Judge Walton's Memorandum Opinion (Doc. 310)

[H2O Man]

On March 2, 2007, Judge Reggie Walton filed a Memorandum Opinion (Document 310) in the Scooter Libby criminal trial. A few reports have misrepresented an important part of this document, and I have noticed that in a couple DU threads discussing the document, there was a related misunderstanding about another issue. I thought that it might be worth taking a closer look at both of these, and a third issue that I find interesting.

Let’s start with the issue I think shows us how Team Libby has attempted to confuse issues, to distract attention from Scooter’s criminal activities. And that has to do with an October 2003 interview that journalist Andrea Mitchell gave. Here is the "controversial" part:

Q: And the second question is: Do we have any idea how widely known it was in Washington that Joe Wilson’s wife worked for the CIA?

Mitchell: It was widely known amongst those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger. But I frankly wasn’t aware of her actual role at the CIA and the fact that she had a covert role involving weapons of mass destruction, not until Bob Novak wrote it. ( Page 3; footnote 3)

Now, although Mitchell would correct the error, and take responsibility for the confusion she mistakenly created, Team Libby wanted to introduce this as evidence that Russert knew of Plame when he spoke to Libby. Judge Walton correctly ruled it was not to be introduced. Think about it: how likely is it that journalists were searching for the identity of Joseph Wilson, and all they had to go on to find this mystery man was the fact that his wife was Valerie Plame, CIA employee? Think about it.

Next, some reports have said that Judge Walton wrote that having VP Cheney testify would have helped Libby’s case. That is misleading. On page 29, footnote 21, we read what he actually wrote:

"Moreover, the defendant could have called the Vice President to testify concerning the issues he directed the defendant to address and upon which the Vice President expected the defendant would devote his time and attention."

That does not state that VP Cheney would have "helped" Libby’s case. Nor does it imply it. What Judge Walton was addressing was the ability of Team Libby to introduce evidence to support his "memory defense." The judge does not take any position in regard to if VP Cheney would have either helped or hurt the defense. He merely states that Team Libby failed to take advantage of the opportunity to call a witness who they suggested could help Scooter.

This brings us to the last issue that I want to discuss. Some DUers believed that Judge Walton had ruled that Team Libby would not be able to use a memory defense, if he did not testify. That is largely the result of reading partially accurate "transcripts" and having journalists in the corporate media take things out of context. Those who have been reading the court documents closely were aware of this. And Judge Walton addresses the issue in the new document.

"The defendant’s decision not to testify did not preclude him entirely from presenting his memory defense to the jury. Rather, it simply limited the scope of that defense and what he could argue." (page 25)

Team Libby wanted to introduce evidence that not only told what amount and what type of issues Scooter had to deal with every day, but also to have it presented to the jury that Scooter was "consumed" by these issues, and that he placed far more attention on them than on the Wilson/Plame "problem." Judge Walton ruled that in order to introduce the evidence regarding what "consumed" Scooter, Libby would have to testify. That’s known as making a foundation – because no one else can really say how important any issue was to Scooter, compared to the Wilson/Plame "problem," except Scooter himself.

Judge Walton noted that allowing Team Libby to do this would "have relieved him of the burden of laying a sufficient foundation … and would have insulated him from cross-examination on this point." (page 20) Allowing Team Libby to do so "would have provided the government no opportunity to cross-examine him on the extent and nature of his concern about these issues, with the result that the jury would have been presented an entirely one-dimensional, one-sided portrayal of the defendant’s state of mind with respect to these issues." (page 22)

It is important for DUers to take advantage of the opportunity to read the documents from the Libby case. If you "google" Case 1:05-cr-00394-RBW, or go to the blogs with links to these documents, you can enjoy the chance to read much more.

[CorpGovActivist]

1. Primary Docs Rock

Thank you for the important reminder that - in this day and age - there is little or no excuse not to bypass the MSM and look at the primary docs.

- Dave

[annabanana]

2. Thank you for addressing this... I was wondering

why it was so tricky when I read it at firedoglake, and so damned simple on the evening news.. (That combo has become a real red flag)

About the notes from the jury at closing of deliberations on Friday. . I think I understand the one regarding "reasonable doubt". .
But the first one, (where apparently a juror was looking for "quotes" in a paraphrased account) has me turned a bit inside out. Can you help?

[H2O Man]

5. I have always liked

the information that Vince Bugliosi provided in his classic book "Outrage." Here are a couple samples:

"What is a reasonable doubt? As I pointed out in the Epilogue, it does not lend itself to a definition, and the attempt to define it only confuses further, but I always told juries, without objection from the judge or opposing defense counsel, that a reasonable doubt was 'a sound, sensible, logical doubt based on the evidence in the case'." (page 251)

"...laypeople's erroneous impression (is) that guilt has to be proved 'beyond a shadow of a doubt'." (page 2510

There is also an interesting section called "Unreasonable doubts" (pages 364-366), which deals with how one exposes the attempts that the defense attorneys for "guilty-as-sin" clients -- such as Scooter -- make to try to confuse people.

[spanone]

3. Thanks for the google link: as always, informative and articulate.

[Garbo 2004]

4. K & R. n/t

[Peace Patriot]

6. Thanks for the clarity! You are, as always, a brick, H20 Man--as they used to say.

As one of the people who ran with the sloppy reports on Walton's memoranda, I am chagrined at the possibility that I over-interpreted them. But I still think the memos are unusual, and point to Walton's irritation with the defense lawyers, in drawing rulings from him on false statements of what their defense was going to be (calling Libby, for instance, for the "bad memory" defense)--then switching tactics--so that he has to explain certain of his rulings, in an effort to keep from being reversed on appeal. He was, in truth, very indulgent toward the defense, in an excess of caution that the defense be able to defend their client as well as they could (which was not very well). (Libby is guilty as hell, in a case that was very well laid out by prosecutor Fitzgerald and team.) I think the memos indicate that Walton thinks that Libby is going to be convicted. I also still think that his reference to Cheney being called for the "bad memory" defense is very pointed--and points beyond the case. If Libby is guilty of perjury--which he most certainly is (whatever the jury decides in this high profile case with real scary players)--then questions about his boss arise logically, and also arose from the evidence. Is Libby covering for his boss? It sure looks like it. Is his boss covering for Bush? There is some evidence of it. Walton doesn't have to mention this "for instance" in his memo (re: what Libby's lawyers could have done on the "bad memory" defense). A judge doesn't mention the Vice President's name casually, in a "for instance." I suspect that Walton thinks that, if Cheney had taken the stand and admitted that he was responsible for the Plame outings (--and had taken his licking by Congress like a man), the jury would have some reason for mercy toward Libby (as an official taking orders from the V-P). Cheney obviously refused--to do that on his own initiative, or to take the stand and risk further exposure in a Fitzgerald cross-examination--and continues to hide behind Libby.

One legal question I have: Why would Fitzgerald have been unable to cross-examine Libby on the "bad memory" defense, if Libby had taken the stand in his own defense? I've never heard of that prohibition before. I always thought that the danger to Libby of taking the stand--and why he didn't take the stand--was a Fitzgerald cross.

My own question: Are they all covering up not just the conspiracy to out Plame and the Brewster-Jennings network, but something worse that lay behind that coverup. My guess: covering up what Rumsfeld was doing--probably trying to plant WMDs in Iraq--and carrying out a hot war with the honest professionals in the CIA. Very possible, with these players--and I think there are many things that point to this--including Rumsfeld's ouster from the Pentagon, with no change of policy in Iraq. So it wasn't the '06 elections--what do they care about the voters anyway?; and it wasn't the disaster in Iraq; and it wasn't the big game plan--destruction of the Iranian government and seizure of their oil fields. That still seems to be Bush and Cheney's agenda. What was it? I've seen reports that it was Rumsfeld's real dirty black ops, including secret prisons around the world, etc. Gates is supposed to clean that up. And that fits with the WMD-planting theory of Traitorgate; also the concoction of the Niger forgeries. What did they need most in summer 2003? A "find" of WMDs in Iraq. Why would they be so panicked by an ex-diplomat's op-ed, in a newsstream that they almost entirely controlled in 2003? They weren't. They expected it. What they were panicked about was who was foiling their nefarious scheme to plant the weapons, and who knew about it. In this theory, Rumsfeld was running the operational end of this particular part of the war conspiracy (getting the weapons planted); Cheney was running the political end (getting the Niger nuke allegation put back in Bush's speeches, etc.), and Cheney is still dealing with the political and legal consequences of Rumsfeld's failure to get the weapons planted and "found." (And possibly their feeling is that, with Rumsfeld out of power, there will be less interest in pursuing what they were really up to; or, someone got the goods on Rumsfeld and forced him out). (Note: The secret torture dungeons could have been for eliminating witnesses and whistleblowers, re: the WMD planting scheme--among other things.)

[bleever]

7. I think the answer to the cross-examination question

is that Walton was saying that if Libby did NOT take the stand and lay the foundation for the state-of-mind defense, the government would be deprived of its right to cross examine, while Scooter was allowed to put it forward as a defense.

I was a little confused on that point too at first.

[H2O Man]

9. The inability

to cross-examine would only have been a factor if Scooter's attorneys were able to argue that the PDBs were of greater to significance to Libby, than the Wilson/Plame business .... rather than Scooter testifying to it. Had Scooter testified, Mr. Fitzgerald was ready to do an intensive cross-examination, and Judge Walton would have allowed it. That was the part of the memory defense that was excluded due to Libby's decision not to testify. If you re-read what Judge Walton said, that should be clear.

I think that Mr. Fitzgerald's rebuttal made clear that he believes there is a reason Libby lied to the FBI and grand jury that has yet to be presented in court.

[Peace Patriot]

10. Interesting spec. What do you think it is?

I got that Libby had just been apprised of the seriousness of outing Plame and her network (people could die), when he talked to the FBI, and had motive to lie, to protect his own skin. I also got that Libby was positively making up stories--not just lying or obscuring--but inventing things, to hide the fact that it was Cheney who told him of Plame's identity, not newsmen (--and that the newsmen thing was part of conspiratorial disinformation campaign, trying to make it look like "everybody knew.") What would be the additional motive for Libby's lies that Fitzgerald did not present? Do you mean some hidden story behind this conspiracy--as I strongly tend to believe?

I have also thought of Mr. True Believer NeoCon Libby, thinking he is falling on his sword for the Grand Scheme--he hints at it in his "aspens" letter, in the part where he says all the "aspens" (Bushite bigwigs) are now turning together (in common purpose), and Judith Miller should "come back to life--and work" in order to cover the next developments (he frames it as Iran's bioweapons, as I recall.) (Having failed to plant nukes in Iraq, do they still have plans to plant bio-weapons on Iran?).

[H2O Man]

11. I have thought

from 2003 on, that the OVP/OSP was intent upon derailing some work being done by people associated with Valerie Plame.

[Garbo 2004]

12. One thing to also consider in context of 2003: Libby & Co expected the DOJ investigation would

go nowhere. They could lie to investigators in Fall 2003, cite journalists who wouldn't provide contrary evidence, who wouldn't be forced to give evidence. They thought they could roll the "earthmovers" over the investigation and had done so. Until Ashcroft was basically forced to recuse himself and Fitzgerald was appointed at the end of 2003.

(I suspect Ashcroft recused himself not merely because of a possible "appearance" of conflict of interests with his Rove association or because of pressure from some in Congress. I suspect the senior DOJ officials that met with Ashcroft re: recusal had more than that on Ashcroft, something perhaps that could have implicated Ashcroft himself in compromising/obstructing the investigation and that's why he recused himself. Were Ashcroft and/or his staff like Corallo and Comstock or others feeding info back to the subjects of the investigation? Corrallo and Comstock later went on to be the legal teams' PR flacks for Rove and Libby respectively.)

Libby was stuck with his earlier statements to investigators as Fitzgerald kept on digging with a grand jury investigation. Journalists either cooperated or were forced to talk. The previous lies and eplanations had not been devised to withstand that amount of scrutiny. That the investigation would go that far had not been forseen. Libby, caught in his lies could only fall back on the flimsy "memory defense." Libby was committed to his lies. The alternative would be to roll over on himself and his beloved boss. And reportedly Fitz wasn't going to give Libby a "get out of jail" card even if Libby flipped.

They took the nation to war based on lies, they were warring with the parts of the intel community that hadn't and weren't just rolling over for them. Part of Libby's purpose in talking to Judy Miller was not just to discredit Wilson but also those at the CIA that were suggesting the Administration had lied us into war. Remember, Miller said Libby was pissed at the CIA. Not coincidence IMO that after Tenet left Goss was appointed to oversee a house cleaning at the CIA and exert tighter control over the CIA by the Administration.

[H2O Man]

18. I think that

Ashcroft would have recused himself on Day One, if he had not wanted to maintain some degree of control of the investigation. Several congressional leaders had asked him to step aside and/or appoint someone else, and he refused, even with the obvious conflict of interests.

It's funny how some republicans would turn on James Comey, and question his loyalty, when he granted Mr. Fitzgerald the powers needed to investigate the scandal. Comey had encouraged Ashcroft to step aside. Some of "the good old boys" couldn't understand why Comey would want to take an ethical stand on an important case.

The Miller aspect is important. I think Scooter's calling Joseph Wilson a "CIA covert guy" goes a long ways in explaining his mindset. I do not think he expected Miller would ever tell the truth (or a modified version of it). When she found out he had lied to her about the NIE, I suspect her loyalty to "source Scooter" was greatly reduced.

[Me.]

8. Thank You For Clarifying The Walton Cheney Statement

It didn't seem like something the judge would say. Throughout this trial he has been mindful of potential appeals based on his rulings. Such an overt opinion about Cheney's testifying would, I think, be out of character for him.

There is one matter I would like some clarification on and that is when the judge supposedly said it would be suicide (regarding the memory defense) for Libby not to testify.

[H2O Man]

19. In a perjury case,

it is generally fairly hard to get a conviction, if the defendant takes the stand and appears sincere. It doesn't mean the defendant has to prove that he did not make a mistake when speaking to the investigator or grand jury. Just that he was not intentionally attempting to mislead anyone.

If Libby had attempted to do this, it would have built the foundation to bring in a significant amount of other evidence that would have potentially convinced the jury that Scooter was really just so busy keeping America safe, that he was simply confused about a couple conversations with journalists. In attempting to create a serious "memory defense," his attorneys need him to take the stand, so that they can build upon it.

It is safe to assume that they were aware that Mr. Fitzgerald's cross-examination would have provided the jury with something far more powerful than the things Team Libby would have constructed on Libby's "foundation."

[Patsy Stone]

13. In that footnote

Walton does the defense's work for them (after the fact) by pointing out other ways the defense could have brought in the evidence from the denied Statement (Hannah, Addington, former administrative assistant, Cheney). Wells argued Libby was denied Fifth and Sixth Amendment protections by the refusal to allow the Statement to be admitted.

The more I read through this yesterday, the more I kept thinking that Wells was a man without a plan, throwing anything against the wall at several turns throughout this, and Walton was over it.

[KoKo]

14. Thanks......this case becomes so confusing...and trying to keep up

boggles the mind. Thanks for the focus!

[Catherine Vincent]

15. K&R!

Why read all that when we have folks like you to do it for us, H2O Man? ;-) :hi:

[Spazito]

16. The Memorandum Opinion explained quite well....

why statements made in the defense's opening statement became inadmissible due to Libby not testifying. It also made it much more understandable why their opening statement seemed disjointed after the defense rested their case without covering much of what was in their opening statement. It was because the evidence the judge had ruled admissible, during the CIPA hearings, was predicated on the understanding that Libby would testify. Once the decision was made that Libby would not testify, the evidence became inadmissible because the evidence, on it's own, could not address the "state of mind" defense, only with the defendent testifying as to his state of mind with regard to the evidence could it be deemed admissible.

The Opinion makes for very interesting reading.

[H2O Man]

17. Right.

I think it is an interesting, important document. I think that Judge Walton made a statement about some of the issues that he suspects that Team Libby will use in their appeal.

[Spazito]

20. I agree, the matters covered by Judge Walton in this Opinion

were raised by the defense once they revealed Libby was not going to testify. Reading the Opinion and then going back to the day these issues were discussed makes the issues and the underlying reasons for the concerns of the defense, the prosecution and Judge Walton much clearer.


Here is the key discussion between Judge Walton, Fitzgerald and Wells, taken from firedoglake live blogging from February 14th, it is NOT a transcript but close enough, imo:

Walton I'll think about it over lunch. Statement admitting facts, the problem I have with it in its entirety. What that entire statement tries to do is get his testimony in through the back door, otherwise now, he gets this evidence before the jury. It's cumulative, because we've also heard from the witness who testified yesterday.

Cline You're correct that it's a substitute

Walton I just don't buy that counselor. If you want an admission from the govt, you should have said, we want you to enter into this whether or not he testifies. You can't suggest he's going to testify, then hear Libby's testimony without hearing from him

Cline We believe govt was on notice. We relied on being able to use this. Wells read it in opening.

Walton DUring the entire course of hearings, it was my absolute understanding that Liby was going to testify. The basis for my rulings was predicated on him testifying.

Cline The question is, where are we,

Walton To the extent that that statement puts before Libby's testimony, that was a substitute for Libby's testimony because of classified info. How can you susbtitute anything.

Cline you don't get to question an admission.

Walton if the Appeals court wants to tell me, I think we turn this whole process into a game, This is supposed to be about finding the truth. When we play games with the process–there are already too many games as there are.

Fitz We proceeded based on Libby testifying. We were offering that as a substitution that Libby wanted to offer through his testimony. It was not my understanding that it would happen without his testimony. We've already had Hannah's testimony as a surrogate.

Cline As recently as this weekend, the govt was willing to have the first two paragraphs admitted. I'd like to be able to read at least those two.

Walton I don't think I can hold the govt to something they decided to when they thought Libby was going to testify. It's just not fair. I won't permit it.

Walton Regarding briefers: What is intended to be argued in reference to the briefers? What does the defense intend to ask jury

Cline On statement, we'll proffer it for the record. I want to make sure on terms of constitution. Impermissible burden on 5th Amendment. We believe it violates 5 and 6th rights, in middle of trial to wihdraw it.

Walton I believed all along throughout these statements that iw as understaood that Libby was going to be testifying. All of these processes would only come in as substitute for his ability not to be able to testify. That was always understood. Now, to suggest that an agreement entered into in that environment. If that's what SCOTUS is going to require, we're going to say govt isn't entitled to fair trial,but defense is. If I get reversed on that one, maybe I need to hang up my spurs. I think you should have been clear that Libby wanted this even if he didn't testify.

12:58

BTW, Walton's cold seems much better than yesterday. Perhaps that's why he's getting riled up.

Walton: Libby doesn't get to introduce state of mind. It's one thing to try to get state of mind through briefers. It's another thing to say what was occpying at time of being briefed.

Cline Let me draw one line, June 14, a particular briefing that Schmall testified about.

Walton When Plame's name was revealed. On that day it'd be totally appropriate to suggest that the info being provided would take precedence.

Cline Let's put that aside then. What we want to show is that on those days, at that point o fthe day, these were matters that were on his mind. This was part of the flow of information he was getting. All of this falls within topics that Hannah testified about. Hannah testified about them generally. Each of the items fall within one of those nine areas that Hannah testified about. There's plenty of evidence in record that jury can infer that those were key pieces of information.

Walton You're not asking jury to infer he would have given more attention to these items

Cline I'm going going to be doing the closing arguments.

Wells gets up, standing away from the mike. This is the stuff that was coming in. I intend to make the full plate argument.

Walton Why isnt' that fair?

Fitz THis is going to be semantics. I have zero hope that we're going to be able to police how it's said to the jury. 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. Whether they say he had a full plate, or bad memory, the rules of evidence, CIPA, goes to letting in. If the specifics can go in, CIPA was based on him talking about what was on his mind. We pointed out that is has prejudicial value. How it hits a juror is different than how it hits Libby. To say that this specific thought was on his mind.

Walton He can't be put in significantly different posture because we're talking about classified info. It was non-classified info, he would be able to throw it at the jury. Just because it's classified it's going to have this impact, and as a result of it.

Fitz Its a 403 article. If he were an accountant, you would draw a line on the complex accountant stuff in. The foundation for what made the probative value, you struck the balance assuming there would be testimony tying these to his thought processes. The defense wants to set the bar, and we'll leave it in anyway. The remedy is not to say let it in to the same extent. And make your argument indirectly. The remedy for evidence is we keep it out if it doesn't have significant probative value. The only probative value is to talk about what was on Libby's mind. Why should they get the benefit of what as on tehir mind.

Walton I'm going to go to lunch and

Cline we let in newspaper articles, but your honor acccepted that it may have had bearing.

Walton That was motive evidence, whether he had motive to lie, because he thought he may have committed a crime.

Cline some articles from July, Fitz' article was if he read them, he was focused on Amb Wilson. We want to put evidence that requires a lot fewer pieces of evidence.

Fitz Those were notes he wrote that he references, the difference is we showed that Libby did something with it. We laid the logical predicate and they did not.

Walton Come back at 2:15 and I'll make the decision.

http://www.firedoglake.com/2007/02/14/libby-live-tedious-legal-arguments-2/

Edited to correct sentence structure.

[La_Fourmi_Rouge]

21. Going to sources requires a certain dedication

to the truth. In this age of instant and open information availability, the only obstacle for the average citizen to learn the truth is Internet Access and their own initiative.

I am often incensed by commenters on this board and others who obviously are relying on MSM misinformation, outright lies (c.f. victoria toensing in the WP), distortion, and sleight of hand.

Folks - this is what the Plame Threads have been revealing for 4 years! The source material is readily available - there is no excuse for reliance on the half-truths fed to a gullible public by those with self-serving interests.

Contributors like Peace Patriot, Robert Paulsen, H2Oman, Me, the entire crew at FDL, and others do an enormous service to the rest of us by their tireless research and elegant prose. I encourage the casual reader of this post or any of the other incredibly well-documented posts regarding the various aspects of the Plame case to follow the sources upstream. Read the originals. It's gripping!

[DemReadingDU]

22. evening kick

[myrna minx]

23. Thank you, H20 man.

You clarified for me something that I has misunderstood. :hi:

[Me.]

24. Monday, Monday

Today's the day?