Libby Trial: Oncoming Train

[swag]

http://www.firedoglake.com/2007/01/25/libby-trial-oncoming-train/#more-6800

Excerpt from a long post by Christy Hardin Smith, former attorney, who has been live-blogging the Libby trial at FireDogLake:

. . .

To pull this sort of stunt during trial is a slap at the authority of the court and its very detailed, very specific orders — and the judge's very careful and thorough consideration of the defendant's rights to this very closely guarded, very difficult to obtain information regarding some highly classified national security matters. Judge Walton was clearly not happy, but was still leaning toward a ruling that left the information somewhat on the table for Team Libby until Wells could not stop himself from "giliding the lily" — Wells started arguing that CIA witnesses "should not be believed" because of their biases toward the Vice President's office, and that he should be able to argue that to the jury based on Schmall's briefing notes. Judge Walton informed Libby's legal team that he would not permit an argument on a memory defense at closing absent testimony from Libby, because otherwise the memory defense was not relevant to the proceedings…and that ended the argument, and the judge agreed to issue a terse cautionary instruction on the CIPA information and questions that Mr. Cline had asked, and we went on to the next legal argument.

Which was a mistake for Libby's legal team.

Ted Wells, lead trial counsel for Libby, completely overstepped in making an argument regarding some handwritten notes of the government's witness, Cathie Martin. Libby's trial team had been given copies of these notes a year or more ago, but just got around to asking to see the originals of the notes this past Saturday. Wells was arguing that the copies given by the government were illegible (Fitzgerald countered that they were not and that, were there problems reading any pages, Wells' team had had a year to notify the government and request a better copy, and had failed to do so until last Saturday). Wells then argued that they had not had enough time to read the notes, due to the numer of documents which needed review — Wells made a big deal about the sheer volume of documents.

Huge error.

As it turned out, the sum total of all of Cathie Martin's handwritten notes in their original form totalled less than an inch of paper, most of which were not relevant to the proceedings at all. Those documents which corresponded with the government's intended exhibit proffer were a grand total of six pages. In making an argument which was built on a foundation of very hot air, Wells lost credibility with the judge, with the government, and worse for his client, with those in the media and public gallery.

In a town where reputation and power is everything, Libby's entire legal team was diminished in a matter of minutes with this one, petty, groundless and unnecessary stunt.

. . . more

[ms liberty]

1. Wow. Can lawyers that expensive really be this incompetent? K&R n/t

[Kagemusha]

5. On purpose, of course they can.

A high priced lawyer who feels bulletproof can make an "oopsie" that throws the trial in his client's favor while being very polite and contrite about it to the naked eye, while inwardly laughing at the fools who buy it.

Just saying this as a general principle. I really hesitate to use the word "incompetent" - purposefully doing something wrong and making it look like an accident is what some people consider part of the art of defense lawyering.

[Ellipsis]

2. K&R

[speedoo]

3. another excerpt....

This is really good stuff. Thanks swag.

..... (emphasis mine)

All of these arguments were done outside the view and hearing of the jury, which was sequestered in the jury room at the time the motions took place. So there is no question that this misstep has prejudiced the jury in any way, since they will not hear of it from any of the members of the court. But, in all honesty, irritating a Federal judge this early in a high profile trial by stating something completely unfounded and conflating a tiny misstep (that likely was a result of some lack of preparation issue on the part of some segment of Libby's trial team) is a huge error.

And the entire episode led to Judge Walton saying this on the record in open court about Patrick Fitzgerald: you are "one of the most scrupulous prosecutors I have ever had appear before me," in response to the judge having to deal with the, by comparison, unnecessary conduct that Wells pulled over Cathie Martin's notes.

Watching this occur from the gallery was painful, even for someone like myself who is hoping for a government win in this trial — because you could see the train coming for miles as this got going, and Wells built his trial persona up and up into a conflated opinion argument before the judge, only to have reality crash in on top. I sat watching, feeling this need to scream out, "Stop, you are going too far." but you just do not do so from the gallery of a federal courtroom while the judge is in session. And so all any of us in the audience could do was watch.

This sort of hubris, after sitting through the opening hour and a half of testimony from Cathie Martin, Vice President Cheney's former public relations assistant, is exactly what started this entire mess in the first place. And so much of the facts on this will continue to spill out in the days ahead. Before I left the courthouse today to catch my flight home, I heard that Ari Fleischer was also in the building. With Cathie Martin still on the stand, and Ari Fleischer standing in the wings, this trial promises to keep heating up in the days and weeks ahead.

[cassiepriam]

6. Exactly what I thought, the same hubris that started the whole mess.

Do they never learn?

[Demit]

4. FDL's liveblogging & analysis has been excellent—and addictive.

Christy & Marcy Wheeler know this story inside and out and they answer questions any poster may have. Excellent blog.

[xiamiam]

7. could hardly do anything else today...its very good...i agree, addicting..but worth it...my favorite

remarks from today...
from cathie martin: we "use" meet the press(when they need to get info out)...duh..no kidding

and from judge walton to fitz: you are the most scrupulous prosecutor i've met/known..something to that effect when libbys attorney was whining over 6 pages of emails that he said were unclear...

[Straight Shooter]

8. I hope Wells didn't assert in front of the jury the CIA's bias against Cheney.

Because if he did, he just opened the door for CIA witnesses to explain why they have a bias against Cheney, which of course will include arm-twisting and who knows what else as Cheney looked for the intelligence he wanted, not the intelligence they had.

(Well, actually, I hope he did just that, but it's hard to believe he'd be that incompetent. Oh. Wait. Nevermind.)

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

My schedule doesn't allow me to follow this trial as closely as I would like, so I appreciate all DU'ers who offer excerpts and their own thoughts and opinions as to the course of events.

:thumbsup: