It must be true that trial lawyers never sleep when they are in trial. Check out the motion (pdf) Team Fitz filed yesterday alleging a new motive for Scooter Libby to lie to investigators and the grand jury. Shorter verson: Libby knew that he had signed non-disclosure agreements in connection with his employment and was afraid that by telling the truth that he disclosed Valerie Wilson's employment with the CIA to reporters, he was in violation of his agreement and would be fired and lose his security clearances.

Fitz alleges:

The government intends to prove that, at the time he made the charged false statements, defendant was aware that, if Ms. Wilson’s employment status was in fact classified, or that Ms. Wilson was in fact a covert CIA officer, in addition to potential criminal prosecution under a number of statutes, defendant faced the possible loss of his security clearances, removal from office, and termination from employment as a result of his disclosures to New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper.

The New York Times had an editorial yesterday on our ever expanding prison population that included the amount we are spending on prisons. It's now up to $60 billion a year.

After a tenfold increase in the nation’s prison population — and a corrections price tag that exceeds $60 billion a year — the states have often been forced to choose between building new prisons or new schools. Worse still, the country has created a growing felon caste, now more than 16 million strong, of felons and ex-felons, who are often driven back to prison by policies that make it impossible for them to find jobs, housing or education.

What's the solution? Use prisons as a sanction of last resort. Let's stop incarcerating the non-dangerous offenders. Let's end mandatory minimum sentences.

Tell Congress to pass the Second Chance Act providing support services to those leaving prison.

The Times offers more good recommendations:

Michael Nifong is having a bad month.

The North Carolina State Bar filed a second, more serious round of ethics charges yesterday against the district attorney in Durham, N.C., accusing him of “systematic abuse of prosecutorial discretion” in the sexual assault case against three former members of the Duke University lacrosse team. ...

Much of the new ethics complaint focuses on Mr. Nifong’s handling of private DNA testing and his remarks to a judge and bar officials about it. Those tests were arranged by Mr. Nifong after a state laboratory found no semen, blood or saliva from lacrosse players on or in the woman or on her clothes. Using a more sophisticated test, the private laboratory found DNA from multiple men on the woman and her underwear, but none from any of the lacrosse players.

Mr. Nifong and the lab director decided to tell defense lawyers only about the positive matches, including a link to the woman’s boyfriend, in a summary report of the DNA work, said the bar, a state agency that regulates lawyers in North Carolina. The negative findings, which the bar said “tended to negate the guilt of the accused,” were included only in laboratory reports not given to defense lawyers for more than six months.

The Real ID law is a real disaster.

Maine lawmakers passed a resolution urging repeal of the Real ID Act, which would create a national digital identification system by 2008. The lawmakers said it would cost Maine about $185 million, fail to boost security and put people at greater risk of identity theft.

Maine is the first state to lodge an official protest against the unfunded mandate, but other states are joining the chorus. A Senate bill to repeal the ill-conceived law deserves prompt attention.

It was a big day in the Scooter Libby trial. Marcy (Empty Wheel) did an outstanding job of live-blogging all of it at Firedoglake, here and here. Three witnesses, former CIA employee Robert Grenier (Tenet's "point person on Iraq",) Libby's former CIA briefer Craig Schmall and Cheney's former press aide Cathie Martin all testified they discussed Joseph Wilson's wife with Scooter Libby before July 10, the date Libby spoke with NBC's Tim Russert.

Libby told investigators and the grand jury he learned of Joseph Wilson's wife from that July 10 conversation with Tim Russert. Russert says he didn't know about Wilson's wife before Robert Novak's article identifying her came out on July 14.

We also know that it was Vice President Dick Cheney who told Libby in June, 2003 about Wilson's wife supposedly being behind Wilson's trip to Niger. And that former State Department Undersecretary Marc Grossman also discussed Wilson's wife and CIA employment with Libby in June, 2003 -- before Libby discussed her at meetings with Judith Miller that month. And that Libby told Ari Fleischer about Wilson's wife during lunch on July 7, 2003, the day before Fleischer left for Africa with President Bush.

Wells tried to show that the memories of all of the witnesses, like Scooter's, were faulty.

They just will not let it go. And rightly so, because it will haunt their reputations forever. Yes, Bush v. Gore:

Three of the five Supreme Court justices who handed the presidency to George W. Bush in 2000 say they had no choice but to intervene in the Florida recount. Comments from Justice Anthony Kennedy and retired Justice Sandra Day O'Connor are in a new book that was published this week. Justice Antonin Scalia made his remarks Tuesday at Iona College in New York.

. . . "It's water over the deck _ get over it," Scalia said, drawing laughs from his audience. His remarks were reported in the Gannett Co.'s Journal-News. . . . "Counting somebody else's dimpled chad and not counting my dimpled chad is not giving equal protection of the law," Scalia said at Iona. . . . "A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case," Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, "Supreme Conflict."

Kennedy said the justices didn't ask for the case to come their way. Then-Vice President Al Gore's legal team involved the courts in the election by asking a state court to order a recount, Kennedy said.

O'Connor said the Florida court was "off on a trip of its own." Still, O'Connor said the outcome of the election would have been the same even if the court had not intervened.

Every bolded statement is unquestionably false. First, Bush went to court first NOT Gore. Bush filed a federal lawsuit challenging the recount. Second, the Florida Supreme Court decided SOLELY state law. It made NO ruling on federal law whatsoever. Third, if the view of equal protection expressed by Scalia is TRULY his view, then he has been lying in every OTHER EPC case he has opined in. Fpurth, Gore would have won if the recount would have been allowed. In all scenarios where there was a statewide recount that included overvotes, not dimpled chads issues. Just the overvotes.

But let's face it, what is left for these Justices to say? There are no fools here. Their actions in Bush v. Gore were beyond despicable - they undermined democracy and they undermined the Supreme Court as an institution. It is not at all clear we will ever get over what they did. Of course, one can play pop psychologist and see in the SCOTUS decisions of the past 6 years guilty consciences in Justices Kennedy and O'Connor. Lawrence, Hamdi, Rasul, may be the handiwork of that guilt. But we won't forget Bush v. Gore.

It's rare for TalkLeft to have open threads two days in a row. But my cable modem crashed today leaving me without internet access except the slowest kind. Comcast is coming to fix it between 10 and 12 Thursday morning, right before I leave for my appontments of the day. So, until I get it all squared away, I won't be blogging.

Has anyone tried having both cable and dsl working in their house? I'm thinking about it, because then when one goes down at least the other would work. The Cingular WWAN on my laptop moves at the speed of dialup, making it impossible to blog enjoyably...I think of blogging as the Internet on speed, or as the difference between skiing and snowboarding, and when I have two desktops and three laptops in my house and all are working at the speed of dialup, it's just no fun.

So, I'll be back as soon as Comcast fixes the problem , which should be 10 to noon tomorrow morning. In the meantime, here's another open thread for you.

Substitute teacher Julie Amero tells it this way:

A few students were crowded around a PC; some were giggling. She investigated and saw the kids looking at a barrage of graphic, hard-core pornographic pop-ups.

Amero was nonetheless "convicted of impairing the morals of a child and risking injury to a minor by exposing as many as ten seventh-grade students to porn sites." According to the prosecution, Amero accessed the porn sites deliberately. Amero contends that she was the unwitting victim of malware.

The school district (which may have an incentive to throw Amero overboard to avoid broader blame) assures the parents of Norwich that its filtering software is usually impenetrable, at least now that they've paid the bill to keep it updated. A suspicious mind might wonder whether there's a connection between a fellow teacher's support for Amero and her firing for insubordination.

Amero rejected an offer of probation, believing a jury would understand her innocence. Although she faces 40 years, probation is a sufficient sanction given the impact the conviction is likely to have on her career. Amero will be sentenced in March.

Sen. John Kerry has decided not to run for President in 2008. Smart move. The field is already over-crowded.

In the latest CNN/Opinion Research Corp. poll, 5 percent of Democrats said Kerry was their top choice for the 2008 nomination, and a little more than half -- 51 percent -- did not want him to be the 2008 nominee.

Kerry trailed Sen. Hillary Rodham Clinton of New York, who led the field of Democratic preferences with 34 percent; Sen. Barack Obama of Illinois, with 18 percent; his 2004 running mate, former Sen. John Edwards, who got 15 percent; and former Vice President Al Gore, the party's 2000 presidential nominee, with 10 percent.

I'm close to concluding that Hillary will be the nominee. She's going to get the big bucks from contributors. She's got a team that is honed to the 9th degree. And, she has Bill.

With the Scooter Libby trial beginning yesterday, I forgot to put up the Tuesday open thread. So here's a Wednesday open thread.

If you've got something to report or talk about besides Libby and SOTU, here's the spot.

I know that PPJ is just dying to talk about whether Joseph Wilson was right or wrong in his criticism of Cheney and the Administration, which really has no bearing on the Libby trial, so that topic is fair game here.

I've got the dentist in the morning followed by court in the afternoon, so check in with Firedoglake and Media Bloggers if you're looking for up to the minute Libby trial coverage.

[I'll be bumping this to the top for a few days. Thanks to all who have contributed, I'll be sending thank you emails soon.]

I'm leaving Denver Sunday to attend and live-blog the Scooter Libby trial Monday and Tuesday (Jan. 29 and 30) in Washington, D.C., with a press pass graciously provided by Firedoglake. I'll be live-blogging on their site and cross-posting here.

I'll be returning to D.C. on Feb. 19 to live-blog the trial Tuesday, Wednesday and Thursday (Feb. 20-22)with a press pass from MediaBloggers.org

I'm not being paid for my blogging. I will be paying for these trips (not to mention losing seven working days from my day job.)

The travel expenses will amount to about $1,500.00 for both trips. While contributions from everyone who appreciates TalkLeft are welcome, I'm hoping that particularly you lurkers out there who read TalkLeft almost every day but don't comment or usually contribute, will chip in to help me recoup some of the expenses.

If you'd rather donate anonymously, please use Amazon here.

As always, thanks in advance. Your generosity is really appreciated. As an added incentive, the top three donors will get a free TalkLeft 4th Amendment Subway Tote.

For those of you following President Bush's State of the Union address tonight, here's a CBS article with some excerpts and an open thread to discuss it.

Attorney General Alberto Gonzales is the cabinet member who will sit out in case of a terrorist attack during the speech.

Update: Attytood: Bush to New Orleans, Drop Dead.