when Team Libby managed to wedge in a lot of material that the judge had previously ruled inadmissible — so the gripe comes down to wanting to have the original documents in front of the jury rather than giving them the information in testimonial and exhibit format, as they received it.

Frankly, that’s also a bit weak as an argument, given the enormous volume of national security information that Team Libby managed to repeat ad nauseum in front of the jury.  (Just go back and read through the liveblog transcripts of the Craig Schmall testimony alone to see what I mean.)  Most of this hinges on evidentiary rulings questions which will be reviewed by an appeals court only for abuse of discretion questions — and those are truly not likely to be found, based on everything I saw at trial and how carefully laid out Judge Walton’s rationale for his rulings was made on the record and in the brief on rulings that he submitted following trial.

Finally, the issue of Andrea Mitchell’s exclusion for testimony rears it’s ugly head again.  Judge Walton was quite clear on the record that calling Ms. Mitchell was a tactical attempt of the defense to impeach her based on a prior out-of-court statement that was deemed to be a maneuver designed to prejudice the jury against a defense witness based on a statement that had little to no probative value.  (In other words, the Judge thought Mitchell was essentially talking out of her ass, but wasn’t willing to turn his trial court into a media circus just to embarass her or Tim Russert when the testimony about the statement itself had little probative value as to Scooter Libby’s lying or not.  It made Mitchell look bad, sure, but that was it — and that, in and of itself, is no reason to call a witness.)  In short, speculation does not grounds for appeal make.

Team Fitz concludes by asking that Libby go to jail, directly to jail, do not pass go, do not collect…well, let’s just say that a pardon wouldn’t be welcomed by anyone who respects the rule of law.

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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