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Libby to Rest Without Calling Cheney or Libby

By Jeralyn, Section Lewis Libby Trial Coverage
Posted on Tue Feb 13, 2007 at 01:59:00 PM EST
Tags: Libby Trial (all tags)
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Wow. Ted Wells just announced neither Libby nor Cheney will testify. Evidence ends tomorrow, closings next Tuesday. More at Huffington Post.

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    Libby to Rest Without Calling Cheney or Libby | 9 comments (9 topical)

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    the topic here is Libby (5.00 / 1) (#7)
    by Jeralyn on Tue Feb 13, 2007 at 06:09:00 PM EST
    please keep your comments to the Libby trial here. There's another thread on Wataba. Future comments here on Wataba will be deleted as off-topic.

    So what's next? (5.00 / 1) (#8)
    by MiddleOfTheRoad on Tue Feb 13, 2007 at 09:05:23 PM EST
    The trial really ended in a whimper.  I never thought that Cheney would testify - just too much risk for him, and Cheney thinks he is above the law anyway.  But I was still hoping for Libby to testify, even though the defense had made it pretty clear several days ago that it was not likely that he would.

    I doubt if the jury will think Libby is innocent.  The nightmare scenario is a hung jury.

    I am still bothered by the fact that Novak mentioned Plame's name even though he was warned not to, and adding Plame's name added nothing to Novak's story.  He could just as well have said Mrs. Wilson.  And a few days after his artcle Novak said that the two administration officials came to him and gave him the name.  The FBI suspected Rove and Novak of concocting a cover story.

    I strongly suspect that the there was a coverup, and it was successful.  We can see lots of smoke, but not the fire.  Libby if convicted will appeal and try to run out the clock until pardon time (Nov 2008).

    Will justice be served?  Time will tell.

    The court martial of Lt. Watada (none / 0) (#1)
    by Erroll on Tue Feb 13, 2007 at 03:13:56 PM EST
    Forgive this comment for being off topic but I think that it would be instructive asking you, as you are an attorney, your views on a subject which not only the mainstream media but the [so-called] liberal blogs have seem to have gone out of their way, for some mysterious reason, to avoid covering, [perhaps they felt that the death of Anna Nicole Smith was more newsworthy] and that is the court-martial of Lt. Ehren Watada, which resulted in a mistrial, at the suggestion of the judge to the prosecutors and over the strenuous objections of the defense counsel. This ruling by Judge Head stunned both the prosecution and the defense counsel, Eric Seitz. Seitz  stated that if the government attempted to retry the lieutenant, that he would immediately appeal by informing the court that the government would be in violation of double jeopardy if they were to go ahead and file charges against Lt. Watada. Have you been following what has been happening to Lt. Watada and do you think that the judge erred by claiming that Lt. Watada was not aware of the stipulation that he had signed with the prosecution? Would Eric Seitz be correct, that the government would be guilty of double jeopardy if they attempted to retry the lieutenant?

    Generally speaking... (none / 0) (#2)
    by Deconstructionist on Tue Feb 13, 2007 at 03:24:30 PM EST
      ...when a court declares a mistrial for reasons other than prosecutorial miscounduct, double jeopardy is not a bar to a retrial.

      A declaration of mistrial is not a judgment so it does not usually act as a bar to a subsequent prosecution.

       I'm not intimately familiar with the facts of the Watada case but it sounds from what I have heard that the judge declared the mistrial because of disagreement over the nature of the stipulation. That might raise an interesting question because the prosecution's  "conduct" is definitely involved  (unlike with say juror misconduct or witness misconduct), but I don't know enough to say whether it could be fit within or analogized to prosecutorial "misconduct."

      I also don't know whether military law might have some particular provisions different from the civilian justice system.

    Lt. Watada: daring to say no to the war/occupation (none / 0) (#3)
    by Erroll on Tue Feb 13, 2007 at 03:49:38 PM EST
    Deconstructionist

    I think what is at issue here is the blatant attempt by the judge to not allow Lt. Watada to have presented his defense, which is that the war in Iraq is illegal and immoral. When the parties in the case reconvened after lunch last Wednesday, the first witness to take the stand was to be the lieutenant. All of a sudden, a stipulation which was agreed by both parties the week before and which the judge had literally gone over line by line with Watada, was now suddenly in doubt, not by the prosecution, but by the judge. The judge was attempting to claim that the reason the lieutenant did not deploy with his unit to Iraq was because the stipulation that he had signed supposedly ackowledged that he had deliberately disobeyed an order. When the judge asked him about this [despite the objection by his attorney] Watada replied that he had refused to deploy because he recognized that the war/occupation was ilegal, in violation of international treaties, was an act of unwarranted aggression and which therefore defined crimes against peace, war crimes, and crimes against humanity.  

    I suspect that Judge Head may have become terrified at the prospect of Watada exposing the lies of the Bush administration while being under oath. As a law professor at the Univ. of Washington has said, a judge cannot decide to bring a trial to a halt simply because he feels like it. It will be interesting to see if the military decides to pursue this case.

    Parent

    again, speaking generally... (none / 0) (#4)
    by Deconstructionist on Tue Feb 13, 2007 at 04:06:47 PM EST
      such "justification" defenses are not allowed. Older folks (or people who went to law school) may remember the "Ploughshares" case and other similar cases from the Vietnam era. (Protestors, beating on missiles, destrying SS offices etc.,  in acts of protest

      The law does recognize a "lesser harm" defense in certain narrow circumstances (e.g., I had to burn down the house without permission because it was the only immediately available option to keeping the fire from consuming the whole block, so I should be acquitted of arson...).

      However, where the act was a protest against things the defendant believed to be illegal/immoral and the defendants attempted to stretch the justification theory, courts have to my recollection uniformly rejected the argument.

       The ONE thing that might distinguish Watada's case from these is the twist that he is arguing that he was faced not merely with a choice of between doing nothing and violating "Law A" (requiring him to report for duty), but in his argument a choice between either following "Law A" and violating "Law B" (the duty to refuse to obey orders to engage in illegal acts) which is directly applicable to him whereas in the vietnam era cases the protestors were obviously not able to make any meritorious argument that any law required them to bang on missiles or burn draft board offices.

      Unfortunately, I think he is unlikely to prevail with that theory because he doesn't get to decide the war is illegal and that he would be violating his duty by reporting.

      If he truly believes in his cause he's probably willing or evenb eager to take whaterver punishment he may get (civil disobedience is pretty lame without that), but if he really wanted to "follow the law" he probably needed to seek an injunction prohibiting enforcement of his report for duty order and to have made his "illegal war" argument in that context. I don't think he would have had much of a chance in that forum either, but we are not likely ever to see any court rule military personnel can simply ignore orders based on their personal belief it the entire war is illegal and not merely that a certain very specific action would be illegal. no court is going to be blind to the chaos such a decision would cause.
     

    The I forgot defense... (none / 0) (#5)
    by Aaron on Tue Feb 13, 2007 at 04:47:37 PM EST
    ... creates reasonable doubt in the mind of the jury and Libby walks.  Is this what's going to happen?

    How pathetic, our government is hijacked by a renegade president who takes us to war without just cause, and the best we can come up with is to charge one of his lackeys with perjury, and then he gets acquitted?

    What a joke.

    Did the judge outfox himself? (none / 0) (#6)
    by Erroll on Tue Feb 13, 2007 at 05:04:41 PM EST
    Deconstructionist said that "he [Lt. Watada] doesn't get to decide the war is illegal..." What you failed  to address is the point that I and the law professor at the U. of Wa. made, which is that a judge cannot capriciously decide, not on a motion made by the defense, but by the judge himself, to bring a trial to a halt for absolutely no valid reason whatsoever. As I had previously mentioned, the stipulation that the lieutenant had signed had been agreed upon by both the prosecution and the defense. In addition, the judge had literally gone over this document earlier in the week line by line with the lieutenant. All of a sudden, the judge was trying to claim that the lieutenant had admitted his guilt by signing the stipulation, which the lieutenant had repeatedly said was not the case. Instead, Lt. Watada emphasized that he had refused to deploy because he believed that the war/occupation in Iraq is illegal and immoral. Even the prosecution admitted that the lieutenant was not admitting that he was pleading guilty to the charges when he signed the stipulation. If the government elects to bring Lt. Watada up on the same charges, missing movement and conduct unbecoming, look for Watada's attorney, Eric Seitz, to file a dismissal with prejudice with the appelate court. I suspect that Judge Head persuaded the prosecution to ask the court for a mistrial [so much for any pretense that Judge Head was presiding over this trial in an objective manner] without realizing that it might end up severly hampering the prosecution in attempting to go after the lieutenant again in the future.

    i caught this on the morning's news (none / 0) (#9)
    by cpinva on Tue Feb 13, 2007 at 10:18:00 PM EST
    i thought it was quite interesting. were i a member of the jury, two thoughts might cross my mind:

    a. the gov't laid out such a poor case, i already have reasonable doubt, mr. libby not testifying makes no difference.

    b. why didn't the man testify in his own defense?

    it should be interesting to see how this jury responds.

    Libby to Rest Without Calling Cheney or Libby | 9 comments (9 topical)

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