Can Team Libby Pull It Off?

[Cross Posted at Huffington Post]

The Libby trial is going out with a whimper. PlameGate followers, like Jane Hamsher of Firedoglake, feel cheated. Without testimony from Vice President Cheney or Scooter Libby, there's no bang for the buck.

"When Ted Wells came back from lunch today and announced that he had released Dick Cheney as a witness I was damn near brokenhearted. After all that, and Shooter lets me down. Did he not want to testify on Libby's behalf, did Team Libby decide he could do more harm than good, or did they never intend to call him at all? We'll probably never know."

For those who believe criminal trials should be a search for the truth, I sympathize. But that's not the purpose of a criminal trial. A criminal trial is simply a testing of the evidence. The only issue is whether the prosecution can prove its charges (pdf) beyond a reasonable doubt.

Scooter Libby is not required to prove he didn't lie or obstruct justice. All he has to do is raise a reasonable doubt in the mind of the jurors that he did.

The test for reasonable doubt is not a simple weighing of the evidence, after which the jury decides which side to believe more. That's the test in a civil case where the standard of proof is a mere "preponderance of the evidence."

In layman's terms, in a criminal case, if both sides' theories and arguments sound plausible, that alone is a reasonable doubt and the jury should acquit.

Libby's trial was never about whether the Administration ginned up excuses to go to war in Iraq. At this point in time, most rational people know it did. The trial was never about whether Libby outed CIA agent Valerie Plame Wilson to Robert Novak. That may have been the genesis of the criminal investigation but we knew months before the trial began that former Secretary of State Richard Armitage was the careless leaker, not Libby.

This trial has been about whether Scooter Libby lied to FBI agents and the grand jury and thereby obstructed justice. That being said, I think Team Libby made a serious mis-step in the beginning. Whether they can recover now is anyone's guess. They should have learned from the memory experts in eyewitness misidentification cases -- the eyewitness is not lying, he's simply mistaken. Team Libby should not have gone out on a limb in opening argument and claimed the Administration threw Libby under the bus to save Karl Rove. It shouldn't have argued that Tim Russert was biased against Libby. They didn't establish either one.

All Team Libby had to do was bring out each witness' memory lapses -- every fact witness had them -- and then argue Scooter had them too. Memory is fallible and imperfect. Scooter, like Miller, Cooper, Grossman, Fleischer and Russert, all of whose testimony included an "I don't recall" at some point, was mistaken, not lying.

If Libby were simply mistaken, he did not knowingly or intentionally lie and his mistaken recollections did not obstruct justice. And, if the jury isn't sure whether he lied, even if they think he might have, that's not enough for conviction. It's a reasonable doubt.

Can the jury really be sure, "beyond a reasonable doubt" kind of sure, that Miller, who forgot having an in-person meeting with Libby -- their first one -- on June 23, until she found a notebook in a shopping bag under her desk; that Cooper, whose note-taking was filled with incomplete sentences and who consistently typed the wrong characters and suggested his current recollection is more reliable than his dubious notes and who forgot to include his most damning statement about Libby in his initial e-mail to Time; that Ari Fleischer, who failed to correctly identify Walter Pincus as a reporter for whom he may have been a source about Valerie Plame Wilson and her purported role in sending Joseph Wilson to Niger; and that Tim Russert who once apologized in a letter to the editor of a Buffalo newspaper for being wrong about his recollection about a conversation, are correct in their memories while Libby was not only wrong but lying in his recollection?

Viewing the case through that lens, I see reasonable doubt. There's just one hanging thread. It's that Libby told the grand jury when he spoke to Matthew Cooper on July 12, he didn't even know Joseph Wilson had a wife (pdf).

a. Testimony Given on or about March 5, 2004 Regarding a Conversation With Matthew Cooper on or About July 12, 2003: Q. And it's your specific recollection that when you told Cooper about Wilson's wife working at the CIA, you attributed that fact to what reporters -

A. Yes.

Q. - plural, were saying. Correct?

A. I was very clear to say reporters are telling us that because in my mind I still didn't know it as a fact. I thought I was - all I had was this information that was coming in from the reporters.

. . . .

Q. And at the same time you have a specific recollection of telling him, you don't know whether it's true or not, you're just telling him what reporters are saying?

A. Yes, that's correct, sir. And I said, reporters are telling us that, I don't know if it's true. I was careful about that because among other things, I wanted to be clear I didn't know Mr. Wilson. I don't know - I think I said, I don't know if he has a wife, but this is what we're hearing.

To me, that's the mojo Ted Wells and Bill Jeffress need to work in Libby's closing. If they can get past that statement and drop their unproven claim of "I was left out to dry to save Karl Rove" from their closing argument and rise above trying to cast Libby as a victim, they have a chance.

No one on this jury is going to buy Libby as victim, although they may conclude he was no more mistaken than any other witness. Once the jurors try to figure out motive, even though it's not a necessary element of the charged crimes, I call a draw. Fitz just didn't establish motive beyond a reasonable doubt.

Now, let's get to the real issue making many of you despondent: Karl Rove walked. The only solace I can offer is this: Richard Armitage got the same result on his own, without a lawyer. Hopefully, Rove will be in debt to Robert Luskin for years to come.

As to not calling Cheney as a witness, I don't read too much into it except this: Libby reportedly forked over $3 mil plus for his defense. That allowed enough money for focus groups. I wouldn't be surprised if the focus groups found Cheney to be such a polarizing figure that Team Libby concluded that any good Cheney would do for Libby on substance would be completely overtaken by the jury's loathing for him personally. If that's the case, while Libby may walk, the country has won.

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    A Rational Jury would, I believe, Convict Scooter (5.00 / 1) (#14)
    by Herman74 on Wed Feb 14, 2007 at 12:37:59 PM EST
    Let me state at the outset here that I am not a lawyer.  Consequently, I do respect Jeralyn's experience in these matters.  Nonetheless, it would appear to me that Jeralyn's claim: "All Team Libby had to do was bring out each witness' memory lapses -- every fact witness had them -- and then argue Scooter had them too," is not completely sufficient.

    Yes, everyone has memory lapses.  Nonetheless, we can quite likely all agree that memories are generally accurate.  Team Libby's success in showing, for example, a single case where Mr. Russert had a memory lapse about a completely unrelated issue leads us to the question: How many times did the polite Mr. Russert NOT apologize for having a memory lapse.  Of course, the defense cannot bring this up (and would not bring this up) but I daresay that the times he did not have to apologize are far more frequent that the one time that he did.  Yes, the defense brought up the fact that Mr. Fleischer forgot one of the people that he outed Ms. Wilson too.  He did however remember at least one other (David Gregory), as well as some very distinct points about his conversation with Scooter.  (Didn't he use words to the effect of it being "hush-hush"?)

    In addition, the sheer numerical preponderance of those testifying against Scooter is something to judiciously  considered.  If a thousand people had testified "Scooter told me about Ms. Wilson," and the defense was able to come up for each of these witnesses a single case somewhere where his/her memory failed, how on earth could a  reasonable conclusion be "I have reasonable doubt that Scooter talked to anyone about Ms. Wilson"?  Now, of course, we don't have a thousand, but we do have several.  Several against a single Scooter.

    Scooter would have us believe that he would forget what his own supervisor (Darth Cheney) told him, but would remember what a reporter told him, all this around a time where there seems to have been some concerted effort in the Bush Administration to strike back at Joe Wilson.  Does this strike you as credible?

    Scooter would have us believe him rather than Russert.  And yet, Scooter has more motive to lie than did Russert.  Didn't The Chimp indicate a desire to fire anyone found out to be involved? (Now, of course, we know Bushie was lying, but Scooter might not have known that at the time).  And hasn't Scooter testified to having lied already to other people (did he lie about not knowing Mr. Wilson had a wife?).

    And it just isn't memory recollection that is an issue here.  How could Russert have possibly known anything about Mr. Wilson's wife in order to bring up the matter with Scooter?  Would Team Libby have us believe that reporters at competing news agencies blab to each other all the time, but then ultimately refuse (except for Novak) to publish the story?  That is, they would have a problem with sharing classified information with the public, but not amongst themselves?

    And why if Team Libby is going to claim that he had a faulty memory won't Libby himself testify under oath that he was so busy that this contributed to his faulty memory?

    I thought Fitz had a powerful case against Rove.  But Fitz chose not pursue it. To me, that suggested Fitz isn't satisfied with just a 70 percent chance of winning.  He wants it to be at least 90.

    There are two kinds of mistakes a jury can make.  One would be to convict an innocent person.  But the other would be to let a guilty person go free.   A jury cognizant of this would realize that having to be convinced beyond a reasonable doubt does not  mean having to be convinced beyond ALL doubt.

    patterns (4.00 / 1) (#3)
    by orionATL on Wed Feb 14, 2007 at 08:14:25 AM EST

    your explanation of how criminal trials work was very helpful to me. i guess, in the end, a trial is not about "what is the truth" but rather what limits are there on the power of the state to take away liberty.

    one thing i don't see addressed in your explanation is that, while libby's lawyers demonstrated that each witness had memory lapses,

    they did not address the cumulative effect of three or four witnesses, imperfect memories or not, saying that libby mentioned plame in some way.

    and then fbi and transcripts indicating he said he did not mention this.

    i don't have any idea how juries work, but if i'm sitting there  i might accept that miller, et al had imperfect memories  - although, personally, i would be more likely to think they had motives of their own to lie -

    but i might also accept that three or four witnesses saying libby told them the same thing would suggest libby was saying them intentionally as part of a plan to discredit wilson. it would be hard for me to believe that an intense campaign by cheney and libby  would be something that libby would forget "in the press of business". that was, after all, his "business" at the moment.

    do jurors prove to be rather unsophisticated in their reasoning? i guess it only takes one such person in a criminal trial.

    It's impossible to generalize... (none / 0) (#7)
    by Deconstructionist on Wed Feb 14, 2007 at 08:36:40 AM EST
      ...about how juries think and act. Every jury is, of course, unique. However, my opinion after well over 100 trials of all types is that people, including many lawyers, too often give juries far too little credit and attempt to rationalize every verdict they dislike as juries being fooled, misled, etc., by lawyers.

      My experience is that jurors are usually diligent and rational and no less able to perceive and weigh  the strengths and weaknesses of the parties' evidence and arguments than the people who annoint themselves critics.

     Jurors also have the singular advanatage of hearing and seeing all the evidence and of being aware of the court's instructions as to the law. i'm often amazed at the gall of folks who feel able to pronounce that a case was wrongle decided with just a cursory second-hand knowledge of the facts and often no real understanding of the law the jury was instructed to apply.



    I have to disagree (4.00 / 1) (#4)
    by annburns on Wed Feb 14, 2007 at 08:17:00 AM EST
    "In layman's terms, in a criminal case, if both sides' theories and arguments sound plausible, that alone is a reasonable doubt and the jury should acquit."

    I realize you are coming at this as a defense lawyer - but is Libby's story really plausible? He got told by Cheney, then 'forgot', and learned it new from Russert? You can look at flaws in each of the prosecution witnesses' but taken together they present a mountain of evidence against Libby. Evidence that Wells et. al. hasn't addressed directly. If you believe that Libby is plausibly telling the truth - then Cooper, Russert, Miller, Ari, Martin, Grossman, every prosecution witness, is 'mistaken'.

    God knows what the jury will do - you never can tell, and I was shocked with OJ and Michael Jackson verdicts. However some of the juror questions seem to indicate cynicism for the defense's case.

    Wilson's wife (2.50 / 2) (#10)
    by Tom Maguire on Wed Feb 14, 2007 at 09:08:25 AM EST
    I'm confused - in the excerpt above, Libby is telling the grand jury that he told Cooper he didn't even know if Wilson had a wife.  Is there some other place where he tells the grand jury that Libby himself did not know if Wilson had a wife (I thought it was in response to a grand juror's question).

    As to this:

    We know Russert did not tell him about Plame -- there' no lack of credibility  for Russert there -- he has nothing at stake, no bias toward lying to hurt Libby.

    I agree he had no bias (or at least, that that is a weak argument).

    However, when the investigators came calling in Nov 2003, what would happen if Russert said, "yeah, I told Libby about Wilson's wife just as he described"?

    A highly likely outcome would be that Russert would be subpoenaed and asked to reveal his source (this was a leak investigation, after all).

    So might Russert have told a "truth" that sent them away?  A "truth such as "I did not know about Valerie Plame of that she was a CIA operative* so I could not have passed that to Libby".

    My paraphrase (with emphasis added) mirrors what Russert said in the NBC press release, his affidavit to the judge in 2004, and in every public statement prior to the trial.

    But it does not exclude Russert passing along a rumor (not something he "knew") about "Wilson's wife (not "Ms. Plame") working at the CIA (but maybe not as an "operative").

    IF Russert worked that stunt successfuly in 2003 and 2004, his jaw must have dropped when he found that the leak investigation had become a perjury investigation and he was a star witness.

    So - could the most trusted man in news admit that he had misled the investigation for two years?  Or might that hurt his ability to keep his job, tell stories about the Catholic school nuns, and write about Big Russ?

    Folks can form their own opinion.  But please don't tell me he had no motive to lie.

    Wow (none / 0) (#11)
    by squeaky on Wed Feb 14, 2007 at 10:59:32 AM EST
    So - could the most trusted man in news admit that he had misled the investigation for two years?  Or might that hurt his ability to keep his job, tell stories about the Catholic school nuns, and write about Big Russ?

    America trusts the MSM? More like it is that America has a very, very, very, short attention span.

    Russert's successful career is not based on his adherence to verity, it is based on his skills as an entertainer.


    I don't buy this (none / 0) (#24)
    by MiddleOfTheRoad on Thu Feb 15, 2007 at 12:20:59 AM EST
    I don't buy Tom Maguire's argument.

    Lets for the sake for argument agree with Tom Maguire and assume that Libby was telling the truth.  That meant that not only Russert told Libby about Wilson's wife, but also Russert told Libby that all reporters knew about it, and Libby was shocked to hear it.

    If all reporters knew about it then Russert should not have been afraid of a subpoena when talking to the FBI in 2003.  Furthermore there was likely enough fudge factor in his initial FBI statement that he could have easily corrected it after he fought the subsequent subpoena in 2004.

    And here is the clincher.  Libby is shocked to learn from Russert that all reporters know about Plame, so a couple of days later he stratezizes with Cheney, DRUM ROLL - whether they should leak info about Plame to reporters.

    It does not add up even if it was Libby versus just Russert.  In reality it is Libby versus many people of which Russert is only one.

    Sorry Maguire.


    how about................. (none / 0) (#1)
    by cpinva on Wed Feb 14, 2007 at 06:08:12 AM EST
    team libby figured they'd already established sufficient "reasonable doubt", by virtue of the various other witness' claims of not remembering, that putting cheney on the stand was a loss leader?

    as you note, he's such a polarizing figure, why put him up, unless it's absolutely necessary? in this instance, they figure it isn't. same with libby himself.

    it remains for the jury to tell us whether this strategy backfires or not.

    Broadly agree (none / 0) (#2)
    by Tom Maguire on Wed Feb 14, 2007 at 07:02:04 AM EST
    Team Libby should not have gone out on a limb in opening argument and claimed the Administration threw Libby under the bus to save Karl Rove. It shouldn't have argued that Tim Russert was biased against Libby. They didn't establish either one.

    I mostly agree - I took a stab at explaining the likely defense strategy behind the "Rove threw me under the bus" ploy in your comments at the time, and I may have said it was a good idea (I'm afraid to go check), but my current memory is that I tried for an explanation without endorsement.

    At this point in the trial it does not look like a theme they pushed hard and I don't see how it helped them.

    As to Russert's bias against libby - I agree, that was silly.  Their much stronger theme is that Russert filed a misleading affidavit with the judge, had a cozy deal with Fitzgerald, and would be exposed to tremendous public scrutiny (including likely loss of job) if he admitted at this late date that his initial testimony had been carefully phrased to conceal from investigators the fact that he and Ms. Mitchell had a live Plame source.

    Based on that theory, I have reasonable doubt about Russert - there is no question in my mind he had a strong motive to lie; that is different, of course, from saying I believe he did lie.

    So, my question - is the defense better off picking one theory (e.g., "everyone forgets") and pushing that, or should they push two theories - everyone's memory was flawed, and folks like Russert also have their own agendas to lie?

    Should the defense throw spaghetti at the wall, or  just serve one carefully prepared dish?  I can see why, at trial, you might push several to see how they work, but what is a better strategy for the Big Close?

    I disagree too. (none / 0) (#5)
    by TomBurka on Wed Feb 14, 2007 at 08:35:14 AM EST
    Libby does not sound very truthful in his grand jury testimony.  He pauses, he drops his voice when he is lying.  His claim that he did not know that Wilson had a wife, coupled with his claim that Russert told him about Plame, I believe completely sinks him.  Why say Russert is the one who told me instead of "I don't recall"?  Why say I did not know he had a wife when he might have said "I don't know"?  He gave plenty of "I don't recall" answers (that are fishy if you ask me) but not on these key questions for which he is charged with perjuring himself.  We know Russert did not tell him about Plame -- there' no lack of credibility  for Russert there -- he has nothing at stake, no bias toward lying to hurt Libby.  I think the case is airtight.

    What the jury will do, no one knows.

    TomBurka (none / 0) (#6)
    by TomBurka on Wed Feb 14, 2007 at 08:36:24 AM EST
    I just wanted to add that the charges of lying to FBI agents won't hold up, I think.  The FBI agent I heard about tesifying semmed like a terrible witness for the prosecution.

    Shoe, foot, reversed (none / 0) (#8)
    by jarober on Wed Feb 14, 2007 at 08:50:12 AM EST
    Anyone who disliked Starr's ever expanding investigation should dislike the Libby trial, for exactly the same reasons.

    Huh? (5.00 / 1) (#12)
    by TomStewart on Wed Feb 14, 2007 at 11:29:57 AM EST
    Sorry Jabor, I don't get this one. Anyone who hated a political witch hunt should hate a meticulously built case by a professional proscutor?



    Likewise (none / 0) (#9)
    by Peaches on Wed Feb 14, 2007 at 09:01:57 AM EST
    Using your logic, Jar, Someone who loved the Starr investigation should Love the Libby Trial.

    I'm just speculating here, Jar, But I got the feeling you loved the Starr ivestigation.


    jarober's just upset (none / 0) (#13)
    by cpinva on Wed Feb 14, 2007 at 12:19:45 PM EST
    because no republican has ever gotten a BJ from a low level non-employee of their's. :)

    the sham charges (none / 0) (#15)
    by diogenes on Wed Feb 14, 2007 at 12:46:47 PM EST
    Ayn Rand said that the power of government lies in it's making so many rules that everyone is guilty of something, and then the government cashes in on guilt.  
    If we all testified for days in front of grand juries and had someone pore over our tax returns, I'm sure that most of us could have some sort of perjury and tax evasion charges put against us.  The government had better need a good reason to bully people, such as imminent danger (e.g. Al Capone).  Libby just isn't that dangerous, and he didn't even leak secret information, and Fitz hasn't even bothered to indict the actual leakers.

    Are you suggesting that the rule... (5.00 / 1) (#17)
    by Deconstructionist on Wed Feb 14, 2007 at 12:57:05 PM EST
      ...against lying under oath during criminal investigations should be repealed because it's a rule government enacted just to harass people and is unfair and wrong?

       Or, are you arguing that it should only be very selectively enforced and that an  instance where an extremely high-ranking government official lies under oath in an investigation relating to matters of national security is not serious enough to warrant enforcement?

      Assuming the latter is what you meant, who short of  a virtual Al Capone should ever be prosecuted for lying under oath during a criminal investigation?



    But, but, but... (none / 0) (#16)
    by Che's Lounge on Wed Feb 14, 2007 at 12:49:18 PM EST

    Beyond reasonable doubt (none / 0) (#18)
    by MiddleOfTheRoad on Wed Feb 14, 2007 at 03:34:44 PM EST
    I am just a layman, but given the description of "beyond reasonable doubt" as mentioned in reference to this case, it seems to me that most cases should be thrown out.  Except those where there is incontrovertible physical evidence, there always is some doubt.  After all under the current system even innocent people are declared guilty.

    How does one take circumstantial evidence and say it is beyond reasonable doubt?

    And we should be decriminalizing perjury because one can never go inside the mind of the the defendant and state that it was not an honest mistake.

    I agree that Libby's Grand Jury testimony will sink him.  It was brilliant of Fitz to enter the entire GJ testimony, and no wonder the defense fought him on that.

    some doubt is not the test (none / 0) (#19)
    by Deconstructionist on Wed Feb 14, 2007 at 03:50:16 PM EST
      Most courts do not define "reasonable doubt" these days but it does not mean beyond all doubt.

      MANY cases rely solely on circumstantial evidence. So people understand "physical" evidence is almost always CIRCUMSTANTIAL. Direct evidence means testimony of people with personal knowledge of the event that comprises the crime. Everything else is basically circumstantial evidence. IF I testify that from a block and ahalf away on a dark and rainy night I saw you pull the trigger that's direct evidence.

      If other people testify you hated the victim because he stole your wife and killed your dog and threatened to kill him; that you purchased a gun;  that the ballistics test indicate that gun fired the fatal bullet removed from the corpse; that parrafin tests shortly after the crime showed  you had recently fired a gun;  the alleged murder weapon was in your pocket when you were apprehended along with a threatening letter yo had sent the victim and that someone else testified the victim showed him minutes before the shooting; and that you paid someone to fabricate an alibi for you--- all of that is circumstantial evidence.

    Thanks (none / 0) (#21)
    by MiddleOfTheRoad on Wed Feb 14, 2007 at 10:19:57 PM EST
    Thanks for correcting me about physical vs. circumstantial evidence.  As I said I'm just a layman with zero legal background.

    But it still does not address my main point.  Most cases should then be thrown out because some doubt can always be created.

    If we really follow "beyond all reasonable doubt" then how can innocent people be ever declared guilty?


    I think (none / 0) (#26)
    by Deconstructionist on Thu Feb 15, 2007 at 07:05:55 AM EST
     that in the real world DIRECT evidence is one of the leading causes of wrongful convictions.

      As you suggest, many people find direct witness testimony identifying a certain person as the culprit to be highly compelling evidence. That is true even though study after study show that witness IDs can be very unreliable. If i testify that YOU shot me and took my money and I appear to have no motive to falsely accuse you, you are in it deep  because it will be very hard for your lawyer in many cases to convince the jury i am simply mistaken00 even if I am.

      Now, false testimony from "expert" law enforcement witnesses plays a major role as well (e.g. serology experts based on faked testing or more commonly overstating the statistical significance of blood type matches, etc.), but very often it seems that false testimony is used to "confirm" the mistaken ID from the witnesss and "pin it" on the guy they already have rather than leading to initiating cases against the inocent.


    Full Circle (none / 0) (#20)
    by Slado on Wed Feb 14, 2007 at 04:50:36 PM EST
    So I read Jeralyn's summation and then I see it linked at NRO.


    Stupid trials (none / 0) (#22)
    by jarober on Wed Feb 14, 2007 at 11:23:25 PM EST
    I disliked the Starr stuff as soon as he discovered that there was no "there" there in Whitewater, and decided to wander around looking for some crime he could get a conviction on.  That's exactly what Fitzgerald did.  He learned during the first week that there was no crime (if there had been, Armitage would be the one one trouble, not Libby).  So instead, like Starr, he decided to see who he could catch in either a lie or a bad memory (and then call the result perjury).

    It's prosecutorial misconduct.  It was bad when Starr did it, it's bad now that Fitzgerald is doing it.  And yes, it was also bad when Walsh went off on his private vendetta, and when the various special prosecutors went after Clinton administration officials.

    These are all "politics by other means" - a way for the opposition party to score points and weaken the party in power.  They don't serve any actual purpose, assuming that "justice" is the actual purpose we want.

    Thye difference between Starr and Fizgerald (5.00 / 1) (#25)
    by Repack Rider on Thu Feb 15, 2007 at 01:36:29 AM EST
    Is that Starr spent five years and $65M LOOKING for a crime, and didn't find one.

    Fitzgerald was appointed AFTER THE CIA REPORTED A CRIME had taken place.

    Valerie Plame's job was classified.  Not even her neighbors knew what she did.  When the information became public, that is prima facie evidence that a crime has occurred, because there is no legal way for that information to be made public.

    Fitzgerald knew that if he prosecuted on the basis of the leak though, Libby would use a "graymail" defense, asking for classified documents to use in his defense, and then complaining that when they were denied he was not accorded a fair trial.

    So Fizgerald chose an easier case to prove, merely that Libby is a liar (part of his job description).  Bottom line is that it still puts the traitor behind bars if you win the case, and gives Fitz leverage to get Libby to sing about the real criminal, Dick Cheney.


    not so (none / 0) (#23)
    by MiddleOfTheRoad on Wed Feb 14, 2007 at 11:44:43 PM EST
    How do you know that there was no crime?

    Fitzgerald was appointed after the investigation had already begun.

    Since the scope of the investigation is leaking to reporters (so it is not just Novak), Fitzgerald does not know during the first week that there is no crime.  Incidentally at that time the FBI already suspected Rove and Libby of lying and covering up.  Do you think that Fitzgerald should just ignore that and pack his bags up even in the face of a cover up?

    Fitzgerald had information which could have been very damaging to Bush/Cheney in the 2004 elections.  He did not leak any of it.  Some on the left even think he did not do enough.  I cite his failure to subpoena Royce and Phelps who interviewed Novak right after Novak's article appeared.  Novak told them then that his sources came to him and gave him the name.  Now Novak tells an altogether different story.

    We learned some interesting things during the trial about how this administration and the media works, which were not flattering to either.  But the cover up has been largely successful.  


    Karma is a b*tch (none / 0) (#31)
    by MiddleOfTheRoad on Thu Feb 15, 2007 at 01:43:58 PM EST
    For those of you who are furious at Fitz, the latest article from Murray Waas is a must read.

    "They [the administration] would have had a certain exposure to hypocrisy if they hid behind executive privilege" when the Plame investigation began, or if they had fought the appointment of a special prosecutor, Graham said. "It made it politically untenable to avoid having a strong investigation, because they had demanded it of us. With us, they said we should call out the meanest, leanest dogs. The example that they set with us became the boomerang that came around and hit them."

    Just not true (none / 0) (#27)
    by Abdul Abulbul Amir on Thu Feb 15, 2007 at 08:43:48 AM EST
    When the information became public, that is prima facie evidence that a crime has occurred, because there is no legal way for that information to be made public.

    That is simply not true.

    It is frightening that you believe this: (none / 0) (#28)
    by Pancho on Thu Feb 15, 2007 at 11:21:52 AM EST
    For those who believe criminal trials should be a search for the truth, I sympathize. But that's not the purpose of a criminal trial. A criminal trial is simply a testing of the evidence. The only issue is whether the prosecution can prove its charges (pdf) beyond a reasonable doubt.

    Is our justice system really just a contest of evidence? Should it be? Does the truth matter to you as a defense attorney? What if the prosecutor has "better" evidence than the defense and an innocent person is convicted?

    I'll bite (none / 0) (#32)
    by Deconstructionist on Thu Feb 15, 2007 at 01:49:21 PM EST
      Once I take a case "truth" does not matter to me insofar as dictating how I approach the case-- except for my ethical and legal duty of candor and the law against suborning perjury. My job is not to decide the truth and it is improper for me to shape my defense with regard to what I believe to be the "truth." My job is to defend my client to the best of my ability within the constraints of the law. I'm concerned with the persuasiveness of admissible evidence. "Truth" enters the picture only indirectly in that it is often the case that "true" things are more persuasive and my client needs to understand that.

      If I think that through cross-examination I can convince a jury not to believe an adverse witness it is my duty to do so, even if I believe the witness.

       If I believe I have legal grounds to have "true" inculpatory evidence suppressed o constitutional grounds or excluded on evidentiary grounds it is my duty to do so, even if I believe it prevents the jury from hearing something "true."

       Ours is an adversary system of justice, and I am an advocate for my client not for truth. The theory is that, most often, "truth" will be correctly determined by the fact-finder in a forum where motivated and competent advocates are free to raise and explore all possible explanations of what really happned.



    Thank you (none / 0) (#33)
    by Pancho on Thu Feb 15, 2007 at 02:09:07 PM EST
    for your response. I understand that as a defense attorney your job is not neccesarily to seek the truth, but shouldn't the system's job be to seek the truth?

    One question I have for you related to this is: what is your responsibility legally when your guilty client has fully confessed to you? There was a big case in California where the attorney of an accused child killer (Westerfield?)was in some sort of trouble for obscuring the truth. I had always thought that a defense attorney wanted the truth from a guilty client. Was I wrong about that?


    for more complete elaboration (none / 0) (#34)
    by Deconstructionist on Thu Feb 15, 2007 at 02:37:04 PM EST
     Take a look at the commentary to  Rule 3.3 of the rules of Professional Conduct and the supreme Court's opinion in Nix v. Whiteside.

      Short version is you have zeroed in on the dilemma that can arise where one's duties as a lawyer to both client and court cannot be harmonized without compromising some important value on one side or the other.

     Black letter law-- a lawyer cannot knowingly present testimony he KNOWS to be false. (The issue iof when one KNOWS --as opposed to thinks or believes is also a tough one). It is a violation knowingly to allow introduction of false testimony from any person other than one's client  under any circumstance-- and one has the duty to inform the judge if a non-client witness testifies to something the lawyer KNOWS is false.

      In a criminal case, as to the client witness, though we have the 5th and 6th Amendment issues of the right of the defendant to testify in his own behalf and to counsel to complicate matters.

       First, a lawyer is expected to impore his client not to testify falsely. Failing that, a lawyer should move to withdraw. If not allowed to withdraw (as will ultimately happen to some lawyer down the chain) and the client insists upon testifying, a lawyer is instructed to simply call the client and have him testify in a narrative fasion (meaning don't ask him specific questions and elicit specific answers but merely say something to the effect of "Joe, tell the jury your version..."

       As many have noted, this approach does not satisfy any of the competing values. The false testimony is still heard by the fact-finder and the client is deprived of the lawyer's assistance in presenting his testimony as occurs in normal direct examination-- but that's what the U.S. Supreme Court and the rules say to do.

       Of course, as I implied above the issue of when one KNOWS a client's testimony is false is amenable to many degrees of nuance. Do I know you are lying if your testimony is simply completely implausible in my opinion?  Do I know you are lying if I believe your statements  irreconciable with other evidence I believe to be true? Do i know if it is materially different than a statement you made earlier to others? Even if you confess to me  one day and then later say you will tell a different story now, do I know which of your contradictory statements are true and which false?



    deconstrctionist (none / 0) (#29)
    by orionATL on Thu Feb 15, 2007 at 11:58:49 AM EST
    thanks for your comments.

    i found them very informative.

    i particularly liked the comment on direct versus circumstantial evidence and their implications for reliable judgments.

    that's a distinction i'm borrowing for keeps.

    thanks.. (none / 0) (#30)
    by Deconstructionist on Thu Feb 15, 2007 at 01:13:32 PM EST
    Let me take issue with this from the original post, too. It was written:

    "In layman's terms, in a criminal case, if both sides' theories and arguments sound plausible, that alone is a reasonable doubt and the jury should acquit."

      That's accurate but misleading as written. The proper standard is actually more exacting than thatUnless the prosecution's evidence is persuasive to the extent that it establishes every essential element of the offense to a degree that in the juror's mind approaches  certainty, that's reasonbable doubt and the juror should vote to acquit even if the defense presents no evidence and no theory --based solely on the presumption of innocence.