Who Will Deliver for Fitz?

Noted jurist John Henry Wigmore described cross-examination as the "greatest legal invention ever invented for the discovery of truth." (5 J. Wigmore, Evidence §1367 (J. Chadbourn rev. 1974.) Put another way, it's a great tool for ferreting out untruths in the courtroom.

It's Fitzgerald's job in the Libby case to prove beyond a reasonable doubt that Scooter Libby lied to federal agents and the grand jury and obstructed justice.

It's the defense's job to test that proof.

Patrick Fitzgerald has placed a lot of faith in Judy Miller and Matthew Cooper and their less than perfect memories and note-taking skills. The defense chipped away at both today. There were no Perry Mason moments, but neither came across as 100% sure of what Libby told them.

Judy Miller did better today than she did yesterday, but the defense got her to acknowledge that she couldn't be 100% certain she first heard of Valerie Plame Wilson from Scooter Libby. Cooper acknowledged his notes don't back up his current memory that Libby responded with something to the effect of " I heard that too" when he asked him whether Joseph Wilson's wife had a role in selecting him for the Niger trip. Not only wasn't the statement in his notes, it wasn't in the memo he sent in to Time following his conversations with Libby.

It's a good thing for Fitzgerald that reasonable doubt doesn't mean 100% certainty. But I have a queasy feeling that unless Libby takes the stand and is not credible in his denials, neither Miller nor Cooper's testimony will bring it home for Fitz.

That leaves Ari Fleischer and Tim Russert. Former Time reporter John Dickerson disputes Ari's version although the jury may not hear from him, unless he's the mystery witness discussed at the end of court today -- see's Marcy Wheeler's live-blogging at Firedoglake for more on the mystery witness.

In my mind, this is all going to hang on Libby's testimony. But, will we hear from him? Ted Wells was smart enough in opening not to promise the jury he would testify. If every witness has holes in their memory, does he need to put Libby on the stand, or is his better move to rest without Libby's testimony, telling the jury there's no need to put on a defense because the Government hasn't proved its case? Does he need to call Cheney? Does he need to call any witnesses at all?

The jails are filled with people who thought if they could only tell their story to the jury, the jury would see it their way. Ask Bernie Ebbers in the WorldComm case, who is now serving a 25 year sentence or Enron's Jeff Skilling, also doing a double digit sentence.

If Libby testifies, he is most likely to be the witness that delivers for Fitz, not Ari, Miller or Cooper.

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    Confused (4.00 / 1) (#5)
    by annburns on Thu Feb 01, 2007 at 12:24:47 AM EST
    I have to say I am confused by your perspective. I know you are defense lawyer, but you seem to be buying into the defense argument that anyone without a 'perfect' memory validates Libby's bad memory defense. But Libby isn't charged with having a bad memory. He is charged with making up lies wholecloth to the FBI and GJ to cover up the fact that he leaked Plame's identity.

    Fitzgerald doesn't need a perfect witness with a 'perfect' memory. He has a mountain of evidence on his side including witnesses, notes, emails, etc. In short ... everybody else has to be lying and there has to be a conspiracy to make Libby's story believable. You buy it. I don't. We'll see what the jury thinks.

    I'm with you (none / 0) (#7)
    by LarryE on Thu Feb 01, 2007 at 01:22:38 AM EST
    The sheer mass of evidence saying that Libby discussed Plame well before he later claimed to have heard of her would seem to make questions of 100% reliability irrelevant.

    Consider it mathematically: Suppose you have three witnesses each of who says Libby discussed Plame before he said he knew of her. Suppose each of them is only 90% sure of their notes and/or memory, i.e., there is a 10% chance they are wrong. (Remember that only one of them needs to be right to prove Libby lied.) The chance of all three being wrong are 10% x 10% x 10% = 0.1%, or one chance in 1000.

    Don't go all "unreliability of eyewitnesses" on me, either. We're talking about a basic fact: Did Libby know about Plame before such-and-such a date? I know the actual legal issues are a little more complex than that, but the overall argument about the very low probability that all the incriminating information could be wrong remains.


    Confused (none / 0) (#11)
    by Screwloose on Thu Feb 01, 2007 at 08:16:12 AM EST
    The Economist magazine talks about the frame-up or 2 wrongs make a right opening statement by the defense:

    When investigators came looking, Mr Libby claimed that he was just an ear, not a mouth.

    Mr Cheney pondered the matter and expressed his intent to support Mr Libby in a brief note. "Not going to protect one staffer and sacrifice the guy who was asked to stick his neck in the meat grinder," he wrote.

    So, if the defense also contends that Libby's the mouth[piece] who stuck his neck in the meatgrinder for Rove [?who IS Libby's client?], who's ear Cheney [?VP's lawyer, and then VP?] spoke into, doesn't the defense HAVE to prove there's a "crime-fraud exception" to the attorney-client privilege [?executive privilege?], so that Libby can testify he's just an ear . . .

    Huh? I'm more confused than ever.


    Confused (none / 0) (#12)
    by Screwloose on Thu Feb 01, 2007 at 08:46:58 AM EST
    And I'm also confused how it is that Libby canNOT testify : Doesn't he have to explain his wiping his copies of documents AFTER [?] his affidavits to WH Counsel they didn't exist, the day before meeting the FBI. Isn't this consciousness of guilt [admission by guilty conduct? Doesn't he have to claim a governmental estoppel [?entrapment by estoppel?] defense, and, as an element, prove it was authorized by the person with power to authorize it [?VP? ?P?]. Isn't this what a frame-up defense means?

    Or, instead of a I'm a dumb CEO defense, is Libby saying I'm the dumb lawyer who got duped by a smart CEO as his defense? And where does his I misremembered a reporter for the CEO evidence fit into this?

    Double-Huh. . . .  


    Confused (none / 0) (#13)
    by Screwloose on Thu Feb 01, 2007 at 09:42:23 AM EST
    On his governmental entrapment defense, Libby believed the President's clemency power after-the fact implied it could be before-the-fact - - Libby never heard of either Nixon or Clinton, or believed the failure to impeach Clinton meant Clinton overruled Nixon - - and Libby believed Cheney's note lie-to-media [Americans who follow the news] was a transactional immunity contract for false statements/perjury/obstruction which Bush authored???

    Libby's cross-examination of Cheney may be Fitz's best witness if the frame-up defense introduced in Libby's opening is going any further in the trial, right?


    IIRC (none / 0) (#1)
    by robrecht on Wed Jan 31, 2007 at 11:06:59 PM EST
    "Judy Miller did better today than she did yesterday, but the defense got her to acknowledge that she couldn't be 100% certain she first heard of Valerie Plame Wilson from Scooter Libby."

    Is that really a great accomplishment for the defense?  Didn't Judy Miller already claim in her NYT account that she didn't remember from whom she first heard about Valerie Plame?  Or am I not remembering that correctly?

    I'm not a lawyer (none / 0) (#2)
    by MiddleOfTheRoad on Wed Jan 31, 2007 at 11:16:06 PM EST
    I see you speak as a defense attorney.

    I myself think that it is better to free a potentially guilty person than to imprison a potentially innocent person.

    But isn't Libby's problem that he could not have forgotten about Plame considering how much he was involved in discussions about her.  Cooper forgetting exact words is less important than the summation of all events that happened then.  I mean each witness by itself may leave some doubt, but when taken taken together they may not.

    Which is why I think Libby's Grand Jury testimony will be what delivers it for Fitz.

    Of course I am biased.

    the issue (none / 0) (#14)
    by Deconstructionist on Thu Feb 01, 2007 at 10:01:19 AM EST
    isn't whether he "forgot about Plame." the issues are whether the specific statemants at issue were false (which appears to me to be affirmative, whether they perained to a material matter (also affirmative in my opinion) AND wherther he intentinonally made those statements knowing they were false when he made them. A person can recall an event or a series of events but "misremember" certain details of the sequence of events. Can Libby sell that here? I wouldn't bet either way right now.

    Whaaaa (none / 0) (#3)
    by Maggie Mae on Wed Jan 31, 2007 at 11:21:24 PM EST
    You're breaking my heart, Jeralyn.  

    Question, is Fitz calling the extra witness?  If yes, then I have another question.  If Dickerson's called because of that article he wrote disputing Ari's testimony, why would Fitz call him?  So confused.

    No Idea (none / 0) (#4)
    by Jeralyn on Wed Jan 31, 2007 at 11:41:08 PM EST
    I have no idea who the mystery witness is.  It just seemed like both sides had come to an agreement about it. It might be someone on the defense list that needs to be called out of order for scheduling reasons.  It might be someone they both want to question.

    It's a longshot it's John Dickerson.  But, if I were Libby's lawyers I'd want to call him because he contradicts Ari Fleischer.  Maybe it's David Gregory.  Maybe it's Dick Cheney who can't be available during the latter part of next week when Libby begins his case.  Maybe Fitz now wants to call Cheney. I truly have no idea.

    As to the memory issue, as I've said before, there are two memory defenses.  One pertains to the Government witnesses and is a reasonable doubt argument. If Miller and Cooper can't be certain about what Libby told them on the dates charged in the Indictment, that alone could be a reasonable doubt as to whether Libby intentionally lied or made a material misstatement.  The second concerns Libby's memory...that's the defense that requires him to testify.

    If the defense feels the government failed to prove that Libby intentionally lied or made material misrepresentations, they can rest without putting on any evidence and make a reasonable doubt argument.

    Since Wells asked the judge to let him begin his case on Weds. instead of Tuesday, I don't think that's how they will proceed.  The client also has a say in this.  Sometimes when a defendant pays $3 million for a defense, they expect more bang for their buck than just resting at the end of the Government's case.  Sometimes it's smarter to rest at the end of the government's case rather than put on a defense.

    Until Tim Russert testifies and the jury hears Libby's actual grand jury testimony, I can't say whether that would be a good call or not.

    I can say the odds are Libby won't come off as he thinks he will, particularly after Fitz crosses him.  But he'll probably want to tell his story.  The decision whether to testify in one's own defense is one of the few decisions the courts hold is ultimately up to the client, not the lawyer.

    I suspect Libby is bent on not only getting acquitted but also clearing his name. He probably sees thae latter as being possible only if the the jury acquits after hearing his side of the story.

    Sometimes you have to settle for the best chance of acquittal and shoot for avoiding jail and not worry about the reputation so much.  

    Obviously Lying (none / 0) (#6)
    by squeaky on Thu Feb 01, 2007 at 01:00:08 AM EST
    I think Libby is in trouble. There is really strong motive. Discrediting Wilson's story was was a big priority for the executive branch. That the wife sent him, and that Cheney knew nothing about it contrary to Wilson's allegation was the one two punch they hoped would to break 'the democratic legs' of the story.

    The fact that they were outing a covert agent was secondary and trivial compared to how that detail, his cia wife sent him because she could, would taint Wilson as a partisan operator and blow his credibility.

    Libby was a principal disseminator of the smear and discussed it several times before Russert didn't tell him. A reasonable person looking at the timeline would have to conclude that he is lying. Arrogance is the neocons' achilles heel. Libby thought he could lie and get away with it. I guess it is because Aspens are so deeply connected to one another he believed that the chain of deceit could never be broken.  

    Wells' trick of showing that none of the witnesses' memory is 100% falls short for me. The memory lapses he has demonstrated all the witnesses have so far, are very different and quite minor compared to the memory lapse Libby claims to have had.

    Yes, everyone has holes in their memory, but no one could forget the most juicy bit of a very important strategy devised to knock out a major competitor. It is not something that you ever forget unless you get brain damage or experience a major trauma.

    Dickerson and Cooper (none / 0) (#8)
    by ding7777 on Thu Feb 01, 2007 at 06:27:05 AM EST
    Doesn't Dickerson support Cooper's contention that Rove told Cooper?

    If Cooper wanted confirmation, it makes sense that Cooper would ask about Plame when he talked to Libby.

    Fitzgerald's core argument? (none / 0) (#9)
    by sphealey on Thu Feb 01, 2007 at 07:07:15 AM EST
    > If the defense feels the government
    > failed to prove that Libby intentionally
    > lied or made material misrepresentations,

    As far as I can tell (as a layman) from the (fantastic) liveblogging, Fitzgerald hasn't actually presented his case as to what Libby did yet that got him indicted.  At what point does that happen?


    It's the old saying that... (none / 0) (#10)
    by Deconstructionist on Thu Feb 01, 2007 at 07:24:17 AM EST
    The only thing worse than not having the defendant testify is having him testify. Juries are instructed that a defendant is not required to testify, or even present evidence, and may rely entirely on the presumption of innocence and that no negative inference should be drawn from that decision. However, I don't think many people truly believe that many, if not most, jurors do not draw such an inference. The instruction basically asks people to behave differently than they do in every other aspect of their life and suppress their natural tendency to want an explanation from the horse's mouth (or other end as the case may be). You know that in every case not testifying is worse than testifying very well in your own defense. The rub is that is very difficult to testify very well and often those most assured of their ability to do it actually make poor witnesses. In all cases, but especially one where truthfulness is a direct issue, the defendant can seal his fate by getting caught in what the jury believes to be a lie and not necessarily one that goes to the heart of the ultimate issue. Personality, also is a huge consideration and, at least to me, Libby is something of a cypher. We know what he is but we really have very little with which to assess who he is and how a jury might relate to him as a person.