Reasonable Doubt

Jeralyn Merritt explains reasonable doubt in a criminal case:

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.

And keep in mind - if the jury thinks it is possible that Libby's testimony, even though mistaken, was offered in good faith, then he did not "lie".

Since Ms. Merritt is a progressive defense attorney, she has a natural affinity for both sides in this case.  Her close:

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.

For symmetry's sake, I think Fitzgerald has a chance, too.

Comments

[Sue]

Nevermind my comment on another thread.

That is what Rick and I were discussing the other night and neither of us could figure out what Fitz was going to say about motive, since he hadn't proven it. It's nice to see someone on the left noticing the same thing.

[windansea]

and the verdict is:

not guilty

[Other Tom]

I had Dershowitz for criminal law. I remember him discussing the three standards of proof: preponderance of the evidence, clear and convincing evidence (often applied in civil fraud cases), and reasonable doubt. He said something like, "some people call them 51%, 75% and 99%, but actually the notion of percentages doesn't really apply." I would bet my bottom dollar that from that day to this, every student in the class (which included Ted Wells) thinks of it as 51%, 75% and 99%.

[Patrick R. Sullivan]

Fitzgerald has a chance because he has the home field advantage. If this trial was in Virgina, he'd have no chance.

As for the logic of reasonable doubt, the Defense has discredited (at least in part) every single Prosecution witness's memory.

The Prosecution, in contrast, hasn't laid a glove on any Defense witness. Even through the filter--and with the juvenile snark of Marcy--of FDL, Novak, Woodward, and Hannah came through as very strong witnesses.

But, I still think the probabilities are against an acquittal; there have to be some BDSers on the jury. Maybe Wells thinks a hung jury is as good as not guilty.

[Carol Herman]

FROM CAROL HERMAN

It's also wise to notice, when playing poker, you do not have to wait for the last card in the deck to fold. OR CALL.

Yes, Walton is angry. I'll bet so is Fitz. Because Wells prepped his case so well that he had choices, galore. He had a long list of possible witnesses.

One, Kessler, I think, spoke of taking notes in the elephant house. For a colleague.

You get the witnesses who sound confused. And, Fitz, who had this "nothing of a case" for so long, that you have to ask WHY?

WHY? Is the MOTIVE question.

WHY (if Wells gets to play the Larry King/Russert "Presidential Appearance" gets to say that "to protect a source," Russert would go to jail, rather than divulge this.

Russert? He gave the FBI information on Libby that even the FBI can't prove is true. And, it's a MEMORY THING. Russert's memory IMPROVED with age.

And, the left, who believes in rants and whines, will go off the cliff on this one.

Reasonable people? I expect you can find reasonable doubt. But those deranged with Bush hatred? Fuhgetaboutit.

Ah. Did Dan RaTHer have BDS? Was he "patient zero?" Then, does Russert "stay alive" on TV, managing a $5,000,000 'anchor chair with management cushions?'

I also noticed that Judith Miller, who did her best to live up to Russert's challenge of "I'D GO TO JAIL RATHER THAN GIVE UP MY SOURCE," actually did her best NOT to "halp" Fitz criminalize Libby.

So, what do you have here if there's a guilty verdict? Russert and Judith Miller's testimony?

Wells is a PRO. He'll close.

But the journalists? THEY WON'T FORGET. There are as mad as elephants who can't get free of their cages. Some day ahead? You may gather up enough hay to feed the truth. It's coming. But Walton doesn't see that, either. Not that I care. (Even if he dismisses a charge or two. It won't be enough "dismissing." His role, here, won't go unnoticed by the press. And, don't expect Judge Hogan to come off very well, either.) KEEP A CHECK OFF LIST.

[Walter]

Sue,

He will say the same thing he said before:

Libby saw the articles in the paper and freaked! He came up with a half-*ssed idea of blaming reporters in order to escape a stupendously long prison term. To the extent that he believed that his lies about his state of mind in talking to Russert and Cooper (&Miller, if the judge allows this argument) prevented me from prosecuting him, he obstructed justice. You don't have to believe that Ms. Plame is covert to understand, as these articles show, that Libby probably thought so. Just look at the underlining!

Fortunately, we detected this fraud early in the process and that is why we are prosecuting him for ... fizt ... steady buzz ...

Sorry, that's where my crystal ball gets fuzzy. But that's the gist of it.

Combine that with a reference to no other reasonable explanation for Libby's story being internally consistent and the obvious differences in testimony and you have the essence of Fitzgerald's case.

In other words, Fitzgerald will argue that, while others may have forgotten some facts, Libby appears to have forgotten only the facts which, if Plame were covert and he had known it, could lead one to conclude he was guilty. [Diagram that sentence. I dare you! Better yet, put it in standard english. Double dare you!]

[sylvia]

Yes that's how Wells could frame it. He could say, before you are some words uttered by the defendant, from his testimony. But this testimony is more like a conversation, as the defendant is supposed to answer detailed questions about events that occurred months ago, basically from the top of his head, with no lawyer or notes to refer to. And in coversations, people do not always speak precisely. You could read his comments in one way, but if you read his comments in another way, placing the periods and commas in different places, and using the words in different contexts, using the sentence before or after, it could mean something completely different and something completely innocent.

This man, who served his country for years, could have his freedom taken away from him. Do you want to do that based on a misinterpretation you have on a sentence he uttered? Can you say without any reasonable doubt, your interpretation of what he said is the correct one? Because if not, ladies and gentlemen, you must acquit.

[Other Tom]

Walter, I haven't figured out how to diagram sentences with my keyboard, but I must say that the sentence to which you refer holds together most beautifully. I can close my eyes and see the diagram, but I can't articulate what I see...

[Pofarmer]

He came up with a half-*ssed idea of blaming reporters in order to escape a stupendously long prison term.

unfortunately, isn't their testimony from reporters who say this is, indeed what happened. The "That's what reporters are saying?"

[verner]

Why I think Libby will get a not guilty:

1. Fitz has not proven any motive.

2. All of Fitz's witnesses have been shown to have "memory" problems, so why should Libby go to jail for his memory lapse?

3. Ari has been contradicted by the reporters--we're going to send Libby to jail on his testimony?

4. The Armitage/Woodward tape was damning--not only did it make Joe Wilson look like a schmuck--it also make Fitz look like one for not questioning Woodward. Also, it showed who was really talking to reporters.

5. Fitz could not counter the testimony of Well's defense witnesses.

6. The jury has been given a sense that this was a "political dog fight" to quote the former sen. from Tennessee--as in Val was set to send Joe even before the VP raised any questions, Joe calling all over town etc.

7. Libby talked to a pack of high profile reporters, and didn't mention Val to any of them.

8. The missing FBI notes on Russert.

9. Wells will play the Larry King transcript, and make Russert (and Fitz) look like fools.

10. The Justice Department Guidelines are a lame excuse for not questioning reporters--we're talking about a man's life here. The truth is what matters, and Fitz didn't want to know it.

11. If Wells didn't think he already had this case won, he would put Libby and Cheney on the stand. He doesn't have to prove that Libby is innocent, Fitz has to prove that he is guilty--and no rational, fair minded person could conclude that based on what Fitz has presented.

12. Wells is going to approach the jury smelling sweet and looking like a movie star. He is going to make Fitz look like Torqueamada--an out of control prosecutor who cares little for finding out the real truth, and on a mission to 'selectively' get Libby. And based on what the prosecution gave the jury, he has a whole lot to work with.

Oh, and then we have the Novak factor--did he talk to Libby instead of Russert? Could be...

[vnjagvet]

I have seen Jeralyn in action before on TV, and have been generally impressed with her technical legal analysis.

I think in this article, to her credit, she has allowed her professionalism to shine through, calling it as she sees it.

I agree with her.

In my opinion, the prosecution has not proven any of the charges BRD.

If the jury convicts, which I believe is possible because of the jury's makeup, I believe the conviction will be reversed.

[Walter]

Thanks Other Tom.

But my challenge really wasn't directed at someone who has spent some time wading through legal documents. That comparison gives my sentence an unfair advantage--a head start, if you will, in the race for comprehension.

Pofarmer: Fitzgerald's case seems to hang on Libby attempting to defeat the "intent" and "knowledge" prongs of the IIPA and Espionage Act. If he actually didn't remember knowing from official sources when he told reporters, he cannot be successfully prosecuted under either statute, regardless of the other facts.

But if he did know, and purposefully disquised this knowledge, he had the requisite knowledge and intent to commit perjury and obstruction of justice, again regardless of the other facts. (That, of course, is Fitzgerald's view. My view is that it is imposssible to criminally obstruct an investigation without obtaining some benefit for someone from the obstruction.)

[clarice]

One Boston Globe columnist is really unimpressed with the prosecution:
"Libby may even be guilty of the crime he's charged with: making false statements about the Plame leak to FBI investigators and to Fitzgerald's grand jury. Or maybe his stories weren't true because he just didn't remember. What were you talking about on June 4, 2003? Oh, you don't remember? Guilty, guilty, guilty!

The main purpose of Fitzgerald's investigation, as writer Nora Ephron gamely conceded this week, was to nail either Karl Rove or Cheney. "We all had some hope that in the end Karl Rove would end up on the hook," Ephron wrote, apparently speaking for her Huffington Post constituency. "We even dared to dream of bringing down the big Kahuna, Dick Cheney. But the smoking gun never really materialized," she admitted. But the trial must go on.

So what do we get for our cool $ 2 million? A parade of journalistic demi-celebrities, who, like Libby, all seem to be suffering from judicially induced memory loss. Here is The New York Times account of NBC capo Tim Russert 's testimony: "Mr. Russert could not remember the exact details of his telephone exchange with Mr. Libby, like the time of day . . . . Mr. Russert said that he could not rule out discussing Ms. Wilson [Plame] with Mr. Libby, but had no recollection of it."________

http://www.boston.com/news/globe/living/articles/2007/02/14/libby_trial____when_memory_doesnt_serve/>Pffffft

As for Fitz' argument about the DoJ regs (hah) he didn't call his witness to explain, did he? I take it because cross exam would have established the govt could have asked Dickerson, Gregory and Mitchell and a whole passle more and didn't under Fits' obvious don't ask don't tell investigative approach.

[Jane]

Clarice,

Are you going to be able to get away - weather wise? You certainly have earned some time off.

[Rick Ballard]

Clarice,

The progs are going to catch on to the Fitztrick pretty quick if we keep knocking the prosecution. I think that we should stick to a "he did as well as could be expected" line - they won't catch on to the unsaid [for someone in the bag].

We wouldn't want the progs to turn on their shining knight would we?

[clarice]

Jane , we are trying to get a flight out tomorrow--
Rick, yes, and to think all it took was.......(oops, almost gave it away)

[Michael]

Odd. The piece that got me hooked on this case was Dickerson's Kafkaesque bit in Slate, where he's covering it as a reporter and all of a sudden Ari is testifying about leaking to him when he's pretty certain he wasn't leaked to. One thing led to another and I've been compulsively hitting F5 on comments threads here ever since.

But the other munchkins at Slate who have followed this trial in Dickerson's wake are still hewing to the MSM line. Seth Stevenson wrote last night

"The prosecution has brought forth both a motive and a lot of evidence."

If you'll indulge me a small digression...someone quoted Mencken about how the more you know about the events being reported the less you trust reporting. Ever since the advent of CSPAN I've been struck by the gap between what I can witness live and the way it's recounted. And I really really try to augment my naturally jaundiced nature with extra doses of cynicism. But the coverage of this trial seems further afield from what I percieve to be the reality than anything else I've experienced.

So, members of the digression jury, is this (a) a new low, or (b) am I still too credulous?

Thank you.

[jwest]

Clarice,

Good luck on getting a flight. We’ve been trying this week to get to St. Martin, but found it next to impossible.

[clarice]

Thanks, but Fla isn't St Martin. And I'm optimistic.

[Dwilkers]

That's an excellent post by Jeralyn.

I think she's has done a decent job of pulling back from the edge she was about to leap off back when she was calling Rove's lawyer at home in the middle of the night. She is pretty conflicted here, as a BDS sufferer as well as someone that has dedicated her blog and career to ferreting out prosecutorial misconduct.

I will quibble with her (and TM in her thread) a bit though, on the Russert bias point. I believe I saw a reference somewhere to the jury being shown a tape that was described as "Russert chortling" over the Libby indictment.

Now, Jeralyn may be relying on some lawyerly parsing of 'established' when she says Libby failed to establish this, but IMO they presented evidence of it and that's all they had to do.

Remember, the defense doesn't have to prove diddly.

[clarice]

Michael:"So, members of the digression jury, is this (a) a new low, or (b) am I still too credulous"

It has been my consistent experience that whenever I know a great deal about an event or subject, I am astonished by how differently it has been reported, but I will say this case is an especially glaring example.

The case caught my eye in the early days of its development when the very notion of "deliberate outing of an undercover agent to get revenge on a whistleblower" struck me as a truly preposterous supposition, especially given what I knew of the fighting between the CIA and DoD and WH and the rather absurd explanations for the Mission. I wrote The Wilson Gambit and a few other pieces . Then I found JOM and saw more and more absurdities in the CW and reportage.

[Rick Ballard]

"So, members of the digression jury, is this

(a) a new low, or

(b) am I still too credulous?"

(a) No, Comrade Uncle Walty's reporting on the Tet offensive still clings to the bottom of the cesspool in terms of misreporting.

(b) That depends upon whether or not you're reading and listening in order to determine what the reporters are lying about. Remember, the vassals of the USSR read Pravda and Isvestia every day in order to try and determine what was being concealed.

[verner]

Clarice,

I saw the pic of DC on Drudge this AM and thought of you. Hope it melts enough this afternoon for you to get away, and hope you're headed for a little sun and sand. We want you nice and tanned and relaxed when the "not guilty" verdict comes down (fingers crossed)

[clarice]

Thank you! I am by nature an optimist and know that a day or two dealy will not kill us..(Anyway it's not that fab in Fla today either)

[Other Tom]

In this lull, I'm still trying to figure out why we didn't see a Rule 29 motion directed to some or all counts at the close of the prosecution's case. Best I can come up with is that Wells has seen enough of Walton to know he's not going to get any relief that way, and if he makes the motion he telegraphs what he's going to say in closing. Hope that's it, anyway...

I am still laboring with materiality--I've queried on this subject a couple of times (OK, maybe more), as have others, and if anyone has posted a theory I missed it. I'm simply not aware of any trial evidence that would support a finding that any of Libby's statements, even if false, were material to anything.

But Jeez--I've already got four Bloody Marys on board. (Hell, it's after nine out here now--what'd you expect?)

[Rick Ballard]

Vnjagvet - Walter,

The prosecution gets two more swings at getting beyond reasonable doubt in closing and rebuttal. Have either of you (who have both done criminal work) ever seen a prosecutor overcome the weakness of the evidence presented and lead a jury to convict? If so, was it due to a weak defense or emotional appeal or ???

[Ralph L.]

I hope Wells will point out that Libby had no way of knowing if Russert kept GOOD notes of their conversation, so why would he risk perjury to avoid the IIPA? Or did he know Russert ain't too bright?

Patrick, who made those Frontline comments you posted on the other thread?

[Ralph L.]

Clarice, are you putting out wise-ass traps now? I feel violated.

[Whitehall]

Michael's experience of awe at the abuse of public trust by the journalists is one I share.

The cabal that is the Washington press corps should be seriously diminished by the Libby trial - of course, they will not use their own pipelines to further reduce their public influence.

It is worthy of a repeated note that GE has replaced their top executive for NBC-Universial, Bob Wright, with a new guy, Zucker. This happened right in the middle of the trial. I suspect that the suits have had just a bit too much of the overly self-interested NBC News division. They have not protected the corporate brand, a vital asset.

Any successful law suit award will come directly out of GE's bottom line.

One has to ask, how come GE's vaulted "Six Sigma" quality plan has not been applied to NBC's news gathering and dissemination product?

[clarice]

All about Prof Tobias--his bio
http://64.233.167.104/search? href=q=cache:owdd066It_UJ:law.richmond.edu/faculty/tobias.htm+carl+tobias&hl=en&ct=clnk&cd=1&gl=us>Tobias

How did he get in the Wa Po rolodex from the Univ of Richmond?

Well, I can't be sure, but here's a piece in which he argues against the breakup of the Nonth Circus , suggesting he has a different take on the most often reversed Circuit Ct in America than most people do:
http://64.233.167.104/search?q=cache:uI4Zs0QMEzsJ:law.richmond.edu/news/view.php%3Fitem%3D171+carl+tobias&hl=en&ct=clnk&cd=2&gl=us>How to get in the msm rolodex as an "expert"

[Sara (Squiggler]

Other Tom -- I posted the following on another thread last night but got no response. I don't have any legal knowledge, so don't know if this goes to your point or not. However, I would like someone to explain it in layman's terms.

_______________________

From cbolt's site, Fitz filing 2/13/2007, there is this:

Obviously, the government offered the defendant's testimony to prove that he made the charged false statements,to provide context for the charged statements, and to show materiality (which showing is necessarily limited to the questions asked, rather than the answers given). The government did not offer the defendant's grand jury testimony as admission under Fed. R. Evid. 801(d)(2). It would be particularly nonsensical to construe the government's introduction of defendant's grand jury testimony as admissions offered for their truth given the nature of the charges -- perjury and obstruction of justice.

Can someone explain in layman's terms.

Posted by: Sara (Squiggler | February 13, 2007 at 08:17 PM

[centralcal]

Is it just me (the legal dummy) or has Judge Walton gone over to Fitz's side lock, stock, and barrel?

It sure seems that way this morning via fdl.

[Dwilkers]

Here's a link to the Russert bias bit I was talking about.

To try to undermine his testimony, defense attorney Theodore Wells Jr. suggested that Russert harbored personal animosity for Libby and was "elated" when he was indicted in 2005.

-snip-

Wells implied to the jury that Russert had darker motives.

The defense played in court snippets of radio personality Don Imus's interview of Russert that morning. Russert, the moderator of NBC's "Meet the Press," spoke in giddy tones that contrasted markedly with his sober, careful style in court.

"It was like Christmas Eve here last night," Russert told Imus about his newsroom's anticipation of the results of the federal investigation that Fitzgerald was about to announce. "Santa Claus is coming tomorrow. Surprises! What's going to be under the tree?"

Wells also read parts of a transcript from that same day's broadcast of the "Today" show, in which Russert explained to host Katie Couric the significance of possible indictments against Libby or President Bush's top political adviser, Karl Rove, which newspapers were reporting that morning.

"It's huge, Katie," Russert said on the program. "This is the first time in 130 years that a sitting White House official would come under indictment."

Russert's buoyant tone, Wells contended, reflected "bad blood" between Russert and Libby...

And Fitz tried to keep it out, seeing it as imputing bias too:

Fitzgerald tried unsuccessfully yesterday to persuade U.S. District Judge Reggie B. Walton to prevent the defense from reading the jury excerpts of Russert's "Today" comments. "To turn it into a grudge match -- with some sort of bad blood -- I think that is a stretch," Fitzgerald argued.

To me Wells did indeed introduce evidence of Russert being biased. Whether the jury buys it or not, who knows.

[Thomas H. Ryan]

Whitehall:

I share your interest in last week's unexpected departure of the president of NBC Universal. Moreover, I have called the investor relations people at GE to explain why I refuse to take a position in GE stock, ie., the parent company's unwillingness to demand that its NBC news division honor the same high ethical standards expected and enforced elsewhere at GE.

[theo]

Let's not get too much into celebration yet people. The name of the defense here is "reasonable doubt." The sad truth is that Wells & Co. did NOT tear the prosecution case apart and leave it in shreds. The good news is that all we need is one juror to hold on to "reasonable doubt" and there is no conviction.

I think the close is easy. Woodward said that he told Pincus; Pincus says he did not. Miller said that she told Abrahamson; Abrahamson said she did not. Fleischer said that he did not tell Pincus; Pincus said he did. All were under oath. Libby recalls telling Kessler, but Kessler says he did not. Libby says that Russert talked to him about it, but Russert says he did not. The CIA people say they told Libby, but they did not recall it when first interviewed.

Only one of these people is on trial and for only one of these discrepancies in the memory of the participants. (The Miller and Cooper stuff is too small to matter.)

It is obvious that just about everyone involved has a different recollection of their conversations that week about Mrs. Wilson. How can you conclude that one of those people is lying and the rest just have bad memory? There is plenty of reasonable doubt about the recollection of everyone who has testified.

[Sara (Squiggler]

O'Reilly said the other night that the day after The Factor did a blistering report on Mr. "our troops are mercinaries" Arkin (an NBC war analyst), their nightly NBC news lost over 400,000 viewership. An overnight loss. Although this might be true, O'Reilly failed to note that this all happened at the same time that Russert so completely embarrassed himself on the stand and that Wells put out a lot of negatives about ALL the NBC shows that carry news from all their various entities, i.e., MSNBC, NBC, CNBC, even the Today show.

Remember the NBC home office policy -- say whatever you want under the 1st Amendment but NEVER EVER do or say anything that makes NBC look bad.

[Jane]

It is obvious that just about everyone involved has a different recollection of their conversations that week about Mrs. Wilson.

The reason for that being that it was a NON event. That's key. And convincing.

[Ralph L.]

Clarice, Tobias' wife works at the WaPo. She's in the WMD department. Everyone knows it.

[Patrick R. Sullivan]

'That's an excellent post by Jeralyn.'

I suppose by the standards of BDS sufferers it is, but she has the same problem that David Corn has:

'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).'

But, right underneath she has the GJ testimony where it's clear he's NOT telling the GJ he didn't know he had a wife, that's merely a device he's using on Cooper:

'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.'

If Corn and Jeralyn don't understand this distinction, Wells had better damn well make sure the jury does.

[hit and run]

I'm so far behind...but, I am putting this down on this thread.

Clarice - I am very sorry you were not able to get outta town today. Truly.

Even if part of me smiles that you are here.

Now, as much as this hurts me to say it -- when you are away, you had better take some time away from JOM to let your brain kick back and relax a bit.

I know it will be hard to be without me, but I think it's for the best.
;-)

[clarice]

HEH--Someday we really out to have a What does it take to get in the MSM rolodexes contest.

Some is obvious--You can always count on anyone from the Harvard Kennedy Center to criticize the administration on anything; Lanny Davis to smooth over the Clintonistas lies and hypocrisies.

[Rick Ballard]

If you want to get to GE don't go to stockholder relations. Buy a share and call Milberg-Weiss (if they're still in business). Let them do the stockholder relations argument for you. They won't charge you a dime if you can offer a tenable (or not) argument of damage.

[clarice]

h & r, I'll miss you all even more. Maybe I can get a JOM implant or something to stay in contact. (I do have high speed connection there and can read and post when the clouds roll in.)

[Jane]

Boy I find this troubling: Fitz: "We proceeded based on Libby testifying."

Since when does a prosecutor or Judge ever get to "rely" on a defendant testifying. Isn't that a clear violation of the 5th amendment.

Walton says he will hang up his "spurs" if he is wrong on this, so I must be missing something.

[Ralph L.]

Clarice, I'm sure if you keep trying, we'll see you on Hardball one day.

[Rick Ballard]

Jane,

Wells argued CIPA six ways from Sunday for months. Both Walton and Fitz are just a teeny bit miffed that the inference that they made appears to have been mistaken.

That's one of the reasons that Walton keeps whacking Wells and petting Fitz. I guess he doesn't think that Wells superlative tactical move was justifiable.

That's tough. If Fitz had put on an actual case rather than relying on the hope of nailing Libby in cross, Libby might have been forced to take the stand.

The brightest man in the room needs to go sit in the corner wearing a pointy hat.

[Bruce Hayden]

Sara,

I am not an evidence expert, but you start with the assumption that a tape or the like is Hearsay, which is "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted" (FRE 801(c)).

But here, it isn't Hearsay because it isn't being introduced to prove the truth of the matter asserted, i.e. that Libby did or did not say something to someone, but rather that it is supposedly evidence of his lying. He allegedly made misstatements here under oath, and this is the evidence of that. In other words, it is the falseness of Libby's testimony here that is what is being asserted.

FRE 801(d) though covers evidence that is introduced to prove the matter asserted, but still isn't Hearsay. 801(d)(2) covers party opponents, which would be appropriate here - except that it doesn't make sense to introduce it for this reason (to prove the matter asserted) here, because it has already been introduced for the purpose of proving that it contains falsehoods.

[Carol Herman]

FROM CAROL HERMAN

"The Brightest Man in the Room," was once a reference to whom? Algore?

And, while some of you want to see the Rolodex, I'd settle for some insider dope at NBC, among the crew who polish the set for MTP.

You think Russert's a joy to be around these days?

[clarice]

Rick, it is especially embarrassing to Fitz because Wells made it clear when he argued the CIPA point at the outset, he was not pledging that Libby would testify. The last I saw on the point, the judge was backing off his intitial comment that Libby would have to testify to get that in--he is now saying as I understand it that the jury may infer from the testimony of others that Libby's attention was on far more impt things than Emma Peel but his state of mind is something only he can testify to.

[Sara (Squiggler]

Bruce: I think I kind of got that part, although I'm not sure how it applies when talking about Libby's GJ testimony. What had/has me confused is the part about: to provide context for the charged statements, and to show materiality (which showing is necessarily limited to the questions asked, rather than the answers given).

As a layman, this seems to be saying it doesn't matter what Libby answers, only what questions the prosecutor asked to determine materiality. This seems like an awful lot of power to the prosecutor that really belongs to the jury. I figure I'm just not understanding.

[Ralph L.]

Clarice, if he thought Valerie looked like Emma Peel, it would be much harder to believe he forgot her.

Carol, the BM in the Room is Fitz. Ha!

[Sara (Squiggler]

Russert May Take Stand Again...

[Sara (Squiggler]

Quote from above-linked article:

U.S. District Judge Reggie B. Walton said he'd decide later Wednesday whether to allow the tapes into evidence. If he does, he said, he'll have Russert back on the stand to explain the apparent inconsistencies.

"It does touch on his credibility," Walton said. "His credibility, it seems to me, is crucial to this case. He's probably, if not the most important, one of the most important witnesses."

[kate]

Hmmm...so Walton might actually rule in Wells favor, that would be unusual.

[Sara (Squiggler]

Kate, I've given up the tea leaves on Walton. Seems every time he telegraphs a certain direction, he comes back with an opposite ruling.

[PaulL]

It looks like Walton will ask advice over lunch and decide based on what other judges tell him.

[PaulL]

Walton is striking me as being almost as big of a whiner as Fitz: BUT YOU MADE ME THINK THAT BAD MAN SCOOTER WAS GONG TO TESTIFY! YOU TRICKED ME! (Imaginary transcript.)

[Sue]

It looks like Walton will ask advice over lunch and decide based on what other judges tell him.

I was just about to type that myself.

Instead, let me just marvel at Fitz saying this...

The jury has to understand, how would I react if I heard about a plot to blow up an airport. They're not going to give them the context to how Libby would understand it. They're just hoping jury will come to conclusion that this was more important.

Well, gee, of course Valerie Plame was more important than a plot to blow up an airport. I hope EW is missing part of what he said and he didn't actually say the above.

[centralcal]

PaulL: I thought exactly the same thing when he said he'd rule after lunch.

And I am a little bothered when he indicates he "didn't understand" such and such. For now, I will blame fdl transcription.

[Sara (Squiggler]

I don't get the upside for Fitz to keep on belittling Libby's workload or the seriousness of the subjects he had to deal with minute by minute every day. He treats the job of Chief of Staff to VP and National Security Advisor as if it more like being the assistant to the assistant to the assistant of some B-level social secretary.

[PaulL]

Sue,

I read the same thing and was astonished. Like ANYONE would ever take airport plots casually!

And like ANYTHING could be more important than the secret agent chick. LOL!

Yeah, Fitz is definitely Ahab.

[kate]

Oh, no. I thought the discuss with other judges and rule after lunch was a joke. He said that??

Here's what's going on with Walton. I was young during Watergate but I remember how the media made heroes out of the people who were associated with uncovering that scandal. There was Judge Sciarra (sp?) who was on the cover of Time and portrayed as a national hero. There was Sam Ervine who was Uncle Sam and on and on...

Walton may not hope for the wonderful press but he doesn't want them going after him, public ridicule. He is playing it very safe. Like Bush, he is afraid of the media.

[Alcibiades]

Someone may have done this already - but here is my go.

In other words, Fitzgerald will argue that, while others may have forgotten some facts, Libby appears to have forgotten only the facts which, if Plame were covert and he had known it, could lead one to conclude he was guilty. [Diagram that sentence. I dare you! Better yet, put it in standard english. Double dare you!]

While others may have forgotten some facts, Fitzgerald will argue that Libby appears to have forgotten only the facts which could lead one to conclude he was guilty if Plame were covert and he had known it.

[Sara (Squiggler]

I think Walton was trying to be fair, but he got lost and then the juror asked the Harlow question and suddenly he had his epiphany that the case wasn't at all about what he thought it was about. BUT ... is he blaming Fitz? or Wells? Hmmmmm.

[Sara (Squiggler]

off

[Jane]

It doesdn't bother me that he wants to ask a colleague. I think that is prudent. People always think that lawyers (and Judges) know every law on the books. Same for every evidence call and bit of procedure. It is simply not the case. And he's as mired down in this matter as the rest of us. I think it's in Libby's interest that he is open to another perspective. And I have great respect for his willingness to find it - and I will assume he is doing it in good faith.

[Sara (Squiggler]

Kate, the quote is from Matt Apuzzo's article. He is covering the trial and Clarice thinks quite highly of his coverage so far.

[Barney Frank]

kate,

--Oh, no. I thought the discuss with other judges and rule after lunch was a joke. He said that??--

He didn't say it in this instance, but last week he commented that he had discussed an issue at lunch with some other judges and it had helped him make his decision. What the issue was escapes me at the moment.

[centralcal]

Thank you, Jane, that sounds reassuring.

[kate]

Barney, Sarah. Thanks. I thought he was doing the consensus/lunch thing again. I can deal with one time. Judges are supposed to be able to make decisions. That's what they do.

[Sara (Squiggler]

Barney, although he did go ask a colleague last week, the quote is from today's court coverage. See above Apuzzo article.

[Sara (Squiggler]

Barney, although he did go ask a colleague last week, the quote is from today's court coverage. See above Apuzzo article.

[Rick Ballard]

"and I will assume he is doing it in good faith."

Me too. I believe that Walton's irritation concerning deviation from the CIPA script is real but I don't believe that he's been truly unfair in any significant respect.

It could be Tatel up there if we're going to discuss the wattage involved.

[Sue]

No Russert. I knew it.

[kate]

I just hope he doesn't start having focus groups or commisioning polls.

[Jane]

centracal,

That stuff happens to me every day of the week. "You are a lawyer, can you tell me how I can screw my husband in the divorce?"

I don't know the first thing about divorce law. You may as well ask your dog.

I've actually had people tell me they thought I was being mean because I wouldn't tell them. They assume, as a woman lawyer, I must for sure know do divorce law.

Looks like Wells is satisfied that Levine didn't tell him about the agreement - which doesn't pass the giggle test for me.

[jwest]

Walton came into this trial with the same conventional wisdom of most people. He thinks this whole matter stems from someone in the administration “outing” a CIA agent as revenge against her “whistleblower” husband debunking Bush’s lies about Iraq.

From his comments throughout the proceedings, he is just starting to grasp some of the basic facts and in doing so, a bit of the truth.

Still, without the airing of the big case, he’s still lost and his subconscious wants him to make decisions to help “justice” prevail. Trouble is, he still thinks the administration did something they want to cover up.

[Sue]

Remember people, next time you are in court, get your lawyer to testify for you. Keeps you out from under the perjury trap.

[Sara (Squiggler]

Judge: Defense Misled Court About Libby...

[PaulL]

Jane,

I think you mean Walton is satisfied. Wells is definitely not.

[Jane]

From FDL:

Walton: the letter's in the record. That's fair game. I don't fault counsel for not finding that out earlier. The timing for Russert to be called in vacuum and be asked on collatoral matter. It has minimum probative value.

What letter are we talking about?

[Sue]

Sara,

Un...freakin...believable.

[topsecretkk9]

Prosecutor mislead judge about reports.

Why does the Judge keep handicapping for Fitz?

[Jane]

Paul,

Right. My error.

[kate]

Do we have a scorecard on how often Walton ruled for Wells vice Fitz. I would guess that the score would be so lopsided that the ump would want to stop the game...

enough with the boring baseball analogy, kate!

[Jane]

Someone needs to tell Apuzzo that the defendant has no obligation to testify and no obligation to inform anyone about his decision until the defense rests.

[ARC: Brian]

Wow....

Ok so it seems theres PLENTY of stuff to appeal on if convicted on any count. Here's a question I have. If Libby is convicted, can he remain on bail, pending appeals? I seem to remember that Martha Stewart was going to go that route and decided she was losing too much money.

In Libby's case, he's got sort of a built in clock of January 2009 for the pardon. Him being able to stay out of jail pending appeals would certainly be preferable to him.

[Rick Ballard]

Sue,

Are you surprised that Cline is going to close rather than Wells or Jeffress? It's a very interesting tactic. All I can think is that the mock jury must have developed a marked antipathy toward the lead counsel.

[JM Hanes]

Clarice:
[This was what I was trying to post, when JOM locked me out this am!]

"As for Fitz' argument about the DoJ regs (hah) he didn't call his witness to explain, did he? I take it because cross exam would have established the govt could have asked Dickerson, Gregory and Mitchell and a whole passle more and didn't under Fits' obvious don't ask don't tell investigative approach."

That was an interesting reversal on Fitzgerald's part. His subsequent re-directs confirm that he was worried about how his handling of reporters might affect the jury. Dickerson, et al., though posed problems for the Defense as well. Yesterday afternoon, in front of Judge Walton, Wells said, per FDL:

Govt shouldn't be allowed to say they were involved in search for truth. They want to put the integrity of their search for the truth in play, I should be permitted to say to the jury that they didn't ask Russert about Gregory.

Fitzgerald observed:

Defense doesn't want to call Dickerson. They're trying to not call witnesses themselves and fault the govt.

They are both right! Fitz is not the only one who'd rather not look a gift horse in the mouth -- he's just the one obliged to do so. It doesn't ultimately help the Defense to have Gregory and Dickerson testifying that Fleischer had not leaked to them, because they'd rather let the jury think that Gregory, at least, did have full knowledge, ergo so did Russert.

Greg 'n Dick's testimony would undercut Fleischer's credibility, yes, but, more significantly, it would mitigate the desired impact of Mitchell's testimony, if it looks like one reporter knew & the other did not. That's probably why they wanted to impeach with Miller (who is on record as claiming insider knowledge) in the first palce, rather than taking a flier on Gregory (with no admissions to his credit). They wouldn't want to undercut the impression that Fleischer was leaking like a sieve and worried about his own skin as a result, either.

At any rate looks to me like TeamLibby was prepared to go a lot of different directions here. They certainly set up the language Fleischer used as a potential issue in attacking him on the source of his info. It will be interesting to see what they go with, and what they don't, in closing.

The speed with which they handled their side of the case, & the decision to rest at this particular juncture, suggests to me that they felt a lot of potential inferences they were prepared/preparing to argue were overly complex. Hence, what looks like the last minute the decision to dump Andrea Mitchell.

If the Prosecution had fought harder on cross, it might have been worth muddying the waters. Having breezed through the essentials of their case with hardly a speed bump, not so much. They'll get at Russert, if they can, and take whatever admissions from the SP they can wrangle, but what they want most is to keep their defense clean & sharp as a whistle, so to speak.

[ghostcat]

I'm inclined to cut Walton some slack. He's smack dab in the middle of history here. I'm guessing he'll give Wells another shot at Mr. Creosote with that wafer-thin mint.

[Sara (Squiggler]

Someone needs to tell Apuzzo that the defendant has no obligation to testify and no obligation to inform anyone about his decision until the defense rests.

Posted by: Jane | February 14, 2007 at 11:42 AM

Jane, it seems someone needs to inform Walton and Fitz.

[kate]

Now, Jane. You seem to forget that this is FitzLaw, everything is different in FitzLaw land.

Why, maybe Walton will encourage the jurors to consult with their family and friends before making a decision.

Judge "You can overrule me on appeal" can discuss that one with his friends at lunch tomorrow. It's unconventional, but I like it.

[centralcal]

Kate - there is nothing finer than classy snark! And so true, so true.

[clarice]

JMH--Do not forget that at the time Fleischer says he told Dickerson he was working for Time and at the time he said he told Gregory he was working for NBC and it is clear that Cooper was working w/ others on the team and Russert says what one of his team knows is shared. Not calling Gregory or Dickerson was a shrewd, gutsball play by the defense..Look for it in closing argument

Jujitsuing Fitz' don't ask, don't tell--or more honestly, since the prosecution is ethically barred from putting on the stand a witness whose testimony it has reason to believe is false--better for him to uncover no evidence that it was, even though it's right there in SLATE in black and white.]

PHEEH

[Sara (Squiggler]

FITZLAW -- give immunity to the criminals and prosecute the crime fighter. Seems that is the law that the border patrol agents were convicted under too. And, with much false testimony against them to boot.

[hit and run]

JM Hanes:
At any rate looks to me like TeamLibby was prepared to go a lot of different directions here.

So, yesterday, I think, the point was made that Fitz could see forever ahead but had blinders on and could not see in any other direction or something. Linear thinking....I'm not so eloquent but the point is the same.

Your statement above made me think how the defense has to guard against this as well.

"Here's our case. All we have to do is put him him her and her on the stand and ask a, b, c and d and we're home free." But not knowing what the prosecution will do, what the judge will rule, what some witness(es) might say, what evidence may come up unexpectedly, etc means there is an almost limitless number of turns the trial could take - and some very much in real time.

Your observation about the defense being prepared to go in a number of directions is just another example of the quality of the defense in their prepartion for (and execution of) this trial.

[centralcal]

I kind of feel bad. Ralph L. is all alone with you know who at the other thread.

[topsecretkk9]

It's funny Walton is fretting over Libby testifying. Don't you think the defense would love to yell "Yes Judge, we did expect to Libby up there, it's just we never imagined how really truly bad the prosecutor's case would be - we're shocked too!

[Sara (Squiggler]

I'm really surprised that Wells isn't doing the closing. Who did Clines question?

[Barney Frank]

Sara,

--Barney, although he did go ask a colleague last week, the quote is from today's court coverage. See above Apuzzo article.--

My point was that the quote in the article only says he'll decide later, and the inference is being made here that he'll again have lunch with and discuss it with colleagues. He may very well do that, but he only actually said anything along those lines last week, unless we were reading different articles.