Fitzgerald and Libby Seek to Keep Discovery Private

[Update: Reddhed at Firedog Lake agrees and adds valuable additional thoughts.]

Original Post

Taylor Marsh reports on special prosecutor Patrick Fitzgerald and Libby's agreement to keep all discovery provided to Libby out of the hands of third parties and the lawsuit filed by Dow Jones, parent of the Wall St. Journal, to prevent the Court from going along.

As a defense lawyer, I have to say, the right thing to do is keep the material in the hands of the parties. I read Fitzgerald's proposed order (pertinent paragraphs are reproduced below) which is available on Pacer, the federal court docketing system, and it's very similar to ones I get in gang and large drug cases. It even requires the lawyers to return the discovery once the case is over and to keep a record of every person associated with the defense with whom they share it. Why? For one thing, the Government doesn't want unindicted co-conspirators to get their hands on it. For another, they want to protect the identity and safety of cooperating witnesses.

More importantly, from a defendant's standpoint, the material includes witness statements, grand jury testimony and law enforcement reports, all of which are one-sided. None have been tested yet by cross-examination. There have been no rulings as to which of them are admissible and which will be excluded. Release to the public could prejudice the jury pool. And false information has the potential of ruining reputations.

We'll never see the grand jury testimony in this case. It is not admitted at trial except for impeachment purposes. If a witness testifies differently at trial than they did at the grand jury -- or tells a different story at trial than they told an FBI investigator -- then he or she can be impeached with the prior inconsistent statement. But as a whole, they do not come into evidence.

Then there is the issue of classified information which Libby may be entitled to see to prepare his defense, but that's no reason the rest of us should see it.

Criminal trials take place in public. Investigations take place in private. Dow Jones is unlikely to win this round. It's been litigated hundreds of times in the federal courts.

But I still believe Libby's lawyers will file pleadings that lay out the story, and we'll be able to glean things from them, although some will be filed under seal with only redacted versions being released to the public.

What I'd really like to see are the offers of immunity and plea agreements, if any, Fitz gave those who will be testifying against Libby. Hopefully, those will get leaked to us through pleadings.

From Fitzgerald's proposed Order which Libby has signed off on:

1. All materials produced by the government in preparation for or in conjunction with any stage of the proceedings in this case, including but not limited to grand jury transcripts, agency reports, witness statements, memoranda of interview, and any documents provided by the government, excluding trial exhibits, and provided to defendant preliminarily to or in connection with proceedings in the captioned case (hereinafter, “the protected materials”) remain the property of the United States. Upon conclusion of the proceedings in this case, including any appeals, the protected materials and all copies made thereof shall be returned to the United States, unless otherwise ordered by the Court. Copies of the protected materials that contain notations or other work product of counsel shall be destroyed rather than returned. The Court
may require a certification as to the disposition or destruction of the protected materials and copies thereof

2. The protected materials may be utilized by defendant and his counsel solely in connection with the defense of this case and for no other purpose and in connection with no other proceeding. The protected materials and their contents shall not be disclosed either directly or indirectly to any person or entity other than defendant, defense counsel of record in Cr. No.05-394(RBW), persons employed to assist in the defense, or such other persons necessary to the preparation of the defense, including potential witnesses and their counsel only to the extent necessary to prepare the defense, without further order of this Court.

3. Any notes or records of any kind that defense counsel may make relating to the contents of the protected materials shall not be disclosed except as permitted by this Order.

4. The protected materials shall not be copied or reproduced, except so as to provide copies of the materials for use by each defense lawyer and the defendant, persons employed by them to assist in the defense, and such other persons necessary to the preparation of the defense or as to whom the Court may authorize disclosure. Such copies and reproductions shall be treated in the same manner as the original protected materials.

5. Counsel of record for the defendant shall provide all persons provided access to the protected materials and their contents with a copy of this Order, and shall maintain a record of all persons provided access to the protected materials and their contents, and the date that such access was first provided.

6. Defense counsel shall use reasonable care to ensure that the protected materials and their contents are not disclosed to third persons in violation of this Order.

7. Nothing in this Order is intended to prohibit the use of protected materials by the defendant or defense counsel of record in the legitimate preparation of a defense in this case, including in interviewing potential witnesses.

8. Violation of this Order may result in the imposition of civil and criminal sanctions.

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    What I found curious about this story is the lead organization in the suit: Dow Jones (publisher of the Wall Street Journal). While their news reporting skews more liberal than their editorial board does, the fact that they want this info makes me suspicious (as you suggest) that the innuendo and uncorroborated statements made to the investigators and grand jury will tend to exonerate the guilty parties.

    Re: Fitzgerald and Libby Seek to Keep Discovery Pr (none / 0) (#2)
    by cpinva on Sat Dec 17, 2005 at 01:06:08 PM EST
    the problem i have with making all this stuff secret is that i, and my fellow taxpayers, are paying for it. we pay the special prosecutor, police, fbi, cia. we pay for the courthouses, the guards, the materials & supplies, etc. as the person, among many, helping to foot the bill, that gives me ownership rights to the product. as the owner, i certainly have a right to see what i've paid for. at the very least, in the interests of maintaining, as much as possible, an untainted jury pool, after the trial, should there actually be one, is over. of course, i've also helped pay for nuclear warheads. suffice it to say, i'll pass on them, once the're out of service.

    WSJ wants to taint the case, pollute the jury pool, and continue their smears of Wilson. I hope the judge sees that.