Fitzgerald and Libby Seek to Keep Discovery Private

By Jeralyn, Section Lewis Libby Indictment
Posted on Tue Nov 15, 2005 at 05:36:55 AM EST
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[Update: Reddhed at Firedog Lake agrees and adds valuable additional thoughts.]

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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 immunit