Libby May Not Testify

It's official. Scooter Libby may not testify at his trial. His lawyers filed a brief tonight (pdf) in connection with yet another sealed request for classified materials, trying to convince the court that Libby's memory failure defense -- the part that is based on how busy he was due to the urgent national security matters he was involved in -- should come into evidence even if he doesn't take the stand. They say that making him testify in order to present his memory defense would force him to choose between his 5th Amendment right to remain silent and his 6th Amendment right to counsel.

They state in a footnote that on September 27, 2006, in connection with the fight over classified materials, Team Libby told the court it was "very likely" Libby would testify but did not promise he would. They point out that other courts have ruled that both sides can present circumstantial evidence as to a defendant's state of mind. They argue that Fitz has repeatedly presented circumstantial evidence at trial of Libby's state of mind.

They want to introduce three categories of national security evidence to show Libby was confused or mistaken, but did not intentionally lie:

  • "the government's statement admitting relevant facts"
  • testimony by persons in the OVP with whom he worked about "the crush of his duties," and
  • some of the morning briefings.

They list the persons in the OVP as being possibly Dick Cheney and one or more of his then deputies.

They say the Court shouldn't force Libby to choose between his right to remain silent and his right to rely upon the advice of counsel. They won't be making a recommendation as to whether Libby will testify until after the Government has rested its case Wednesday.

The defense will begin presenting its case on Thursday.

I side with Libby here. I never understood why the Court tied raising his memory defense to whether he testified. The prosecution has admitted a lot of evidence as to his state of mind. He should have the right to present circumstantial evidence refuting it.

I think Team Libby is (1) having second thoughts about putting Libby on the stand and (2) setting up a record for appeal. If the judge sticks to his ruling, they may be better off not putting Libby on the stand and raising this as an appellate argument if the jury convicts.

They need to be careful though. The decision whether to testify is one of the few strategic decisions at a trial that belongs to the client and not the lawyer. Lots of convicted defendants who didn't testify at trial later claim they received ineffective assistance of counsel because their lawyers directed them not to testify. Putting your client on the stand is always risky. Keeping a client off the stand who wants to testify is even riskier.

I'd bet Libby is chafing at the bit to testify. As I said here, if he does, he may be Fitz's best witness:

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 WorldCom 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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    While you have a point (5.00 / 1) (#2)
    by scribe on Tue Feb 06, 2007 at 05:40:07 AM EST
    about Fitz having already presented circumstantial evidence of Libby's state of mind, I think the dog labeled "he did, so I can, too" just doesn't necessarily hunt.  The only evidence Fitz could present, absent Scooter's admission in grand jury testimony, would necessarily be circumstantial in nature.  That is not the case for Scooter - if he wants to avoid conviction, all he has to do is get on the stand and say "I never, never intended to lie."  All the "busy guy" stuff is so much support - but it's circumstantial.  And, regardless of presumption of innocence, the jury is likely to give a lot more credence to a circumstantial "busy guy bad memory" defense if it's supported with direct testimony.

    IMHO, in the criminal context, direct testimony regarding the witness-defendant's state of mind is probably enough to rebut a circumstantial case.

    Over ten years ago I tried civil case - insurance coverage - in which the defendant had previously successfully avoided criminal liability.  She'd been charged with attempted murder among other things - she got in her car and ran down the guy who'd been hittin' on her sister in some dive bar, then left the scene but forgot the license plate imprinted into the guy's hip.  And the tire tracks up across the curb and grass strip between curb and sidewalk, onto the sidewalk, knocked down a sign, ran across the body, and back across the grass then straight down the street.  She even left dirt from the grass strip in the street showing how she'd straightened out.  And a couple car parts matching her car.  An undercover cop (anti-car theft patrol) had seen the fight spill out of the bar and the guy, running, get clocked between the shoulder blades by a bottle thrown by sister, stagger, then keep going around the corner.  He called in a marked unit which, by the time it arrived, could only find the guy lying, run over and near death.

    Her defense, as presented by her criminal counsel?  "She swerved to avoid hitting a bus."  There was a bus garage nearby.  When that circumstantial defense started looking dubious, she testified.

    Finally, and in the middle of my civil trial a year or so after the acquittal, I tracked down the bus drivers returning to the garage within the time frame of the incident.  I even went over at lunch, handwrote a subpoena on yellow legal paper*, and got the driver to come and testify that no car swerved around his on the night in question.

    In other words, I made a solid circumstantial case that her story, that her weepy criminal trial testimony denying intent "with God as my witness, I never intended to hurt nobody" was so much crap.  The prosecution had made a similar case, but had to deal with her (pretty much unrebuttable) denial of intent.

    I won the coverage suit on the "preponderance of the evidence" standard;  the prosecution lost on the "beyond a reasonable doubt" standard.

    I can't see how Scooter's right to counsel is implicated;  it makes as much sense as did Ollie North's lawyer crying about it so as to avoid his client having to testify to Congress about his lies.

    * Practice note:  I now always have blank subpoena forms in my briefcase when going to court.  It looks more professional to use those in case I need to tag someone Right Now.

    CLE Credit? (none / 0) (#3)
    by Molly Bloom on Tue Feb 06, 2007 at 08:21:48 AM EST
    * Practice note:  I now always have blank subpoena forms in my briefcase when going to court.  It looks more professional to use those in case I need to tag someone Right Now.

    Do we get CLE credit for reading Talkleft?


    by LabDancer on Tue Feb 06, 2007 at 02:58:42 AM EST
    No real trial lawyer ever expected Libby to testify. Which says something about Judge Walton.
    As Libby demonstrated both with the FBI investigators and the grand jury, he's no good at "black ops". His defense was never faulty memory, but always "I'm connected".

    Libby is a disgusting coward, pathetic but for how much damage he has contributed to. I don't conclude he's a coward merely because he hasn't got the balls to face Fitzgerald (though he surely does not).

    I conclude it because he dedicated his life to being a handmaiden to cowardly draft-dodging wingnut bullies, including Cheney, Wolfowitz and Perle - and because he chose loyalty to the architects of a trumped up imperialist adventure over loyalty to his country, its citizens and humantiy.

    Libby's cowardice is evidenced in the state of this idiotic pointless bloodbath he helped his boss promote by lying to the electorate and Congress and deceiving the most gullible of American's allies, pulling a con on the United Nations, pulling a major con on the IAEA -

    - an invasion and occupation [even so awful a word as "war" lends this misadventure too much dignity] which has caused death, dismemberment and lifelong sadness to hundreds of thousands of Iraqis;

    which has caused the same for many of thousands of Americans; which has cost the United States any semblance of influence or prestige in the world - If I were Granadan, I'd be thinking payback, because I'm not sure Bush could beat a ladies powderpuff touch football team at this point. -

    which will bankrupt the federal government and destroy its ability to advance any social cause or lend assistance to any of nation's most needy,

    and which will leave Americans vulnerable to precisely the kind of attack Bush claimed all his administration's killing, stealing, lying, raping, burning, renditioning, torturing cruelty would prevent - the increasing wrath of an injured climate, leaving an endless cold dark foodless winter.

    John Cleese had it right the morning after Hurricane Chad took Florida - on the first Tuesday of November, in the year 2000, the United States forfeited any claim to maturity when it gave this moron the keys to the country. Martin Sheehan had it right then, too: Never trust your fate to a white knuckle drunk.

    As Fitz probably suspected from when he examined Libby before the grand jury, and as he certainly realized more strongly with each passing day at trial, Team Libby's plan was to engage in a defense of plausible supposition - a defence by Talking Points.

    All that can be done now is to impeach the bastard Libby is depending on to pardon him.


    maybe i should apply for cpe credits (none / 0) (#4)
    by cpinva on Tue Feb 06, 2007 at 09:06:33 AM EST
    Do we get CLE credit for reading Talkleft?

    not being a lawyer, and not playing one on tv, CLE does me no good. however, i am a CPA, so can i get CPE credits instead? lol

    ok, one question: you've (jeralyn) commented before that not testifying is a two way street: the danger of screwing up on the stand vs the danger of the jury wondering why you didn't testify in your own defense. since this is an issue of "state of mind", wouldn't that "state of mind" best be presented by the mind in question?

    further, is the danger of mr. libby being eviscerated by mr. fitzhugh greater than the danger of the jury wondering why he didn't testify in his own criminal trial? yes, i know the judge will instruct the jury to ignore that, the defendent isn't required to testify. however, realistically, most jurors are going to wonder.

    maybe i should pay more attention! (none / 0) (#5)
    by cpinva on Tue Feb 06, 2007 at 09:13:55 AM EST
    that should have read: mr. fitzgerald, not fitzhugh. don't even ask! :)

    I'm no lawyer but I am opinionated (none / 0) (#6)
    by Mreddieb on Tue Feb 06, 2007 at 09:30:48 AM EST
    Please correct my layman's perception of the Judges ruling if I'm off base here. Doesn't direct evidence trump circumstantial evidence? Would it be appropriate for a Judge to allow a defendant to use circumstnacial evidence while at the same time witholding his position of direct evidence? Remember well's told the Jury he spoke for Libby. This "bad memory" defense is rests strictly on libby's state of mind when he testified to the FBI and GJ. This tactic is cleverly contrived by the defense to deny the jury  Direct evidence of libby's state of mind . The Judge IMHO is correct in insisting Libby testify.

    an answer (none / 0) (#7)
    by scribe on Tue Feb 06, 2007 at 09:58:23 AM EST
    Doesn't direct evidence trump circumstantial evidence?

    Only on TV.  Direct evidence and circumstantial evidence are merely two names of categories of evidence, but, as evidence neither is entitled to be considered more worthy than the other.

    Direct evidence:  you see the rain falling.
    Circumstantial evidence:  you see people walking in wearing raincoats and carrying wet umbrellas.


    additionally... (none / 0) (#9)
    by Deconstructionist on Tue Feb 06, 2007 at 10:38:56 AM EST
     in amy contexts circumstantial evidence is objectively more persuasive than direct evidence.

      If I'm robbed and shot  in the dark by a man wearing a hood and I get only a very brief glimpse of part of his face during a traumatic event and then identify  a person at a suggestive line-up 9or worse proce3dure) the direct evidence, my testimony "that's the man I saw rob and shoot me," may be far less reliable than circumstantial evidence such as the guy was caught a  minutes later  running a couple of blocks doen the street  with the gun forensics matches to the bullet taken from my body, gunpowder residue on his hands and my credit cards and watch in his pocket.

      As a lawyer, if I had my druthers, I'd much rather have to defend in that case against the  direct evidence than only against the circumstantial.

      In Libby's case, particularly where the "direct" evidence of the state of mind is self-serving testimony by the defendant, it would appear considerably less reliable and persuasive than many formsd of circumstantial evidence.

      I think the conundrum here for the defense has to do with laying the foundation for the memory defense not the relativepersuasiveness or reliability of direct v. circumstantiual.

      All the circumstantial evidence of memory, no matter how persuasive and rliable is not necessaily connected to Libby's mmeory. 100 other witnesses could misremember the same things Libby claims to misremember but the theory of defens4 cannot be adduced through those other witnesses. you can't ask a lay witness to ive the speculative opion testimony "since I can't remember well Libby probably can't remember well either."

      Once tyou get that defense started all the other testimony that corroborates it can be woven into the argument but you have get the ball rolling. The judge has evidently made a preliminary ruling he wasn't convinced the theory is sufficiently raised through examination of other people about their memories.

      Personally, i don't think the defendant's testimony would always be necessary because it might be possible to adduce evidence of THE DEFENDANT'S memory baserd on admissible evidence relating HIS prior conduct or words that are consistent with the claimed lack of memory.



    Thanks, Jeralyn, for all the legal info. (none / 0) (#8)
    by Sinjohn on Tue Feb 06, 2007 at 10:12:30 AM EST
    The legal ins and outs are certainly important for this particular trial and I enjoy reading them, as I am not a lawyer.

    Nevertheless, there are two courts in session here: one will determine the fate of Mr.Libby, or how much more money his pals have to raise for his defense, if the verdict goes to appeal, which it almost surely will. Mr. Libby's real strategy is to delay his possible incarceration until Bush can pardon him.

    The other court is the court of public opinion. That court doesn't care much about legal technicalities or, even, what happens to Mr. Libby.

    There has been enough evidence presented at this trial to strongly indicate that the president of the United States and his vice president were complicit in the attack on Joe Wilson and his wife. Is that not abuse of power, not unlike what Nixon did, except worse?

    Nixon used the power of his office to go after critics, but his actions never outed a CIA NOC, who just happened to be an expert in the world of proliferation of WMD in places like Iran, Iraq and Syria, according to those in the know.

    Bush and Cheney have abused their power in such a way as to bring the word, "treason," to mind.

    This particular member of the jury, in the court of public opinion, is wondering if Congress is paying the least bit of attention to this trial?

    Is anyone else wondering why the administration went off the rails about Joe Wilson, when there were a number of credible critics who went public both before and after the war began and, certainly, by the time Joe Wilson wrote his OpEd?

    Could part, at least, of the panic be attributed to Valerie Plame Wilson, herself. What she knew, or could come to know, might be more important to the administration than what Joe Wilson didn't find in Africa.

    As an independent, who sees rigid ideology as a mental illness, I have been watching the behavior of this administration since Autumn 2002, when I first realized that we had a big, dangerous problem in this country.

    They had been swatting away all comers (critics) for months, with no more effort than it takes to swat an annoying insect.

    I remember, vividly, how amazed I was that nothing anyone said, that was critical of the administration, ever stuck; one news cycle, if that, and it was all gone, down the memory-hole.

    So, why Joe Wilson?

    May it please the court of public opinion;

    Because he was married to someone who was in-the know about WMD, the real kind and the imaginary kind.

    Joe Wilson got too close to an issue that is still a mystery; one in which this administration has never shown a great deal of interest, the forged Niger documents.

    Who forged them and why? Who fed them up the old stove-pipe to the OVP and the NSC?

    The Niger documents are central to the case in front of the court of public opinion. It was supposedly these documents that set Cheney off on his nuclear obsession, to a point where no amount of hard evidence could dissuade him.

    It was his evidence, and he was sticking to it.

    That is the question, isn't it. Was it his evidence? Was there a Neocon in the stove-pipe, so to speak? How many were there and who are they?

    Cherry picking Intel is one thing. It can be attributed to "group think." We all do it on occasion, usually to our own detriment. "Official group think" can lead to nightmares of horrendous proportions, as we have seen down through history, and should be cause for removal from office, simply because it is so dangerous.

    However, falsifying evidence to prosecute a war, where hundreds of thousands of people will die, or being a party to such an act, should be punishable by life in prison.

    LabDancer (none / 0) (#10)
    by LabDancer on Tue Feb 06, 2007 at 10:41:38 AM EST
    scribe - We do have our war stories, don't we?

    I agree that Team Libby arguing that a flaw in the Constitution has jammed poor little Scooter [Harvard undergrad, Columbia Law grad, practicing lawyer] tight between some First Amendment rock and Sixth Amendment hard place, does not, to employ your term, 'implicate' a valid legal complaint.

    I agree also this latest Libby argument raises the spectre of a roughly-parallel complaint associated with the roughly-parallel dilemma in which Oliver North 'found' himself.

    I suggest both are consistent with my opening comment, that based merely on the fact Team Libby has sought to dignify such a disingenuous proposition by inserting it into a court-filed brief evidences just how craven is this lying lawyer Libby.

    But I think Libby's argument has surpassed North's numbskullery, and is far more dangerous than can be dealt with by summary dismissal.

    I took from North's raising something like Libby's the following two ideas:

    First, superficially relevant to the facts of his case, North posited that he was only facing criminal prosecution in consequence of being exposed to it primarily due to his loyal, albeit exhuberant, service and unreserved support for the executive branch of the national authority - no matter how ill-conceived, short-sighted, bone-headed, deluded, ignorant and stupid its decisions. As I recall, North faced charges for lying about some executive branch caper having to do with a country in the Middle East...Ir-something.]. The argument is indistinguishable from the 'legal excuse' that "I was only following orders".

    Second, just superficial, is so irretreivably putrid it makes the first smell, as Colbert is wont to say, simply delicious. North's general challenge to his prosecutors was that any established institution of a mature and functioning democracy, including any constitutional safeguard, logically extending to the entire Constitution, save only the second part of the Second Amendment, of course, which even just gives off the appearance of conflicting with the choice of a free-born American to follow the letter, or spirit, whichever suits best, of orders issued by or under the authority of the nation's leader, constitutes an intolerable infringement of a citizen's "Americanism" - teh ultimate American Right, if you will.

    In contrast, I see Libby's positions as far worse. I'm serious. North at least could hide behind a "Dirty Dozen" defence with some pretension of legitimacy - whereas Libby is nothing less than a product of the best educational institutions in the nation, and several "think tanks": the American Enterprise Institute, the University of Dick Cheney, and the Hudson Institute

    [Hereafter, I will try to refrain from referring to them as "wank tanks".]

    Libby and Team have succeeded in reaching depths surpassing even North's, not merely by adding to it Libby's social and cultural 'qualifications', but by lending all the weight of his standing, and that of his Team, to the idea of the Constitution as some IED-infested swamp.

    One of my favorite websites for dropping in to check the tempature of the disaffected is the black-hearted Ace of Spades HQ, the banner for which caught my attention with this line from H.L. Mencken: There comes a time when a man must spit on his hands, hoist the black flag and begin slitting throats.

    The same Mencken also wrote this: "As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron."

    Mission accomplished. Let's move on - starting with Libby.