Libby Trial Judge: Defense Misled on Libby Taking Stand

Judge Reggie Walton castigated the Libby defense team yesterday for closing the case without calling their client, Lewis “Scooter” Libby, to the stand.

Judge Walton said he “believed all along in the process that Mr. Libby was going to testify” and that his lawyers were now “playing games with the process.” He made his remarks out with the jury out of the courtroom as he ruled that the defense would no longer be able to use some evidence, including something the jury had already heard: a statement the government agreed to saying Mr. Libby, as chief of staff and national security adviser to Vice President Dick Cheney, “worked long hours, received daily intelligence briefings and attended many meetings concerning important matters of national security.”

[…]

Judge Walton said his ruling meant that the chief defense lawyer, Theodore V. Wells Jr., would not be able to make that argument to the jury. Mr. Wells will be permitted to tell the jury that Mr. Libby had “a lot on his plate,” Judge Walton said. But because Mr. Libby is not testifying, Mr. Wells cannot argue that those issues were of greater importance in Mr. Libby’s mind “as compared to the issue of Valerie Plame and Ambassador Wilson.”

[…]

Judge Walton said he would be shocked if he were reversed on appeal over his rulings about Mr. Libby’s not testifying. If that happens, he said, “I’ll hang up my spurs.”

I don’t know the rules of evidence on these matters but Judge Walton made it quite clear before the trial started that “the memory defense” was only permissible if the defendant testified. He made it seem that this was a matter of legal precedent, not his own whim. The defense team did not protest that, giving me the impression they agreed that this was in fact the way it usually worked.

Wells and company–while never directly saying Libby would testify–certainly gave every impression that they were going to call their client to the stand. As a result, Walton made several key early rulings on evidence, the preliminary jury charge, and overruling objections to memory defense-related cross examination of prosecution witnesses. He’s right to be steamed.

UPDATE: Marcy Wheeler live-blogged the exchange and the defense at least offered a plausible explanation that, while they intended to bring Libby to the stand, they think they’ve made their point with other witnesses. Further, Walton comes across as much less peeved than Neil Lewis’ NYT report suggests:

[Wells:] We thought there was a high likelihood Libby would testify. In December 20, 22, we for the first time received Jencks, before that time, we had no access, we did not know that witnesses like Grenier and Schmall had an utter lack of recollection. Once we got Jencks, our perception of case began to change, nonetheless we continued to think high probability that Libby would testify. We had no idea that that GJ material showed us. Nor did we know until cross Miller that it would be dismissed. Nor did we know until we examined Cooper where we think evidence shows that it’s in the notes. We’ve proceeded at all times in good faith. To the extent there’s concern on your honors part that counsel was playing fast and loose, that’s not so. We spent hours working on preparing Vice President. We spent hours preparing to put Libby on the stand. We had to make decision based on our confidence that govt had proven their case beyond reasonable doubt. There’s no box that says innocent or did you tell full story. I’m the one that makes the call, my recommendation along with Jeffress. I had the VP on hold right up until the last minute. We had him ready to testify on Thursday. He had his schedule open. I want to make clear we’ve been upfront at all time. We’ve got to make decisions that are in clients best interest. Once we saw Jencks, our view radically changed, based on what we felt was performance of witnesses.

Walton I assume these are based on AP article entitled Judge: Libby misleads Judge. I did not intend to suggest there had been intentional misleading on that matter. It was indicated by Cline that there was a qualification. I assume based on what you’re saying now, that it was not an indication. I accept that as an accurate statement. To extent that changes can be made in newspaper articles that have already been out.

Wells: Thank you.

That seems quite reasonable. I noted during my live-blogging in the first week of the trial that the first several prosecution witnesses indeed displayed a REMARKABLE lack of memory about almost everything and that this would surely play into the defense’s hands. I don’t know the law here but defense closing arguments should surely be allowed to argue that, if the government witnesses–who presumably had less “on their plates” than the VP’s chief of staff/national security advisor–couldn’t remember those details that it’s fair to conclude Libby could be excused for mixing up the sequence of events in his own head.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Anderson says:

    if the government witnesses—who presumably had less “on their plates” than the VP’s chief of staff/national security advisor—couldn’t remember those details that it’s fair to conclude Libby could be excused for mixing up the sequence of events in his own head.

    Uh-uh. That’s like claiming your car’s A/C was bad because the A/C on 3 different cars was bad, without letting anyone look under your hood.

    The defense should absolutely be barred from raising any such issue as to Libby’s memory without Libby’s taking the stand. They have no factual predicate for it. There’s no such thing as “memory” in general — the only memory that matters here is Libby’s.

    Personally, I don’t think the grand jury testimony will support any such defense, which is perhaps why the defense won’t call him.

  2. James Joyner says:

    Anderson,

    I get why they can’t introduce facts not in evidence into the closing arguments. On the other hand, it strikes me as perfectly reasonable to argue that if the people who told Libby about Plame didn’t remember much about it, why should Libby?

    The defense doesn’t have to prove Libby didn’t remember–the prosecution has to prove that he did and was lying.

    You’re the attorney, so maybe you can shed more light on this.

  3. jpe says:

    At least one witness testified to Libby’s generally bad memory. That people without lousy memories could barely remember what happened makes reasonable the inference that Libby didn’t remember.

  4. Anderson says:

    I get why they can’t introduce facts not in evidence into the closing arguments. On the other hand, it strikes me as perfectly reasonable to argue that if the people who told Libby about Plame didn’t remember much about it, why should Libby?

    That’s not really a “memory defense” in the sense of “Libby has a bad memory,” which may show why this is a confusing topic (& lawyers thrive on confusion).

    Saying “Plame wasn’t a big deal, why remember it?” isn’t really a statement about Libby’s memory. It’s a statement about Plame & her relative unimportance. The jury can consider that, but the feds did a pretty good job making that seem implausible (“beyond a reasonable doubt” may be another matter).

    But the specific claim that Libby has a bad memory *in general*, not just about Plame, would I think require that he take the stand, though it’s not like I’ve researched the point. I just don’t see how else you can get that in.

    The defense doesn’t have to prove Libby didn’t remember—the prosecution has to prove that he did and was lying.

    Sure, but see above for why the feds have done a good job on that.

  5. paul lukasiak says:

    I noted during my live-blogging in the first week of the trial that the first several prosecution witnesses indeed displayed a REMARKABLE lack of memory about almost everything and that this would surely play into the defense’s hands. I don’t know the law here but defense closing arguments should surely be allowed to argue that, if the government witnesses—who presumably had less “on their plates” than the VP’s chief of staff/national security advisor—couldn’t remember those details that it’s fair to conclude Libby could be excused for mixing up the sequence of events in his own head.

    a few points…

    1) the reason that those witnesses were called was not to testify about what they remembered so much as it was to verify the authenticity and explain the context of documents entered into evidence.

    2) with a couple of exceptions, all of the relevant facts concerning Libby’s extensive prior knowledge and actions concerning the Wilsons was “double sourced” …. i.e. either two people remembered the same thing (Martin backing up Cooper) or notes backed up memories.

    3) people’s memories are much better about things that are important to them than they are about things that are unimportant to them. Thus, it is unsurprising that witnesses would not recall unimportant details in this case. What is critical is that Libby found the subject of the Wilson’s important enough to be asking questions about it, and telling others about it.

    **********

    As to Team Libby’s claim that their plans to have Libby testify changed after receiving Jencks material in December, that’s obviously BS. First, given the intent to use the “memory” defense, TeamLibby had to know that the prosecution witnesses would not have had perfect recall, and would have been looking to exploit any instances of “i don’t recall” found in their statements. Secondly, TeamLibby continued to enter evidence that was ruled admissible solely because Libby was expected to testify with the full knowledge that they would be trying to keep Libby off the stand.

    ***********

    final observation — Fitz has done a lousy job of establishing motive for Libby to lie and obstruct justice — and should have put on a better “rebuttal” case (specifically, calling Cheney as a hostile witness). I hope that his plan is to use the documents that have been entered into evidence to establish Libby’s motive– i.e. that Libby was covering up the manipulation of intelligence by the OVP. There is enough information in the various exhibits presented to the jury to establish that intelligence was manipulated — and that Libby was part of an effort to hide that manipulation by discrediting Wilson — then lied about his role in it.

  6. James Joyner says:

    the reason that those witnesses were called was not to testify about what they remembered so much as it was to verify the authenticity and explain the context of documents entered into evidence.

    True enough. My point isn’t that they’re mistaken about what they told Libby but that, rather clearly, they told him that as an interesting aside. None of them considered it particularly important at the time.

    I haven’t paid close attention to the testimony after I left the trial, as I was off in California the next week and scrambling to get an article written the next. So there may have been some really good stuff introduced that I’m only vaguely aware of. But it strikes me as reasonable to conclude that the testimony of the witnesses provided enough reasonable doubt that calling Libby was no longer needed.

    What’s the rule? Libby has a 5th Amendment right not to testify and, one would think, a 6th Amendment right to counsel’s best evolving judgment. Can they not decide, when the rubber hits the road, that they don’t want Libby to testify?

    I hope that his plan is to use the documents that have been entered into evidence to establish Libby’s motive— i.e. that Libby was covering up the manipulation of intelligence by the OVP.

    I don’t know the law here. Can they introduce an entirely new theory of the crime in closing arguments?!

  7. Anderson says:

    I hope that his plan is to use the documents that have been entered into evidence to establish Libby’s motive— i.e. that Libby was covering up the manipulation of intelligence by the OVP.

    Well, yeah — due deference is one thing, but of course the feds have to go here.

    I dunno about calling Cheney. One, I don’t know whether Cheney would’ve testified. Two, I doubt it would’ve helped — Cheney would’ve probably insisted on executive privilege, the trial would get sidetracked, & the jury would get lost. Three, Cheney would lie & there would be little hope of proving it.

  8. paul lukasiak says:

    What’s the rule? Libby has a 5th Amendment right not to testify and, one would think, a 6th Amendment right to counsel’s best evolving judgment. Can they not decide, when the rubber hits the road, that they don’t want Libby to testify?

    both are true…but what is also true is that both prosecution and defense attorney’s are considered “officers of the court” — and are both expected/required to act in an ethical fashion. And while “prosecutorial misconduct” gets far more attention, “defense misconduct” also exists. The problem, of course, is in proving intent on the part of the lawyers involved.

    In this case, I think that TeamLibby has been dishonest with the judge regarding why Libby isn’t testifying — my guess is that decision was finalized when the defense heard Libby’s grand jury tapes, and realized he’d be a disaster on the stand because his story made no sense. (and the same goes for why Cheney wasn’t called — Shooter’s credibility would have been shredded during cross-examination, and given the emphasis placed on Cheney during voir dire of the jury, a bad performance by him would have sealed Libby’s fate.)

    So there may have been some really good stuff introduced that I’m only vaguely aware of.

    IMHO, Ari’s testimony pretty much sealed the deal for the prosecution — were you there for that?

    It seems to me that TeamLibby isn’t really trying to establish “reasonable doubt” about the actual charges — but that Fitz is right, and Wells is going for jury nullification. He just needs one juror who refuses to vote guilty to hang the jury and keep his client out of jail for another couple of months….

    I don’t know the law here. Can they introduce an entirely new theory of the crime in closing arguments?!

    I do know that they can’t bring up evidence not presented during the trial, but AFAIK there is no prohibition against coming up with a new explanation during closing arguments. That being said, because so many documents/articles were included under the condition that they not be considered as factual, but only considered within the context of how they would affect Libby’s “state of mind”, its possible that Walton would prohibit the argument I’m suggesting because of the prejudicial nature of the documents in question.

  9. James Joyner says:

    Ari’s testimony pretty much sealed the deal for the prosecution — were you there for that?

    No, that was very literally the next court day after my slot.

    I think there’s reasonable doubt here as to Libby’s state of mind, given that there’s no obvious motive to lie when he wasn’t remotely involved in leaking Plame’s name to Novak. I think, too, that there’s an argument for jury nullification here, given that any lie told had no negative impact on the Plame investigation, in that no crime was found worthy of indictment.

    I think it all comes down to the predisposition of the jury which, I continue to believe, is anti-administration. It may well be, though, that there aren’t 12 votes to convict. In that case, I’m not sure whether there’s enough there there to go through this again.

  10. I wonder how many of the jurors sitting in actual judgment of Mr. Libby have the detailed and nuanced understanding as the commenters here of the issues raised in these comments?

  11. Steve Verdon says:

    I’m a bit confused here. It seems to me that Libby’s defense is “I have a bad memory.” Further, that he has the right not to testify. But Anderson and Paul L. are saying that for Libby to use that “I have a bad memory” defense he must testify and thus depriving Libby of his 5th Amendment right. I know I have a crappy memory, I have to work at remembering things. But does this fact necessitate that I take the stand if I ever want to use that defense? Seems like there might be other ways to introduce the notion of “bad memory”.

  12. graywolf says:

    It seems that everyone (blogging and commenting) has missed the obvious:
    Libby should be on trial for stupidity.
    He deserves what he gets.

    When he (and any of the rest of this collection of losers AKA the Bush Administration) talked to reporters from viruently Bush-hating media, what did they think would happen.

    I survived/thrived corporate life for many years. One of my rules: know the enemy and do everything legally possible to destroy them.
    I certainly didn’t “do lunch” or take calls from people who were out to destroy my organization

    This is a bunch of inside-the-beltway schmoozing amateurs who spend most of their days navel-gazing and socializing with the enemy (and the press IS the enemy).

    No wonder the war in Iraq is a mess.

  13. Mark Ward says:

    I still don’t get it…

    If there was NO underlying crime (Valerie Plame was not, in fact, a covert agent whose identity was illegally exposed) – and we KNOW that there was no underlying crime, as NO ONE has been charged with that crime – then HOW can ANYTHING which was said (by Scooter Libby or anyone else for that matter) be considered PERJURY?

    I thought PERJURY required lying about a MATERIAL MATTER (related to the case at hand)…

    Bad memory or not, to whom Scooter Libby may have said that Valerie Plame was Joe Wilson’s Wife and/or that she worked for the CIA, and/or from whom Scooter learned of Valerie Plame does NOT PERJURY make…

    None of the above makes Valerie Plame into a COVERT CIA agent whose identity was revealed…

    Again, NO ONE has been charged with THAT crime!