Closing Arguments

TM is apparently locked out so I am opening shop.

Clarice

Comments

[Sue]

Did he also leave the keys to the liquor cabinet? OT and I need a bloody mary to get this day started!

[politicaobscura]

I've never seen so many computer problems... is George Soros waging war?

[Jane]

Thanks Clarice. This should help!

[Other Tom]

Don't worry about ol' OT, Sue. Bloody #1 is already on board, and #2 is going down mighty smooth. Hell, it's pushing seven o'clock.

[Jane]

So far do we only hsve FDL blogging? I don't see anything at Dean's World. Any place else we should look?

[Sue]

I was worried about Well's opening. Hoping he didn't promise more than he could or would deliver. I think that was something that hurt the defense (among other things, like a client being guilty) in the Scott Peterson case. Geragos promised much he didn't deliver and the jury noticed. Zeidenberg is pointing that out to the jury now.

[Sue]

Zeidenberg is pointing that out to the jury now.

Well that last sentence kind of left the wrong impression. He is pointing out that Wells' opening was the scapegoating and no one testified to it.

[verner]

OT--grey goose, extra spicy, and I like my celery crisp.

[PaulL]

As someone pointed out yesterday, the defense plan of Libby-as-scapegoat-for-Rove was probably jettisoned because the prosecution witnesses were so bad that it wasn't necessary to go with the more involved, and lengthy, case.

I don't find Zeidenberg's argument interesting so far.

[Patrick R. Sullivan]

I'm fascinated by the Prosecution needing more time. What are they going to say for three hours?

As for the Defense, I expect The Quantity Theory of Memory; Libby heard a total of about 2-3 minutes of Valerie Wilson over 6-7 weeks. Thus, she not being important, he forgot who, when, where, what, he knew about her.

And, everybody else's memory is faulty, why should he be held to a higher standard than Ari Fleischer?

[Sue]

I think Cline needs to stress that Libby was interested in the ambassador not his wife.

[Gary Maxwell]

I caught a snippet of Imus this morning. He had David Gregory on the phone. He asked him what "Tubby" was doing. Gregory said something like what are you talking about? Imus then made it clear that "Tubby" was Tim Russert. He also said he thought Russert was probably staying pretty low until this Libby thing was over. Gregory after a very long and awkward pause said something like, I dont think he has anything to worry about.

How about a guilty conscience for violating the most sacred oath of journalism? Nahhh, why worry. No conscience no worries.

[Patrick]

Verner,

Drink orders are NEVER off topic.

[maryrose]

Just make sure the Bloody Mary's are tart and tangy. Don't forget a little salt on the rim of the glass.
I believe he prosecution wants more time because their case was presented badly and they had no bullet proof witnesses. Now they have to try and make their case all over again. What a bunch of losers.
Gregory on Imus -avoiding the topic and spinning away as fast as he can. Ironically he is the same reporter that gave McClelland such a hard time. He and Andrea inadvertently tipped their hands early. It was up to Russert in his special FBI/Fitz deal to rein them in.

[Sue]

I can't see how the prosecution is going to go 3 hours. They are already up to Cathie Martin's testimony.

[Patrick]

I imagine ol' Libby could use a bloody mary about now.

[Sara (Squiggler]

Actually all the way thru Fleischer and on to Addington

[Sara (Squiggler]

Anyone else think it ironic that someone suddenly realized the IIPA wasn't introduced and had to be done before closings started?

[Larry]

if anyone thinks spatially, it's architects. :) Posted by: JM Hanes | February 19, 2007 at 04:31 PM
Most JOMers are very spatial to me.

Was T R in GJ or not? I thought the interview in the law office was highly irregular, but some recent posts refer to his GJ testimony. Are the posters conflating GJ and law office? Don't tell me they brought the GJ to the office?!

Any attorney: Since closing is not evidence, why are counsels' arguments circumscribed? (Clarice's ref to mistrial, above) Why can't Cline address the materiality issues under discussion here? Heck, why can't he accuse Fitz of misfeasance, malfeasance and mopery?

[Patrick]

I'm not sure if it's just the beginning, or if EW's leaving out portions, but it surprises me that Zeidenberg is doing very little to pre-empt the obvious defense arguments that prosecution witnesses have specific weaknesses, e.g. Miller's shopping bag archives, fleisher's testimony that he did not tell Pincus ("we don't dispute he did, but he just didn't remember" seems pretty weak). When I argue, I always want the jury to hear about the weak parts of my case from me.

[Rick Ballard]

Cboldt has some new filings up. It looks like Other Tom's prosecution/defense split is correct and that Fitz has reserved up to 50% of the prosecution time for rebuttal.

I told ya - the snake is going to whip the pink elephant to death in his close.

[obsessed]

There's not enough booze in that cabinet to numb the collective pain of 4 years of trying to defend the life of Richard F. Cheney.

[Sue]

if someone sent spouse on trip

Unless EW is inserting words, there is the spouse again. It was stipulated that Libby mentioned neither spouse or wife.

[Patrick]

Plus, my reading of the closing so far shows that Zeidenburg is not drawing a careful distinction between the importance of "Wilson and the facts (or lack thereof)" and "Wilson's wife." The testimony showed the Mrs. Wilson was mentioned, but is pretty sparse in showing that Libby was focused on THAT specific fact.

[David]

Attorneys, in closing argument, are prohibited from discussing facts that were not admitted into evidence during the course of the trial. They are allowed to use facts that were presented and argue inferences that can be drawn from such facts. It is done this way to make sure the jury is does not get misled or confused by extraneous issues.

[feedup]

I know these are serious charges, but how can anyone take any of this seriously. It's been a joke & waste of money since it started.

Wilson should hang for this!

[Sue]

I see. It was stipulated that in his early testimony, he mentioned neither wife or spouse.

[Sara (Squiggler]

Mike McConnel just sworn in as new Intel Czar as replacement for Negroponte.

[verner]

Patrick, and since I am an LSU alum--happy Mardi Gras. (And to answer the question that you are all too polite to ask...no, I never flashed my "you know whats" for plastic beads, no matter how many bloody marys I drank!)

[hit and run]

Plus, my reading of the closing so far shows that Zeidenburg is not drawing a careful distinction between the importance of "Wilson and the facts (or lack thereof)" and "Wilson's wife."

Yeah, I was thinking that. Conflationism.

[Rick Ballard]

Zeidenburg is fire hosing this to give Fitz more time in rebuttal.

It's very fitting that a cheap trick prosecutor will close with a cheap trick. 'Perjury Trap Pat' just can't help hisself.

[hit and run]

verner, i didn't think anything could take my mind off the closing today, and yet, something just did.

[Sue]

Finally, we are going to talk about motive.

[Patrick]

Back at you, Verner. From what I understand, having never been to NO for Mardi Gras, that shows admirable restraint. Up here in the upper midwest, it's too cold for anything like that, at least in the (admittedly lame) circles in which I hang out (out in which I hang?)

[Other Tom]

Larry, in closing you cannot cite facts that aren't in the record as evidence. If you do, the other side will object--but it's a bit of a risk to object too often, or to object and get overruled, thereby making the jury think you're really unhappy with whatever the other side just got away with. As far as I'm concerned, the defense is perfectly free to argue about the absence of any evidence of materiality, and I hope they will. And it's out of bounds to accuse the prosecutor of malfeasance--that's a matter to be taken up with the judge--but it would be perfectly OK to say, for example, "how come our guy is indicted and Pincus isn't? Or Fleischer? Or etc.?"

[MarkO]

One does not reserve half the time for rebuttal in a solid case. Even Fitzgerald can feel it.

But, can the jury?

Interesting system.

[hi]

can someone explain why prosecutor gets rebuttal time but not the defense?

[Patrick]

Z is doing well with Russert, but he should address Russert's affidavit to the court. He knows Defense will pound that. I think he needs to take some steam out of that. Other attorneys may disagree, and I don't do criminal defense so I could well be talking out my #@$!$

[Jane]

OT--grey goose, extra spicy, and I like my celery crisp.

I'm in!

[sylvia]

No one thinks this is strange? http://news.nationaljournal.com/articles/021907nj1.htm

(Libby:) I went to the vice president and said, you know, I was not the person who talked to Novak. "And he [said] something like, 'I know that.' And I said, you know, 'I learned this from Tim Russert.' And he sort of tilted his head to the side a little bit and then I may have in that conversation said, I talked to other -- I talked to people about it on the weekend," Libby said in apparent reference to his conversations with Cooper and Miller. …Fitzgerald asked: "And did he at any time tell you, 'Well, you didn't learn it from Tim Russert, you learned it from me? Back in June you and I talked about the wife working at the CIA?'" "No," Libby responded.

[verner]

Patrick: "at least in the (admittedly lame) circles in which I hang out (out in which I hang?)"

Patrick, if I wasn't a nice woman, I could write something really funny about that line...

Just heard a blurb from the Libby closing on court-tv. Z claiming Libby heard about Valerie in nine seperate conversations from nine witnesses who are all saying the same thing, and that he made up out of whole cloth two statements...

Well, excuse me, but all of that seems up to debate. I can't wait to see what Wells does to his "nine" witnesses.

[Sue]

One does not reserve half the time for rebuttal in a solid case. Even Fitzgerald can feel it.

I wondered about that. Usually, in a large case, we reserve less than 20 minutes for rebuttal, at the most. 1 1/2 hours for rebuttal? Very odd indeed.

[boris]

Fitz is counting on a good ol' time BDS revival come to Jesus rebuttal "Send That Sinner Libby To FIRE N BRIMSTONE Damn Nation !"

It has never benn about the prosecution's case. It has always been about no matter what this sucker is going to pay.

[sbw]

What an outdated system. Closing arguments should be written, not spoken, and linked with hypertext by both the defense and prosecution. To hell with rebuttal. Build it in to the document, along with any references in substantiation of the original point.

[feedup]

Why does the prosecution get rebuttal time?

[lauraw]

You know, if one doesn't drink early in the morning (I'm not there yet, waiting faithfully each day for the sun to cross the yardarm), what does one do with a day like this? Far too shivery and unsettling, I say. I'm going to the gym.

[Patrick]

Verner,

I appreciate your discretion. I guess that was a pretty good set up though.

[vnjagvet]

In answer to two questions about the order of closing argument, the prosecution goes first and last because it has the burden of proof.

The defense has no rebuttal.

Here in GA, it is not unusual for plaintiffs and prosecutors to spend most of
their time in "final final".

That way, you get the the proverbial last word, and the defense doesn't have much to work with in terms of shooting holes in your main argument (unless, of course, they have anticipated it).

[Sara (Squiggler]

feeduop and h -- I'm not a lawyer, but I think the prosecution gets rebuttal because it is up to them to PROVE their case beyond a reasonable doubt. Technically, a defense need do nothing, not even put on any case. So the prosecution is allowed to rebut any defense proffered. Seems unfair, but that is the way it is.

[Patrick]

With Cooper, I think he misses. As for Cathie Martin corroborating, didn't she testify that she was on a call, and didn't hear all of Libby's side of the conversation?

There are several big holes in the testimony of these witnesses. That leaves a lot of room for doubt especially if they aren't dealt with. It appears at this point, their plan is for Fitz to deal with it in rebuttal. We will see.

[jerry]

Jeralyn is also live blogging at HuffPost:

http://www.huffingtonpost.com/jeralyn-merritt/libby-closing-arguments-_b_41653.html

[Feedup]

vnjaqvet & Sara (Squiggler,

Thanks!

[Cecil Turner]

I think Zeidenberg is getting himself into trouble. He's way overstating what the witnesses said, just like in the indictment. Assuming there's a cynic or two on the Jury, they've gotta be askin' themselves: "why?"

[Sue]

So far the prosecution is just tracking its case. Reiterating what witnesses testified to before defense got a hold of them.

[Chris]

This closing, if the FDL blogging is pretty accurate, strikes me as very disingenuous. Not only conflating the interested in Wilson and his trip with Wilson's wife. I saw he represented Ari Fleischer going from lunch with Libby to speaking to reporters, skipping days and memo reading. Evidently dismisses Fleischer's denial of telling Pincus as simply a memory lapse. Despite the assertion Z made up front that this isn't about memory lapse alone, I expect defense to show that is precisely what this is.

[TexasToast]

but it would be perfectly OK to say, for example, "how come our guy is indicted and Pincus isn't? Or Fleischer? Or etc.?"

Yep - if all you got is jury nullification.

[vnjagvet]

Zeidenberg's technique is pretty standard fare. He is going through his witnesses, witness by witness giving the jury what he thinks they should have gleaned from their testimony. The forensic problem is to appear to be totally accurate and not look like you are overstating the testimony.

The appearance of exaggeration is the kiss of death to a jury. It is hard for me to tell from FDL whether he is fairly summarizing the evidence.

Looks like Fitz will be carrying the persuasion ball for the prosecution.

[boris]

In this instance it's more that the prosecution case is a long string of interpretations and inference that requires some belief in an unproven evidence free "conspiracy".

IOW prosecution case = house of cards.

They know defense close will easily knock it down.

In rebuttal they will try to set it back up.

[Chris]

Yep - if all you got is jury nullification.

That's called reasonable doubt.

[clarice]

from cboldt--Libby's last filing:
"The Court has allotted each party three hours for its closing argument. The government intends to use one-third to one-half of its time for rebuttal. Although we do not suggest that the government will engage in deliberate impropriety, the length of its proposed rebuttal raises concern that it may reserve crucial contentions until that argument, when the defense will have no chance to respond. In light of this concern, we submit this brief to alert the Court and the government to the relevant principles that govern rebuttal argument. To the extent the government's rebuttal violates these principles, we will object, seek appropriate instructions, and if necessary request surrebuttal.

ARGUMENT

Fed. R. Crim. P. 29.1 addresses the order of closing arguments. The Advisory Committee Note states: "The rule is drafted in the view that the fair and effective administration of justice is best served if the defendant knows the arguments actually made by the prosecution in behalf of conviction before the defendant is faced with the decision whether to reply and what to reply." Courts have interpreted Rule 29.1 and the common law principles on which it rests to

--------------------------------------------------------------------------------

Case 1:05-cr-00394-RBW Document 299 Filed 02/20/2007 Page 2 of 4

mean that "[a]s a general rule, Government counsel should not be allowed to develop new arguments on rebuttal, but should be restricted to answering the arguments put forth by defense counsel." Moore v. United States, 344 F.2d 558, 560 (D.C. Cir. 1965); see, e.g., United States v. Steele, 685 F.2d 793, 802 (3d Cir. 1982). "[T]he primary purpose of the rule announced in Moore is to protect defense counsel from surprise." Hall v. United States, 540 A.2d 442, 448 (D.C. 1988); see, e.g., United States v. Gray, 292 F. Supp. 2d 71, 91 (D.D.C. 2003) (same).

Courts have found government rebuttal arguments improper when they have presented new theories or interpretations of the evidence. 1 In United States v. Russo, 74 F.3d 1383 (2nd Cir. 1996), for example, the court found improper introduction of a new chart column, which reorganized information already in the record, because "[t]he prosecutor took a step beyond the existing evidence to create a new line of argument." Id. at 1396. In United States v. Gleason, 616 F.2d 2 (2nd Cir. 1979), calculations introduced for the first time in rebuttal effectively confronted the defendant with "a new theory (albeit based on record evidence) at almost literally the last minute of a long trial," and thus "[f]airness would dictate that a copy be furnished to [defendant] well enough in advance of its use to permit a reply." Id. at 26. And in Steele, the government's rebuttal introduced a new factual interpretation, supported by a chart, and thus "denied the defendants the opportunity to respond and rebut [its] contentions." 685 F.2d at 802i see also, e.g., Bailey v. State, 440 A.2d 997, 1000-04 (Del. 1982) (reversing conviction where prosecution "sandbagged" defense by reserving bulk of argument until rebuttal); Presi v. State, 534 A.2d 370 (Md. Ct. Spec. App. 1987) (reversing conviction where prosecutor referred to

--
1 Other forms of improper argument, although not peculiar to rebuttal, are particularly likely to cause prejudice and lead to reversal at that stage, because defense counsel have no opportunity to respond. See, e.g., United States v. Holmes, 413 F.3d 770, 776 (8th Cir. 2005); United States v. Carter, 236 F.3d 777, 793 (6th Cir. 2001).

2

--------------------------------------------------------------------------------

Case 1:05-cr-00394-RBW Document 299 Filed 02/20/2007 Page 3 of 4

financial records in rebuttal that had not been addressed in initial prosecution closing or in defense closing).

A recent case from the United States District Court for the Southern District of Texas demonstrates the limits on rebuttal argument. In United States v. Nguyen, 2006 U.S. Dist. LEXIS 36401 (S.D. Tex. June 5, 2006), the court granted a new trial because of the government's improper surprise rebuttal. The rebuttal argument turned on the flight itinerary of one of the defendants, which had been mentioned only in passing during the trial. Although the rebuttal argument responded to a defense argument that the defendant was at the scene of the drug transaction as a bystander rather than as a participant, the court found that "the government had ample opportunity to engage this argument during its initial closing." Id. at *3. Because the government waited until rebuttal to make an argument it could readily have made in its initial argument, and thus denied the defense an opportunity to respond, the court concluded that even surrebuttal (which it had permitted) did not cure the prejudice. See id. at *5; see also United States v. Nguyen, 2006 U.S. Dist. LEXIS 37142 (S.D. Tex. June l, 2006).

To ensure that Mr. Libby's right to a fair trial is protected, we will monitor the government's lengthy rebuttal argument closely in light of the limits set out above, object where appropriate, and if necessary seek curative instructions and surrebuttal.
"

What did I tell you about old smoke and mirrors?

[clarice]

from cboldt--Libby's last filing:
"The Court has allotted each party three hours for its closing argument. The government intends to use one-third to one-half of its time for rebuttal. Although we do not suggest that the government will engage in deliberate impropriety, the length of its proposed rebuttal raises concern that it may reserve crucial contentions until that argument, when the defense will have no chance to respond. In light of this concern, we submit this brief to alert the Court and the government to the relevant principles that govern rebuttal argument. To the extent the government's rebuttal violates these principles, we will object, seek appropriate instructions, and if necessary request surrebuttal.

ARGUMENT

Fed. R. Crim. P. 29.1 addresses the order of closing arguments. The Advisory Committee Note states: "The rule is drafted in the view that the fair and effective administration of justice is best served if the defendant knows the arguments actually made by the prosecution in behalf of conviction before the defendant is faced with the decision whether to reply and what to reply." Courts have interpreted Rule 29.1 and the common law principles on which it rests to

--------------------------------------------------------------------------------

Case 1:05-cr-00394-RBW Document 299 Filed 02/20/2007 Page 2 of 4

mean that "[a]s a general rule, Government counsel should not be allowed to develop new arguments on rebuttal, but should be restricted to answering the arguments put forth by defense counsel." Moore v. United States, 344 F.2d 558, 560 (D.C. Cir. 1965); see, e.g., United States v. Steele, 685 F.2d 793, 802 (3d Cir. 1982). "[T]he primary purpose of the rule announced in Moore is to protect defense counsel from surprise." Hall v. United States, 540 A.2d 442, 448 (D.C. 1988); see, e.g., United States v. Gray, 292 F. Supp. 2d 71, 91 (D.D.C. 2003) (same).

Courts have found government rebuttal arguments improper when they have presented new theories or interpretations of the evidence. 1 In United States v. Russo, 74 F.3d 1383 (2nd Cir. 1996), for example, the court found improper introduction of a new chart column, which reorganized information already in the record, because "[t]he prosecutor took a step beyond the existing evidence to create a new line of argument." Id. at 1396. In United States v. Gleason, 616 F.2d 2 (2nd Cir. 1979), calculations introduced for the first time in rebuttal effectively confronted the defendant with "a new theory (albeit based on record evidence) at almost literally the last minute of a long trial," and thus "[f]airness would dictate that a copy be furnished to [defendant] well enough in advance of its use to permit a reply." Id. at 26. And in Steele, the government's rebuttal introduced a new factual interpretation, supported by a chart, and thus "denied the defendants the opportunity to respond and rebut [its] contentions." 685 F.2d at 802i see also, e.g., Bailey v. State, 440 A.2d 997, 1000-04 (Del. 1982) (reversing conviction where prosecution "sandbagged" defense by reserving bulk of argument until rebuttal); Presi v. State, 534 A.2d 370 (Md. Ct. Spec. App. 1987) (reversing conviction where prosecutor referred to

--
1 Other forms of improper argument, although not peculiar to rebuttal, are particularly likely to cause prejudice and lead to reversal at that stage, because defense counsel have no opportunity to respond. See, e.g., United States v. Holmes, 413 F.3d 770, 776 (8th Cir. 2005); United States v. Carter, 236 F.3d 777, 793 (6th Cir. 2001).

2

--------------------------------------------------------------------------------

Case 1:05-cr-00394-RBW Document 299 Filed 02/20/2007 Page 3 of 4

financial records in rebuttal that had not been addressed in initial prosecution closing or in defense closing).

A recent case from the United States District Court for the Southern District of Texas demonstrates the limits on rebuttal argument. In United States v. Nguyen, 2006 U.S. Dist. LEXIS 36401 (S.D. Tex. June 5, 2006), the court granted a new trial because of the government's improper surprise rebuttal. The rebuttal argument turned on the flight itinerary of one of the defendants, which had been mentioned only in passing during the trial. Although the rebuttal argument responded to a defense argument that the defendant was at the scene of the drug transaction as a bystander rather than as a participant, the court found that "the government had ample opportunity to engage this argument during its initial closing." Id. at *3. Because the government waited until rebuttal to make an argument it could readily have made in its initial argument, and thus denied the defense an opportunity to respond, the court concluded that even surrebuttal (which it had permitted) did not cure the prejudice. See id. at *5; see also United States v. Nguyen, 2006 U.S. Dist. LEXIS 37142 (S.D. Tex. June l, 2006).

To ensure that Mr. Libby's right to a fair trial is protected, we will monitor the government's lengthy rebuttal argument closely in light of the limits set out above, object where appropriate, and if necessary seek curative instructions and surrebuttal.
"

What did I tell you about old smoke and mirrors?

[maryrose]

The prosecution is just rehashing old testimony and putting their own erroneous spin on it. Why are dishonesty and lies permitted in the courtroom. No wonder people say there is no justice. My motto-stay as far away from a courtroom as is humanly possible.

[maryrose]

The prosecution is just rehashing old testimony and putting their own erroneous spin on it. Why are dishonesty and lies permitted in the courtroom. No wonder people say there is no justice. My motto-stay as far away from a courtroom as is humanly possible.

[hit and run]

Yep - if all you got is jury nullification.

Interesting thought (to me anyway). There are several outcomes that would be favorable to Libby. Acquitted, jury nullification, hung jury (w/ no retrial), judge tosses the charges, etc.

Does a defense usually try to pursue just one of those outcomes -- stay focused, don't confuse jury, make it straight forward as possible -- or would they make use of their time (presenting case and closing arguments) to open up the possibility of any or all of these outcomes?

[Cecil Turner]

This bit was cute:

Want to talk for a moment about Mr Novak. Libby confused Russert with Novak. [Puts up the faces of Russerr and the MOST UNFLATTERING picture of Novak I've ever seen.] It wouldn't be easy to confuse these two. [switches the two pictures, laughs in the media room]

Obvious Defense rejoinder: put up two pictures of a telephone . . . switch 'em.

[theo]

I am not following the argument, only these comments. It strikes me as odd that the Government is just rehashing witnesses. They need to put the testimony in some overall coherent framework, not just recount the witnesses. Maybe Fitz will do that in rebuttal.

The "only a memory lapse" statement sticks out like a real soft spot for the prosecution. However, I suppose that they will argue that it is one thing to forget something that happened -- like a conversation with Pincus -- and something very different to remember something that did not happen -- like Libby telling him about Plame on the "qt." But this does not get them all that far. Sure, maybe Libby "remembered" a conversation with Russert that did not happen, but maybe Russert just forgot one that did, just as Ari forgot about Pincus.

[Sue]

theo,

Well that is what they are doing, at the moment anyway. Rehashing testimony that the jury heard.

[ed]

Hmmmm.

Good God! Please stop with the Bloody Marys ok?

I've got a bit of a hangover, a couple multi-database cross-reference utilities to push out and I definitely could stand to have a well made Bloody Mary. Or two.

You guys are killing me.

[Jane]

You're going to hear the term "materiality." Remember Agent Bond, talking about inevstigation. Remember nature of comments. Libby has tried to obscure where he learned this information. Doing an investigation into spread of classified info, if you learned about through classified channel, then spread it, it can eb a violation. If you heard about it as gossip, then it's not a crime. Think about how hard it is to investigation these charges if you hide how you found out.

WEll I guess is what they have on materiality. OtherTom will be pleased.

[boris]

if you learned about through classified channel

More conflation. If the "classified" channel (Harlow -> Martin -> Cheney -> Libby) does not designate it as classified then it makes no difference.

[Sara (Squiggler]

So what grade does the prosecution get for their closing so far?

[james]

If you heard about it as gossip, then it's not a crime.

Is this supposed to mean that Armitage learned about Plame via "gossip"?

it can be a violation

But the jury must not even consider the question of whether or not Plame was classified.

[Sara (Squiggler]

OT -- Supreme Court throws out $79.5 million jury award in the Philip Morris tobacco trial.

[Sue]

It appears that this woman was a covert agent.

What a crock. State of mind gets covert into the equation. But don't pay any attention to that word, ladies and gentlemen. Sheesh!

[Rick Ballard]

"Think about how hard it is to investigation these charges if you hide how you found out."

Think about roses and lavender and mom and apple pie and Uncle Sam and the Boy Scouts and puppies and cute kittens and laughing babies - and then convict this SOB because he's against all of them.

But, whatever you do, don't think about our lack of discretion in prosecuting this farce of a case. That just wouldn't be right.

[hit and run]

ed:
I've got a bit of a hangover

We call that a Wilson

and I definitely could stand to have a well made Bloody Mary. Or two.

We call that an Important Hair of the Dog.

[Patrick]

Funny that Z comments "Isn't it funny that he always forgets the part about the wife?"
Well, isn't that the point? That part wasn't important to Libby. I see that point running smack into the crux of the defense.

[boris]

Also having acknowledged it from Cheney early on the "investigation" can not be misled by surprise at hearing it, or a different version, from a rpeorter.

[ed]

Hmmmm.

We call that an Important Hair of the Dog.

You sir are most definitely not kidding.

Last night it was mojitos along with gin & tonics. They rather sneak up on you.

[Chris]

Russert treated exactly same as Woodward, Kessler, Pincus

Erm, didn't Woodward get overlooked by the grand jury until after the Libby indictment?

More prosecution hash.

[hit and run]

Patrick:
Funny that Z comments "Isn't it funny that he always forgets the part about the wife?"
Well, isn't that the point? That part wasn't important to Libby. I see that point running smack into the crux of the defense.

Wouldn't it be funny if the defense could play an audiotape of the prosecution's closing arguments.

[Another Bob]

OT: DC court of appeals rules that civilian courts have no jurisdiction over Gitmo detainees who are not US citizens.

[rjarango]

for you Bloody Mary fans out there, try muddling some fresh basil leaves in your drink and using a sprig of basil as a decoration.

[Other Tom]

If the prosecution believes it has put in evidence that the investigation concerned the leak of classified information, I think the proper response is, "what classified information? Who says anything Libby discussed with, or heard from, anbody was or is classified?" But I don't expect this will prevail, except perhaps on appeal.

TToast, I fear you don't know what you are talking about. The argument I suggested would not be one seeking jury nullification. It would simply be a way of highlighting the fact that every witness who has testified in the case was contradicted either by himself or by another witness. Why should we expect that Libby wouldn't be as confused as they were?

[Sara (Squiggler]

FDL seems incomprehensible on Defense close

[boris]

OVP to CIA: Wassup with this mission we supposedly behested but did no such thing?

CIA to OVP: Well it was Joe Wilson, his wife works here, they wanted to contest the DIA report and used your requset for analysis to bolster authorization for their mission already in the works.

OVP to CIA: Okay, the press is all over our ass on this, we're going to have to respond.

CIA to OVP: Whatever. You'll be sorry though cuz we know how to make big big trouble for moose and squirrel!

Well Actually I just made up that last part. Since they included the part about "his wife works here" but without saying "don't you dare mention her" there is no jeapordy for OVP to make that part of the story. Hence no motive to lie about it.

[Patrick]

That would be great H & R. Seems the government is being wilfuly obtuse about the bigger question of what part of the "Wilson saga" Libby took to be important. None of the witnesses said LIbby had much of a reaction to the wife stuff, and the pros only has some notes from Schmall, and notes on an article in Libby's file. Seems hard to say he was obsessed with it. Plus, it's not 9 conversations in 4 weeks about the wife, it's snippets of information in 9 longer conversations, the substance of which had almost nothing to do with the wife.

Wells needs to hammer this.

[sbw]

Distilled closing summary:

Z: The prosecution rests.

W: Where's the beef?

[Other Tom]

Did Z really say "it appears she was a covert agent?" That strikes me as monumentally improper. It most assuredly does not "appear" that way, and any evidence on the question one way or the other was explicitly kept out by the judge. What the....?

[centralcal]

my computer power supply died on Friday night and I am way behind (don't throw rotten tomatoes from your bloody mary's at me, please).

I thought Cline was doing defense closing. When did it change to Wells?

[theo]

The thing about how Russert does not look like Novak is pretty damning to the prosecution I think. If he met face to face with Russert and five minutes later said it was Novak you might suspect a lie. But if he talked to a bunch of big name reporters on the telephone and months later was asked about his conversation, just how ridiculous it is to think that he may have mixed up which one he heard what from? The cheap trick by the prosecution on this ought to backfire and show that they have nothing.....

[maryrose]

rjarango
Sounds delicious and festive.
ed:Second favorite drink gin and tonic. Had quite a few at my best friend's wedding at the Yacht Club this summer.Since then I limit myself to two drinks only.

[Patrick]

Yeesh, for Libby's sake, I hope that FDL's nontranscript is not a fair reflection of what Wells is saying.

[Boo yah]

Have to agree with sbw. This closing argument is bad. As a transcript with links it would be clearer and in this case Nifongish.

[Chris]

I'm glad Wells addressed right up the misrepresnting Z did of Wells' opening on the "WH conspiracy" issue. I meant to add that to my disingenuous prosecution points.

[Patrick]

My comment was directed at the stuff prior to 11:30 on fdl.

After that, Wells brings up the "throw LIbby under the bus stuff. I'm not sure I like that, as it emphasizes that Libby may have thought wilson's wife was covert, and gives him motive.

Have I got this wrong?

[maryrose]

Prosecution is not allowed to mention a non-existent covert status of Val. They are not permitted to mention it. Defense needs to get up in their face and show the jury that this is the same crap Fitz tried to pull at the presser. It is false and an out and out lie. It cannot stand with the jury because they will then convict on a false charge.

[theo]

Can ANYONE explain what Wells actually said in opening about Libby being a "scapegoat?"

I am sorry but I never read the transcript and the news reports struck me as incredible.

Two possible interpretations. One is that the evidence will show that Libby is not guilty of the crimes alleged but in fact is a scapegoat being prosecuted to protect Rove. (This is too bizarre to believe, but it is how the press generally described it.)

The other possibility is that Wells mentioned that at one time Libby feared that he was being made a scapegoat (when McClellan vouched for Rove but not Libby) and that is why Libby asked for and got a similar statement from McClellan. (Which is not very interesting but at least rational.)

Is it one of these or something else?

[Other Tom]

Wow. Very surprised Wells is doing this. Not liking what I'm hearing here at JOM; I don't do FDL since getting banned there.

[Robham]

OT:
If Z has asserted Val was covert can Wells now address the issue in his close? Can he add that the judge had not allowed the defense to address this issue during the trial even after the news paper articles were read by the jury?

Hmmm didn’t Fitz complain about jury nullification to Walton?