CNN & HuffPo: Libby Judge Says Cheney Should Have Taken Stand

[understandinglife]

Libby Judge Says Cheney Should Have Taken Stand
CNN | Posted March 2, 2007 10:49 PM

WASHINGTON (CNN) -- The judge in the criminal trial of Lewis "Scooter" Libby is making it clear for the historic record that he thought the defendant would take the stand, and that the presumption figured strongly into his decisions about classified material he would have allowed into evidence.

U.S. District Judge Reggie Walton also suggests the defense could have improved the prospects for acquittal of their client had they called Vice President Dick Cheney to the stand.

Links:

http://www.huffingtonpost.com/2007/03/02/libby-judge-says-cheney-s_n_42512.html

Libby trial judge writes memorandum outlining reasons behind decisions on evidence

WASHINGTON (CNN) -- The judge in the criminal trial of Lewis "Scooter" Libby is making it clear for the historic record that he thought the defendant would take the stand, and that the presumption figured strongly into his decisions about classified material he would have allowed into evidence.

U.S. District Judge Reggie Walton also suggests the defense could have improved the prospects for acquittal of their client had they called Vice President Dick Cheney to the stand.

The jury has deliberated eight days so far on a five-count indictment against Libby, Cheney's former chief of staff.

Walton's comments were made in a "memorandum opinion" written to "memorialize" the basis for some of his decision-making during the trial. Although somewhat unusual, the written record elaborating on bench discussions may help an appeals court explore his decisions should any jury verdict be challenged. --From CNN's Paul Courson

http://edition.cnn.com/2007/WORLD/europe/03/02/friday/index.html

Interesting ....

[opihimoimoi]

1. Reminds me of THE RUN A WAY JURY gene hackman, etc

[Kagemusha]

2. It's not just for the appeal...

It's for future instances of trying to graymail prosecutions into the ground by making conditional claims based on which you go through legal arguments over the course of multiple months, only to change the condition on which those claims were based, which was the testimony of your defendant, citing the defendant's right not to take the stand.

[Peace Patriot]

3. Wow, it could be read as the judge saying that Libby would have had a fairer trial

if Cheney had confessed!

The revelations of the trial certainly point that way--that Cheney was mastermind of the conspiracy, and that Libby is covering up for Cheney. That seems to be what prosecutor Fitzgerald believes. Fitz doesn't cotton to the idea of "I was only following orders"--not for someone in Libby's high position (national security adviser, aide to both Cheney and Bush)--so he has nailed Libby for lying and obstruction. But what if Cheney had admitted his role on the stand? Then a jury might be inclined toward mercy for Libby.

I haven't read these docs, so I'm not sure about this (what Walton is saying, or implying), but my first hit on it is that Walton is coming close to saying that Cheney is guilty.

The defense really did a number on Walton. They implied that Libby himself, and also Cheney and Rove, would take the stand, and extracted certain rulings from Walton on allowable defense arguments and other matters, on that basis. Then they DIDN'T call any of the three for testimony during the trial. I imagine that Walton feels somewhat pissed off, and used. He made certain decisions based on what the defense led him to believe, then they switched tactics. This was especially apparent on the "bad memory" defense. It is a defense that the accused really needs to take the stand and defend himself on. Because who else can rightfully claim that he did or didn't have a "bad memory" on the details of his lies? The defense also rashly stated, in its opening remarks, that Libby was the victim of a conspiracy by the White House and Rove to scapegoat Libby, but they produced no witnesses--Rove, for instance--to support this, and the only evidence they produced was a quite damning Cheney memo, in which he told Scot McClellan (White House PR flak) to "exonerate" Libby as he had done for Rove. The memo has the word "Pres." (confirmed as meaning "President") crossed out by Cheney, in a sentence that implies that Bush put Libby on the mission of discrediting Joe Wilson. The scapegoating argument is also kind of funny, in that it implies the NEED for a scapegoat--i.e., a crime was committed. In any case, the defense was all over the map, looking for some defense of Libby and his lies. And that cannot have pleased a judge. I imagine that he was tempted to shut them down, but thought the better of it, since the burden of proof is on the prosecution, not the defense. The defense doesn't have to prove anything--but merely plant reasonable doubts against the prosecution's charges.

On those charges, Fitzgerald and his team made a brilliant case for Libby's lies and obstruction. These are hard charges to prove beyond a reasonable doubt, and I imagine that this was one of the best presentations of this kind of case. Libby didn't just lie--he made things up out of whole cloth. And his contradictions of himself are egregious. Fitzgerald laid it out very clearly and logically, with volumes of witnesses and other evidence. If the jury is paying attention to the evidence--and they certainly seem to be doing that--they will convict on most, and possibly on all, counts.

In view of the defense's behavior, an appellate court, and the Supreme Court (if it gets that far), will need Walton's explanations to understand his rulings, and what the defense was permitted to get away with. Walton bent over backward to allow them to defend their client as well as they thought they could. It may also be useful in future prosecutions in this investigation, in related investigations, and perhaps also in unrelated but similar cases. Also, it would appear that Walton is planning for the probability of Libby's conviction. Judges do not like to be overturned on appeal. He wants to insure that an outcome against Libby holds up on appeal.

Kudos to the legal bloggers at Firedoglake--where I have gotten my info about this trial, in their amazing live blogging transcription, day after day. If my remarks are at all helpful in understanding this news item, it is largely due to their pioneering reportage.

[KoKo]

5. Interesting points Peace Patriot. Thanks! n/t

[DemReadingDU]

4. But why is the judge talking now?

Shouldn't he be keeping quiet as the jury is still deliberating?

Edit to add - Maybe Walton didn't talk. Maybe somebody is putting words out there. It's really hard to believe anything that is on the MSM.