Fitz's Objections to Libby's Theory of Defense Instruction
In Fitz' final verdict brief, he objects to this portion:
Further, Mr. Libby was well aware when he was first interviewed by the FBI and when he testified to the grand jury that the investigators could and likely would talk to government officials and the journalists he spoke with concerning Ambassador
Wilson and that those officials and journalists would truthfully recount their recollections of the conversations he had with them.
First, it purports to set forth a fact, rather than the defendant’s contention, regarding defendant’s state of mind. Second, there is no evidence in the record indicating that journalists “likely would” talk with the FBI, or that defendant believed that that was the case.
Similarly, there is no evidence in the record that “the journalists [defendant] spoke with” would in fact “recount to the FBI their recollections of conversations they had with the defendant,” let alone that they would do so “truthfully.” In fact, the evidence showed that a number of individuals with whom Mr. Libby spoke refused to recount their recollections to the FBI and to prosecutors, and that court orders were required to obtain the testimony of numerous witnesses.
Fitz wants the defense instruction modified as follows:
Further, Mr. Libby contends he was well aware when he was first interviewed by the FBI and when he testified to the grand jury that the FBI agents could talk to government officials and the journalists he spoke with concerning Ambassador Wilson.
The parties are still battling over whether the jury will receive a "good faith" defense instruction. On Thursday, the Judge asked for briefs on why it would be appropriate. Here's Libby's brief (pdf).
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