Seven pages of jury instructions, taken from Jeralyn Merritt's February 28 article, Libby: Factors to Consider While We Wait. They show that the 127 pages of instructions contain very little text on each page, being in rather large print. As an aside, the page numbers are handwritten, not typed.
The last three pages are a fraction of the instructions relating to Count One, Obstruction of Justice, and show the defense-preferred definition of "intent," including the use of "corruptly" and "[to act] with an evil motive" as necessary findings to support the rendering of a guilty verdict. The prosecution argued against using words like "evil motive."
I've also learned that the jury instructions include a "Good Faith Defense" section, as requested by the defense.
On the other hand, unless Ms. Merritt truncated the Memory Instruction actually delivered to the jury, it appears the defense did not get the language it sought under the memory instruction ...
(8.) A person's confidence in the accuracy of his recollection of an event has little, if any, relation to the accuracy of the person's recollection. In other words, a person may be very confident that his memory of an event is accurate when in fact it is inaccurate.
(9.) If a person remembers an event incorrectly the first time he tries to recall it, his later recollections of the event are likely to repeat that error.
Without waiving our initial proposal, we requested that two points be added to the Court's proposed memory instruction: (1) that a person's confidence in the accuracy of his recollection of an event has little, if any, relation to the accuracy of the person's recollection--in other words, a person may be very confident that his memory of an event is accurate when in fact it is inaccurate; and (2) that if a person remembers an event incorrectly the first time he tries to recall it, his later recollections of the event are likely to repeat that error.
See also Jan 17 Libby Memorandum regarding Jury Instructions pp. 6-8.
Memory Instruction As you have heard, the defense contends that Mr. Libby confused, forgot, or misremembered all or parts of some of the conversations that you have heard about during the trial that form the basis for the charges that have been filed against Mr. Libby. You are also being asked to evaluate the accuracy of the memory of other witnesses who testified in this trial. In considering Mr. Libby's position and the testimony of any other witness 35 whose memory is at issue, it is appropriate for you to take into account the following: (1.) Your assessment, based on your life experiences, of the capacity of human beings to remember things they said and were told when asked to recall those matters at a later point in time; (2.) The amount of time between when a person said or heard something and the impact the passage of time had on the person's memory to accurately recall those 36 events; (3.) The circumstances that existed when the person was exposed to the events he or she is asked to recall; (4.) The nature of the information or the event the person is called upon to remember; (5.) The circumstances that existed when the person was asked to recall the earlier event; (6.) The circumstances that existed 37 during the time between when the person was exposed to an event he or she is asked to recall and when that person was asked to recall the earlier event; (7.) Your assessment of the memory capacity of the person whose memory is in question; and (8.) Any evidence that was presented during this trial that shed light on any issues related to memory of the individuals you have to assess in this trial. 38 ------------------- corruptly endeavored to influence, obstruct, or impede the due administration of justice. According to count one of the indictment, Mr. Libby carried out this corrupt endeavor by making the following three allegedly false statements to the grand jury: (1.) That when Mr. Libby spoke with Tim Russert of NBC News, on or about July 10, 2003, Mr. Russert asked Mr. Libby if Mr. 62 Libby knew that Joseph Wilson's wife worked for the CIA and that Mr. Russert told Mr. Libby that all the reporters knew it; (2.) That when Mr. Libby spoke with Tim Russert of NBC News, on or about July 10, 2003, Mr. Libby was surprised to hear that Mr. Wilson's wife worked for the CIA; and (3.) That Mr. Libby advised Matthew Cooper of Time magazine on or about July 12, 2003, that he had heard that other 63 reporters were saying that Mr. Wilson's wife worked for the CIA, and further advised him that Mr. Libby did not know whether this assertion was true. To act "corruptly," as this word is used in these instructions, means to act voluntarily and deliberately and with an evil motive or improper purpose or intent to influence, or obstruct, or interfere with the administration of justice. The term "endeavors," as used in these 64
Another OCR job, this one is pretty easy though.
The docket sheet contains some entries that are much more mentally stimulating than the introduction of a DVD into evidence - this filing is just a formality to accompany the delivery of tangible media for evidence already described in a pleading. To wit, Libby's February 14 Memo in Support of Introducing Additional Evidence to Impeach Government Witness Tim Russert [Doc 282].
The more interesting information, to me, are Docket entries dated February 23 and February 26 that refer to an action denominated "Set/Reset Deadlines/Hearings" followed by "Jury Deliberation continued for [next business day following]."
Here are the entries in context. Speculate away ;-)
Date Filed # Docket Text 02/23/2007 Terminate Deadlines and Hearings as to I. LEWIS LIBBY: (erd) (Entered: 02/27/2007) 02/23/2007 Set/Reset Deadlines/Hearings as to I. LEWIS LIBBY: Jury Deliberation continued for 2/26/2007 09:30 AM in Courtroom 16 before Judge Reggie B. Walton. (erd) (Entered: 02/27/2007) 02/23/2007 Minute Entry for proceedings held before Judge Reggie B. Walton :Jury Deliberation resumed as to I. LEWIS LIBBY held on 2/23/2007 I. LEWIS LIBBY (1) Count 1,2-3,4-5. Jury Deliberation continued for 2/26/2007 09:30 AM in Courtroom 16 before Judge Reggie B. Walton. Bond Status of Defendant: Defefendants continued on PR bond. Court Reporter: Phyllis Merana Defense Attorney: William Jeffress; US Attorney: Patrick Fitzgerald. (erd) (Entered: 02/27/2007) 02/26/2007 303 NOTICE of filing Exhibit B, DVD (DX1813), introducing additional evidence to impeach government witness Tim Russert by I. LEWIS LIBBY re 282 Memorandum of Law. (Attachment: DVD) (mlp) (Entered: 02/27/2007) 02/26/2007 Set/Reset Deadlines/Hearings as to I. LEWIS LIBBY: Jury Deliberation continued for 2/27/2007 09:00 AM in Courtroom 16 before Judge Reggie B. Walton. (erd) (Entered: 02/27/2007)
Case 1:05-cr-00394-RBW Document 303 Filed 02/26/2007 Page 1 of 1
Case 1:05-cr-00394-RBW Document 303 Filed 02/26/2007 Page 1 of 1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NOTICE OF FILING
The attached DVD contains the video clips that comprise Exhibit B to Mr. Libby's Memorandum of Law in Support of Introducing Additional Evidence to Impeach Government Witness Tim Russert (Dkt. 282).
Dated: February 26, 2007
On February 17, Mark Kleiman composed a post entitled "Was Valerie Plame Wilson's employment classified information? - A challenge to Red Blogistan."
His post threw down the gauntlet on the subject of the "covert" and/or "classified" status of Wilson's wife, Valerie Plame, and solicited rebuttals from "Glenn Reynolds, Tom Maguire, Victoria Toensing, Clarice Feldman, Byron York, and all their friends." Mr. Kleiman concluding that Mrs. Wilson had classified status, vs. the others claiming an absence of any protected status.
The question of Mrs. Wilson's "status," and the interplay of "that status" with the ensuing investigation and indictment, is something I pondered a year ago. Given my strongly held belief that Mrs. Wilson had zero, none, nada protected status within the CIA, and that her "outing" was a political event with little or no security ramification, I tried to hypothesize a fact pattern that would account for the public players acting in more or less professional fashion.
I disagree that the presence of the Libby indictment and prosecution is an unequivocal signal that Plame had some protected status. But I also disagree, rather strongly, with the position of the "Toensing, York, Feldman & Maguire camp" (for want of a better label), that Fitzgerald's conduct is unethical or an abuse of prosecutorial discretion, because Fitzgerald knew that Plame had no protected status. My exchange with Mr. Kleiman is an attempt to explain my rationale for holding what may appear to be conflicting positions.
-- Why not argue 'No leak of classified information' in open court? --
There is a simple (in some ways) explanation for why Libby didn't use "she's not covert/classified" as a defense. That explanation is that Plame's status isn't relevant to the question of whether or not Libby lied to investigators. Well, not directly relevant -- relevant perhaps to motive to lie - for those who can find motive ONLY if the liar believes there is risk of criminal prosecution for telling the truth.
The question of her status is often couched in the term "materiality." The logic goes that if there is no underlying crime (breaking an anti-leak statute), then false statements can't "mislead" the investigation. The investigation is forgone to conclude there was no classified leak. Hence a free pass for lying. Fitzgerald and Walton have (correctly) cut off this pseudo-defense. Toensing, Feldman and others persistently (and wrongly) assert it. It would be a wonderful defense if this was a criminal leak trial, but this isn't a criminal leak trial.
Not that Libby wasn't persistent in trying to raise the defense. But as a matter of legal process, the status of Plame is IRRELEVANT to the question of whether or not Libby made deliberate and material misrepresentations to investigators.
I doubt Plame had any kind of protected status within the CIA, wherein telling of her employment could possibly result in criminal liability. I think Fitzgerald "took the CIA report on its face" and didn't question the secrecy element - he didn't need to unless he was prosecuting a leak indictment. Look at this question in an "order of the investigation" analysis. Those who defend Libby say that the order of investigation should have been:
Some of those who assert Plame was covert ALSO take the same order of investigation, but jump to the conclusion that the qualification in step "1" was made, simply based on the fact that the investigator looked for a leaker.
My surmise is that the investigator skipped step "1." It was "assumed" by the investigator, to be visited later IF and ONLY IF leakers could be identified. The CIA kept (and is keeping) the status of Plame as an unknown.
My surmise is that the FBI jumped right to "who's the leaker?" without challenging the CIA to prove or provide status of Plame - beyond the conclusory "there may have been a leak of classified information" report. Plame may have had some protected status, or maybe not - but that question is not illuminated by the Libby investigation and trial.
There are many hints in the pleadings and filings that Fitzgerald was focused on false statements from his start, while entertaining the outside possibility that there may have been an IIPA or other classified leak violation.
Another way to analyze the situation is using simplified "elements of a criminal leak."
From: Mark Kleiman
Date: Mon, 19 Feb 2007
Subject: Re: Was Valerie Plame Wilson's employment classified information
I think we're in agreement.
It now seems uncontroversial that VPW's employment status was classified information. (At least, Tom Maguire concedes it.) That being true, Fitzgerald had a potential crime to investigate under the Espionage Act, whether or not she was "covert" for purposes of IIPA. It was in the course of that investigation that Libby told the fibs he's charged with. Therefore Toensing, York, and Feldman are wrong when they criticize Fitzgerald for running a major investigation where no underlying crime had been committed; even if that were true, or if a crime had been committed but he couldn't prove it, he couldn't make those determinations without investigating. Therefore their sympathy for Libby, caught in a manufactured crime by an overzealous prosecutor, is unjustified.
Date: Mon, 19 Feb 2007
To: Mark Kleiman
Subject: Re: Was Valerie Plame Wilson's employment classified information
-- I think we're in agreement. --
-- It now seems uncontroversial that VPW's employment status was classified information. (At least, Tom Maguire concedes it.) That being true, Fitzgerald had a potential crime to investigate under the Espionage Act --
Her "employment status was classified," whatever that means. At any rate, Fitzgerald acted as though there was sufficient basis to charge a leaking crime, if a leaker with appropriate mens rea could be identified, etc. My position is that Fitzgerald never TESTED this position (that Plame's position in fact had sufficient basis to charge a leaking crime), he took it as an article of faith, to be tested if and only if he identified a leaker with appropriate mens rea, etc.
-- It was in the course of that investigation that Libby told the fibs he's charged with. --
Libby started lying to the FBI. By the time Fitz came up to speed (months later), he likely thought Libby had provided false statements. Fitzgerald decided to probe that false statements crime, which simultaneously probes the personal knowledge and mens rea elements necessary to prosecute a leak crime, assuming the secrecy and other elements would be filled in later.
-- Therefore Toensing, York, and Feldman are wrong when they criticize Fitzgerald for running a major investigation where no underlying crime had been committed --
I disagree with their criticism, but my disagreement is predicated on a foundation that false statements is, on its own right, adequate grounds for the prosecutor to exercise his discretion.
My support for Fitz's judgment is based on a willingness to prosecute false statements even if some other element of a crime is destined to come up unfounded. There is too much license to lie if the investigatory rule does not punish lying unless an underlying crime can in fact be made out.
I disagree with your conclusion that Fitz had IN FACT established, to his own satisfaction, adequate "secrecy" grounds to charge a leaking crime.
-- Therefore their sympathy for Libby, caught in a manufactured crime by an overzealous prosecutor, is unjustified. --
I think their sympathy is unjustified, but I arrive at that opinion via a slightly different route from the one you take.
The crime of false statements wasn't manufactured by Fitz. The question of whether or not the investigation was warranted was made above his pay grade. An investigation there was (before he got there), and upon review of the witness statements, he saw what he thought were a few egregious liars.
Feldman and Toensing would overlook false statements in THIS CASE, and their justification is that there was no [criminal] leak.
Their logic bottoms out at "If there can be no [criminal] leaker, there can be no liar," or in a more nuanced phrasing, it's an abuse of prosecutorial discretion to pursue this liar.
This page is a collection of renditions to text, of handwritten notes. Of course, the handwriting itself, and most of the foibles associated with handwriting, don't reproduce in typed text.
The handwriting is neat and legible, it is the same on Docs 301, 302, 304, 305, 306, 308, 314, and 316. My sense is the handwriting is the handwriting of a female. [After the verdict, varions news reports indicate that the foreperson was indeed female]
Doc 301 =
Doc 302 = http://talkleft.com/LibbyTrial/222jurynote.pdf
Doc 304 = http://talkleft.com/LibbyTrial/jurynotefeb27.pdf
Doc 305 = http://talkleft.com/LibbyTrial/jurynotefeb28.pdf
Doc 308 = http://talkleft.com/LibbyTrial/jurynotemar1.pdf
Doc 311 = http://talkleft.com/LibbyTrial/jurynote32.pdf
Case 1:05-cr-00394-RBW Document 301 Filed 02/21/2007
We would like the following Supplies: Large flip chart Masking tape Post-it-Notes
Case 1:05-cr-00394-RBW Document 302 Filed 02/22/2007
May we please get any one of the documents Where
therepictures of the witnesses. There are
Case 1:05-cr-00394-RBW Document 304 Filed 02/27/2007
We would like clarification on the charge as stated under Count 3, specifically: Page 74 of the jury instructions, "Count three of the indictment alleges that Mr. Libby falsely told the FBI on October 14 or November 26, 2003, that during a conversation with M. Cooper of Time Magazine on July 12, 2003, Mr. Libby told Mr. Cooper that reporters were telling the administration that Mr. Wilson's wife worked for the CIA but that Mr. Libby did not know of this was about true." (i.e., that the statement was made or the content of | is the charge the statement itself) 2/27/07 I am not exactly certain what you are 4:30 pm asking me. Can you please clarify your question? Judge Walton
Case 1:05-cr-00394-RBW Document 305 Filed 02/28/2007
After further discussion, we are clear on what we need to do. No further clarification needed. Thank you. We apologize. 2/28/07 10:45 am
Case 1:05-cr-00394-RBW Document 306 Filed 02/28/2007
We would like another big Post-it pad. The large one for the easel. 2/28/07 3:45
Case 1:05-cr-00394-RBW Document 308 Filed 03/01/2007
We the jury respectfully request to be excused at 2pm on Friday, March 2 to attend to personal, professional and medical obligations that can't be addressed during our weekends Thank you. You may be excused at 2:00 pm tomorrow Judge Walton 3/1/07 2:40 pm
Case 1:05-cr-00394-RBW Document 311 Filed 03/02/2007 Page 1 of 2
As Count 1 statement 3 (pages 63 & 64) do not contain quotes, are we supposed to evaluate the entire Libby transcrpts (testimony) or would the court direct us to specific pages/lines Thank You 3/2/07 2pm
Case 1:05-cr-00394-RBW Document 311 Filed 03/02/2007 Page 2 of 2
Specifically We would like clarification of the term "reasonable doubt".
For example, is it necessary for the government to present evidence that it is not humanly possible for someone to * recall an event in order to find guilt beyound a reasonable doubt. * not 3/2/07 10:30 am2pm
Viewed as a collection, it appears that Count 3 was the primary source of confusion. The jury rendered a "not-guilty" verdict on Count 3, with their understanding of the count being Cooper's word vs. Libby's (no reference to Libby's words directing away from having non-reporter sources) and their conclusion being that Cooper did not take Libby's comments as confirmation - Cooper's notes did not reflect the notion "confirmed by Libby" nor did Cooper pursue the story, now having two confirmed sources.
Case 1:05-cr-00394-RBW Document 314 Filed 03/05/2007 Page 1 of 1
All three questions below relate to count 3 (pages 74 & 75) #1 - Is the prosecution alleging that Mr. Libby did not make the statement to Cooper as presented to us in the Indictment OR is the allegation that Libby did know Mrs. Wilson worked for the CIA when he spoke to the FBI on 10/14/03 or 11/26/03? #2 - Is the prosecution's allegation in Count 3 that Mr. Libby DID know that Mr. Wilson's wife worked for the CIA when he made statements to the FBI on 10/14/03 OR 11/26/03? (Pages 74/75 .... "that Mr. Libby did not know if this was true." #3 - In determining Count 3, are we allowed to consider Mr. Libby's grand jury testimony? 3/05/07
Case 1:05-cr-00394-RBW Document 316 Filed 03/06/2007 Page 1 of 1
The jury has reached a verdict in each of The five counts. Thank you. 03/06/07 11:15am
Closing arguments have a way of crystallizing the difference between opposing sides. Ted Wells laid it all out in several sentences, paraphrased here by Marcy Wheeler ...
I also told you this was a case about he said she said. Case about different recollections between Libby and some reporters.
There is no charge in this indictment about Libby's conversation with Grossman, Fleischer, Martin -- that's all background evidence. In terms of what you have to decide as jurors, it relates to Libby's conversations with reporters, Set forth in detail in the jury instructions. Those are the charges.
As I've pointed out ad nauseum, it's to the defense advantage to make this case about conversations with reporters, and ONLY about conversations with reporters.
But as the indictment goes, the prosecution aims to charge Libby with lying to investigators about the extent of, or presence of (or absence of, as Libby asserts) knowledge that Mrs. Wilson worked at the CIA, where that knowledge came from an official source. Libby said he had no recollection of having ANY official source for such knowledge, he forgot his talk with Cheney, for example. The only source he remembered, insists he, was reporters (my off the cuff paraphrase).
And so, it is a powerful defense to continue to make this entirely about the reporters, he-said/he-said between reporters and Libby, and to convince the jury that nothing further, nothing outside of the conversations with reporters need be reviewed. The conversations with others? Mere background.
But Ted Wells is wrong. The charges in the indictment are very much, in fact MOSTLY, about conversations with Grossman, Fleischer, Martin, et al. Wells is skillfully manipulating perception. Reporters can be made to appear to be singularly central to the guilty-innocent decision, because Libby's alleged lies came out in the form of his descriptions of his conversations with reporters. The structure of the charges in the indictment (having information ONLY from reporters) reflects Libby's testimony - not the alleged "true facts" as set out by the prosecution.
Wells is impeaching Russert, and will easily plant the thought that Russert could have told Libby. See, again, making the narrative all about the conversation with reporters, and not about whether or not Libby attempted to deliberately mislead investigators to the conclusion that Libby had no recollection of an official basis for knowing Wilson's wife worked at the CIA. Wells is setting up a strawman, one that is easy to craft reasonable doubt around.
I'm going to talk you through this, most important testimony in the whole case. The govt's timeline is wrong. Came out on AP wire, by 2:00 on July 11, if you lived in the world of media, you could get access to it, people could call you, talk about it.
The strawman being, that if Russert knew (that Wilson's wife worked at the CIA, by reading the Novak piece on the wire on July 11, or by hearing from Mitchell) at the time of the Libby conversations, then Libby's version of the conversation may be correct. Fine, as far as it goes.
But even if Libby's version of the Russert conversation is correct, Libby's denial of recall of all his knowledge via non-reporter channels (unless he honestly forgot all of that) would still amount to an attempt at obstruction.
The opposing sides are arguing two different cases, just as the amateur observers have been since the indictment was handed down. And the grounds of argument at closing, at the end of February 2007? They are exactly the same grounds taken by opposing sides at the end of October, 2005. The defense holds firm that the case is nothing more than he-said she-said between Libby and reporters. The indictment and the prosecution say otherwise.
Parts of Jeffress's closing argument are much much more persuasive than Wells's. He challenges motive, memory, and (not that I agree with the argument as an excuse for lying, but quite a few people do) there's no evidence that Plame was covert. Just the same, he is more focused on what reporters knew (from the rumor mill) than on debunking the evidence adduced from government witnesses. His delivery also has a tendency to cause the listener to think in terms of "Did Libby leak?" rather than "Did Libby lie?" He spends considerable time on memories of Cooper and Miller, again tending to make the case into a he-said she-said between Libby and reporters.
The disconnect between defense and prosecution is real, and it is stark. A trial observer reports an exchange at the courthouse ...
We were released for lunch after Wells's first presentation. In the elevator, a man from the peanut gallery asked my friend and me what we thought of Wells's closing. My friend and I remarked that we thought he did a fantastic job. The guy was utterly perplexed: "But he didn't address all those 8 or 9 people that the Prosecution had listed in his closing!"
The defense did address those 8 or 9 people, but in a tangential way rather than directly. The defense used their imperfect memories to impeach their testimony, and as "memory parallels" to lead the jury to have a reasonable doubt that Libby remembered that Mrs. Wilson worked at the CIA. Neither connection is logically valid.
However, the testimony of one CIA briefer rested entirely on his notes, making his memory irrelevant to the evidence he brought to the trial. And Cathie Martin clearly recalled learning, clearly remembered "Wilson's wife worked at the CIA," and clearly recalled telling Libby this fact. Her memory, while imperfect in other regards, honed in on and retained the "Wilson's wife at the CIA" fact - and that she shared that fact with Libby.
The case soon goes to the jury. Whatever their ultimate conclusion, I bet that the group will break down on exactly the lines described above, where some jurors will be inclined to think in narrow terms of accuracy of accounting for the contents of Libby-reporter conversations. Others will get to the question posed by the indictment - was Libby telling the truth when he insisted that the only memorable contact he had, was his contact with reporters?
OCR Job -- needs to get out timely, as closing arguments start shortly. Please pardon any and all bubus.
Case 1:05-cr-00394-RBW Document 299 Filed 02/20/2007 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF OF I. LEWIS LIBBY ON
THE PROPER SCOPE OF THE GOVERNMENT'S REBUTTAL
The Court has allotted each party three hours for its closing argument. The government intends to use one-third to one-half of its time for rebuttal. Although we do not suggest that the government will engage in deliberate impropriety, the length of its proposed rebuttal raises concern that it may reserve crucial contentions until that argument, when the defense will have no chance to respond. In light of this concern, we submit this brief to alert the Court and the government to the relevant principles that govern rebuttal argument. To the extent the government's rebuttal violates these principles, we will object, seek appropriate instructions, and if necessary request surrebuttal.
Fed. R. Crim. P. 29.1 addresses the order of closing arguments. The Advisory Committee Note states: "The rule is drafted in the view that the fair and effective administration of justice is best served if the defendant knows the arguments actually made by the prosecution in behalf of conviction before the defendant is faced with the decision whether to reply and what to reply." Courts have interpreted Rule 29.1 and the common law principles on which it rests to
Case 1:05-cr-00394-RBW Document 299 Filed 02/20/2007 Page 2 of 4
mean that "[a]s a general rule, Government counsel should not be allowed to develop new arguments on rebuttal, but should be restricted to answering the arguments put forth by defense counsel." Moore v. United States, 344 F.2d 558, 560 (D.C. Cir. 1965); see, e.g., United States v. Steele, 685 F.2d 793, 802 (3d Cir. 1982). "[T]he primary purpose of the rule announced in Moore is to protect defense counsel from surprise." Hall v. United States, 540 A.2d 442, 448 (D.C. 1988); see, e.g., United States v. Gray, 292 F. Supp. 2d 71, 91 (D.D.C. 2003) (same).
Courts have found government rebuttal arguments improper when they have presented new theories or interpretations of the evidence. 1 In United States v. Russo, 74 F.3d 1383 (2nd Cir. 1996), for example, the court found improper introduction of a new chart column, which reorganized information already in the record, because "[t]he prosecutor took a step beyond the existing evidence to create a new line of argument." Id. at 1396. In United States v. Gleason, 616 F.2d 2 (2nd Cir. 1979), calculations introduced for the first time in rebuttal effectively confronted the defendant with "a new theory (albeit based on record evidence) at almost literally the last minute of a long trial," and thus "[f]airness would dictate that a copy be furnished to [defendant] well enough in advance of its use to permit a reply." Id. at 26. And in Steele, the government's rebuttal introduced a new factual interpretation, supported by a chart, and thus "denied the defendants the opportunity to respond and rebut [its] contentions." 685 F.2d at 802i see also, e.g., Bailey v. State, 440 A.2d 997, 1000-04 (Del. 1982) (reversing conviction where prosecution "sandbagged" defense by reserving bulk of argument until rebuttal); Presi v. State, 534 A.2d 370 (Md. Ct. Spec. App. 1987) (reversing conviction where prosecutor referred to
1 Other forms of improper argument, although not peculiar to rebuttal, are particularly likely to cause prejudice and lead to reversal at that stage, because defense counsel have no opportunity to respond. See, e.g., United States v. Holmes, 413 F.3d 770, 776 (8th Cir. 2005); United States v. Carter, 236 F.3d 777, 793 (6th Cir. 2001).
Case 1:05-cr-00394-RBW Document 299 Filed 02/20/2007 Page 3 of 4
financial records in rebuttal that had not been addressed in initial prosecution closing or in defense closing).
A recent case from the United States District Court for the Southern District of Texas demonstrates the limits on rebuttal argument. In United States v. Nguyen, 2006 U.S. Dist. LEXIS 36401 (S.D. Tex. June 5, 2006), the court granted a new trial because of the government's improper surprise rebuttal. The rebuttal argument turned on the flight itinerary of one of the defendants, which had been mentioned only in passing during the trial. Although the rebuttal argument responded to a defense argument that the defendant was at the scene of the drug transaction as a bystander rather than as a participant, the court found that "the government had ample opportunity to engage this argument during its initial closing." Id. at *3. Because the government waited until rebuttal to make an argument it could readily have made in its initial argument, and thus denied the defense an opportunity to respond, the court concluded that even surrebuttal (which it had permitted) did not cure the prejudice. See id. at *5; see also United States v. Nguyen, 2006 U.S. Dist. LEXIS 37142 (S.D. Tex. June l, 2006).
To ensure that Mr. Libby's right to a fair trial is protected, we will monitor the government's lengthy rebuttal argument closely in light of the limits set out above, object where appropriate, and if necessary seek curative instructions and surrebuttal.
February 20, 2007 Respectfully submitted, /s/ Theodore V. Wells Jr. /s/ William H. Jeffress Jr. Theodore V. Wells, Jr. William H. Jeffress, Jr. (D.C. Bar No. 468934) (D.C. Bar No. 041152) James L. Brochin Alex J. Bourelly (D.C. Bar No. 455456) (D.C. Bar No. 441422) Paul, Weiss, Rifkind, Wharton Baker Botts LLP & Garrison LLP 1299 Pennsylvania Avenue, NW 1285 Avenue ofthe Americas Washington, DG 20004 New York, NY 10019-6064
Case 1:05-cr-00394-RBW Document 299 Filed 02/20/2007 Page 4 of 4
/s/ John D. Cline John D. Cline (D.C. Bar No. 403824) K.C. Maxwell (pro hac vice) Jones Day 555 California Street, 26th Floor San Francisco, CA 94104
In response to Government's Request for More Closing Argument Time [Doc 297]
Case 1:05-cr-00394-RBW Document 298 Filed 02/19/2007 Page 1 of 4
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
I. LEWIS LIBBY'S RESPONSE TO GOVERNMENT'S REQUEST FOR ADDITIONAL
ARGUMENT TIME AND MEMORANDUM REGARDING THE VERDICT FORM
In light of the Court's decision to remove the special interrogatories from the verdict form the government has now requested an additional fifteen minutes to present its closing argument. The defense does not believe this additional time is necessary, as the jury instructions provided by the Court will clearly describe the statements charged in the indictment and the alternative bases upon which the jury could base its decision. 1 Nonetheless, if the Court does decide to grant the government's request, the defense would be entitled to an additional fifteen minutes as well. This, in turn, will likely prevent the completion of closing arguments during tomorrow's session. In the event that occurs, the defense requests that each side be permitted to present their final hour of argument on Wednesday.
The defense would also like to clarify its position regarding the use of special interrogatories. On January 30, Mr. Libby proposed a revised verdict form that would have required the jury to specify its basis for a guilty verdict on Count One only. It was the defense's view that special treatment of Count One was warranted because that count, as it was initially
1 In fact, the verdict form previously proposed by the Court did not actually describe the charged statements at all; it simply indicated that there multiple statements upon which the jury could base its decision.
- 1 -
Case 1:05-cr-00394-RBW Document 298 Filed 02/19/2007 Page 2 of 4
written, charged three entirely distinct conversations involving three different reporters, Tim Russert, Matt Cooper, and Judith Miller. On February 14, after the Miller conversation was dismissed as a ground for conviction on Count One, Mr. Libby proposed a supplemental verdict form which struck the Miller interrogatory from Count One, and which made Counts Two and Three consistent with how Counts Four and Five appeared in Mr. Libby's original proposed verdict form.
Earlier today, the Court provided a draft verdict form that includes special interrogatories for Count One, and for Counts Two and Five. The Court included these additional interrogatories to avoid juror confusion and because it concluded that disparate treatment of these counts is not justified under the circumstances. Having evaluated the Court's draft verdict form, the defense concluded that the risk of unfair prejudice caused by the use of special interrogatories throughout the form outweighed any benefit use of those interrogatories might provide. Mr. Libby therefore withdrew his request for the use of special interrogatories with respect to Count One, and he will waive on the record any right he might have for use of such interrogatories for any of the counts at the beginning of tomorrow's proceedings. The Court subsequently communicated to the parties its willingness to remove all special interrogatories if Mr. Libby executed such a waiver.
The government, in its memorandum requesting additional time for summation, continues to insist that the defense's objection to the use of special interrogatories is "baseless." This is not the case at all. Because the Court's concern regarding jury confusion is eliminated under the defense's revised proposal and because the use of special interrogatories poses a serious risk of prejudice to Mr. Libby, the defense's insistence on the exclusion of special interrogatories is well-founded.
- 2 -
Case 1:05-cr-00394-RBW Document 298 Filed 02/19/2007 Page 3 of 4
The use of special interrogatories is disfavored in criminal cases as it threatens, in numerous ways, to cause unfair prejudice the defendant. See, e.g., United States v. North, 910 F.2d 843, 910-11 (D.C. Cir. 1990); Objection to Proposed Verdict Form at 1-4. (citing cases); United States v. Spock, 416 F.2d 165, 182 (last Cir. 1969) (noting the "subtle, and perhaps open, direct effect that answering special questions may have upon the jury's ultimate conclusion."); United States v. Wilson, 629 F.2d 439, 444 (commenting that special verdicts and interrogatories "may in fact be more productive of confusion than of clarity"); Heald v. Mullaney, 505 F.2d 1241, 1245 (1st Cir. 1974) (surmising that the use of special questions and verdicts in criminal proceedings may be suspect on due process grounds); Anderson v. United States, 273 F. 677, 679 (9th Cir. 1921) (explaining that "[i]t is not the practice of the federal courts in criminal cases to call for special verdicts."). In Mr. Libby's case, the use of special interrogatories would be particularly unfair because, among other things, it would appear to transform what the grand jury charged as five counts into eleven separate counts.
Because of the risk of prejudice special interrogatories pose, courts allow for their use only in narrow, select circumstances. For example, a court may employ a special verdict form when a defendant requests or approves of one as a means of more precisely determining an appropriate and fair punishment, see, e.g., United States v. Dennis, 786 F.2d 1029, 1041 (11th Cir. 1986), when a finding of an overt act is constitutionally necessary to conviction, see Kawakita v. United States, 343 U.S. 717 (1952), when a jury requests clarification of a general verdict form, see United States v. O'Looney, 544 F.2d 385 (9th Cir. 1976), or when a case is "exceptionally complex," see United States v. Russo, 166 Fed. Appx. 654, 661 (3rd Cir. 2006) (unpub.) (describing such cases as "rare" and noting that "the mere fact that the Government
- 3 -
Case 1:05-cr-00394-RBW Document 298 Filed 02/19/2007 Page 4 of 4
alleged alternative legal theories with regard to the  count does not necessitate the use of special verdict sheets."). None of those circumstances is present here.
For the reasons stated above, Mr. Libby respectfully submits that the Court should maintain its current plan to provide the jury a simple, general verdict form. He further submits that the use of such of a form does not require the Court to expand the time allotted for closing arguments. If, however, the Court decides to grant additional time and if that prevents the parties from concluding arguments by the end of tomorrow's proceedings, Mr. Libby asks that each side be permitted to present their final hour of closing argument on Wednesday.
Dated: February 19, 2007 Respectfully Submitted, /s/ Theodore V. Wells 7r. /s/ William H. Jeffress 7r. Theodore V. Wells, 7r. William H. Jeffress, 7r. (D.C. Bar No. 468934) (D.C. Bar No. 041152) James L. Brochin Alex J. Bourelly (D.C. Bar No. 455456) (D.C. Bar No. 441422) Paul, Weiss, Rifkind, Wharton Baker Botts LLP & Garrison LLP 1299 Pennsylvania Avenue, NW 1285 Avenue of the Americas Washington, DC 20004 New York, NY 10019-6064 Tel: (202) 639-7551 Tel: (212) 373-3089 /s/ John D. Cline John D. Cline (D.C. Bar No. 403824) Jones Day 555 California Street, 26th Floor San Francisco, GA 94104 Tel: (415) 626-3939
- 4 -
Case 1:05-cr-00394-RBW Document 297 Filed 02/19/2007 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA ) ) CR. NO 05-394 (RBW) v. ) ) I. LEWIS LIBBY, ) also known as "Scooter Libby" ) GOVERNMENT'S REQUEST IN LIGHT OF CHANGE IN VERDICT FORM The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, SPECIAL COUNSEL, respectfully submits the following request in light of the Court's recent decision to forego the use of special verdict forms for Counts 1, 2 and 5. On February 14, 2007, the government filed a proposed special verdict form for use in this case which included special interrogatories for Counts 1, 2 and 5. The government's proposal was based in part on Judge Walton's indication in previous court proceedings that he was of the view that it would be appropriate to use a special verdict in this case. On February 15, 2007, the defendant filed an objection to the government's verdict form and requested that the Court use a verdict form that included special interrogatories for Count 1 only. During the instruction conference on February 15, 2007, the Court asked the government to advise whether it could agree to the use of a general verdict form for Counts 2 and 5 in light of the defense's request for a special verdict form for Count 1 and general verdict forms for Counts 2 and 5, and despite the defense's concurrent request for special unanimity instructions for all three counts. At the instruction conference, the Court also advised the parties that closing arguments would be limited to three hours per side.
Case 1:05-cr-00394-RBW Document 297 Filed 02/19/2007 Page 2 of 5 In response to the Court's inquiry, the government later advised that it would not object to the use of general verdict forms for Counts 2 and 5 if the Court supplemented the current unanimity instructions by explaining to the jury, based on the indictment, the specific statements upon which they could unanimously agree to convict the defendant on each of those counts. On February 16, 2007, the Court provided the parties with its proposed final instructions and verdict form. The Court's verdict form included special interrogatories for Counts 1, 2 and 5. After receiving the Court's proposed verdict form, the defense again objected, but did not specify a basis for its objection. The government advised the Court that its preference would be to use the form proposed by the Court. Concurrently with its objections to the jury verdict forms, the defense made objections to other proposals designed to clearly and accurately present to the jury the specific alleged false statements it would be required to consider in determining the defendant's guilt or innocence on Counts 1, 2 and 5. Initially, the defense objected to the Court's playing or reading the charged false statements as part of the Court's oral presentation of the instructions. The defense also objected to providing the jury with an extra copy of the charged statements referencing citations to the grand jury transcripts. In addition, the defense objected to an instruction regarding the number of false statements at issue with respect to Count 1. On the morning of February 19, 2007, the Court advised the parties that it would provide the jury with a verdict form containing special interrogatories for Counts 1, 2 and 5, over the defendant's objection. After receiving an email message from the defense restating the defense's objection and 2
Case 1:05-cr-00394-RBW Document 297 Filed 02/19/2007 Page 3 of 5 amending its proposal to exclude any special interrogatories, 1 however, the Court revised its ruling and stated that it would provide the jury with no special interrogatories. Based on the instructions and verdict form provided to the parties by the Court on February 16, 2007, the government assessed the amount of time necessary to adequately describe during summation the specific charged statements, and the alternative bases upon which the jury may convict on Counts 1, 2 and 5. In the government's view, the use of the special interrogatories added clarity to the unanimity instructions, and reduced the need for extensive discussion on the subject. In light of the Court's decision to grant the defendant's request to forego the use of special verdict forms for those counts, the government is attempting to adjust its summation to include a more detailed presentation of the specific charged statements and the issue of unanimity. Given the short time that has been allowed for argument, this presents substantial difficulty. For this reason, the government respectfully requests that the Court allow 15 additional minutes of argument for summation. 1 The purported basis for the defendant's objection was that "for all practical purposes except punishment the verdict form converts five counts charged by the grand jury into eleven counts." This objection is not only inconsistent with the defense's previous arguments, it is baseless. Use of special interrogatories would have no impact on the scope of the charges, as it would merely track the charged statements as identified in the Court's instructions. Likewise, the special unanimity instructions have not expanded the scope of the charges because Counts 1, 2 and 5 each charged multiple false statements, each of which constituted a sufficient basis for a guilty verdict. In any event, given that the defense waived any objection to the indictment based on duplicity (see Fed. R. Crim. P. 12 (b) and (e)), there is no basis for the defendant to object to the giving of special unanimity instructions (and, indeed, the defense has agreed to their use), as such instructions have no impact other than to assure that any guilty verdict will be unanimous and that the government will be able to secure a conviction based on a unanimous finding with respect to any of the charged statements. 3
Case 1:05-cr-00394-RBW Document 297 Filed 02/19/2007 Page 4 of 5 For the foregoing reasons, the government respectfully requests that the Court allow 15 additional minutes for summation in this case. Respectfully submitted, /s/ PATRICK J. FITZGERALD Special Counsel Debra Riggs Bonamici Kathleen M. Kedian Peter R. Zeidenberg Deputy Special Counsels Office of the Special Counsel U.S. Department of Justice 1400 New York Ave., N.W. Washington, D.C. 20530 202-514-1187 Dated: February 19, 2007 4 Case 1:05-cr-00394-RBW Document 297 Filed 02/19/2007 Page 5 of 5 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this 19th day of February, 2007, I caused true and correct copies of the foregoing to be served on the following parties by electronic mail: William Jeffress, Esq. Baker Botts The Warner 1299 Pennsylvania Avenue, N.W. Washington, DC 20004-2400 Facsimile: 202-585-1087 Theodore V. Wells, Esq. Paul Weiss 1285 Avenue of the Americas New York, NY 10019-6064 Facsimile: 212-373-2217 John D. Cline, Esq. Jones Day 555 California Street San Francisco, CA 94104 Facsimile: 415-875-5700 Patrick J. Fitzgerald Special Counsel U.S. Department of Justice 1400 New York Ave., N.W. Washington, D.C. 20530 202-514-1187 By: /s/ Debra Riggs Bonamici Deputy Special Counsel
Juror questions and witness answers, collected from a variety of sources and, for the most part, not sterilized of the sources' editorial remarks.
In some caes, follow-up questions were asked (of the witness) by counsel for the defense or the prosecution. Links provided above each "Q & A" so you may review context for yourself.
Grossman - January 24
Q. Did State have anything to do with sending Wilson on trip to Niger?
Q. Who sent him?
A. CIA as far as I know.
Q. What documents did you review in preparation for your testimony here?
A. The grand jury documents.
Q. Did State have ANYTHING to do with her trip.
A. No, as far as I know.
The responsible agency was the CIA.Mbr> As far as you know did the State Department have anything to do with this.
Q. What material did you review?
A. I reviewed my GJ testimony.
Q. Did you review FBI statements.
A. I was shown it in small bits.
Grenier - January 24
Schmall - January 25
At return at 10:26, Judge Walton is denying a request from the jury to enter Schmall's annotated table of contents into evidence, as it is not relevant to either side's case. A modified version of the document, stripped of classified information, has already been admitted.
This is resulting in a lengthy back-and-forth with the defense insisting that it should be entered into evidence because it goes directly to Schmall's credibility. The government contends that it is merely a back door way of getting in to the "memory defense," which they are not legally permitted to do unless Libby testifies. It strikes me as obvious that the reason the defense wants to emphasize the document is, in fact, to point out how people's memories of important things diminishes over time.
At 11:17, the judge instructed the jury that the questions about the content of the memo by Mr. Klein during cross-x are not evidence, only the responses by Mr. Schmall.
Walton also asked a question from a juror: "What do you mean when you say `independent recollection.'" "Yes sir. That's recollection without reference to notes I have written."
Another question from a juror: "Who wrote the notes on the documents." "That was my handwriting, sir."
Another question about what the "T" annotation meant. It referred to a tasker. The "T" visible on the memo in question was in reference to a redacted item, not the Wilson matter. "There are a lot of questions that I'm asked that I don't put into a formal tasker."
Walton (juror question). What do you mean "independent recollection." what's your understanding of what you say. A recollection w/o the benefit of looking at notes I may have written.
Walton. TOC June 2003-who would have written it?
Schmall That was my handwriting.
Walton June 14 2003-there was no T on it. What does the T represent?
S to represent a tasking.
Walton You did not put a T on it
S Not in reference to that-it referred to something that was redacted.
Walton Does the absence of a T have significance?
S there are a lot of questions asked that I don't put into a formal tasking.
Walton that entry why did you put that there.
S I would have written a question down of something I didn't have an answer to. If I get a question I don't know the answer to, I'll write it down. I wasn't able to answer it, but we didn't consider it a formal tasking.
Walton You indicated in ref to Libby having concerns about CIA people revealing info on briefing. You said he was irritated.
Walton What's the basis for your belief he was annoyed?
S Tone of voice, body language.
Martin - January 29
After a recess, Judge Walton notes that there is no dispute that the NIE had been declassified before Libby disclosed it on July 8, 2003 to Andrea Mitchell of NBC News -- although Ms. Martin was unaware of that at the time. He also confirms with Martin that she knew and conveyed that Valerie Plame worked with CIA and was an agent.
Regarding the NIE and her Andrea Mitchell call. She (Martin) always advocated declassifying the NIE, but was a a bit concerned when Cheney told her to go with it in her call, since she was still under the impression that it was classified. The judge asked her about that, and what (if any) action she took on that concern. She noted that she didn't take any further action "because the Vice President of the United States told me to say it."
July 8, 2003 - No dispute that certain portions had been declasified, but Martin didn't know that.
Libby/Cooper call - In same room, on another call. Did you ever ask him what he said while you were on the other call? No.
Harlow - Joe Wilson. His wife "works over there." Her notes indicate CIA agent, but the call didn't say that.
Was it unusual for the communicators not to be involved when responding to the press? Yes.
Have there been other instances when you felt reporters didn't get the story right? Yes (big courtroom laugh).
Walton-a juror question: In reference to call between Libby and Mitchell, you indicated some concerns about NIE being revealed. Can you tell us what your concerns were?
M I thought the NIE was classified, and we shouldn't talk about it.
Walton, did you do anything, inform anyone about that.
M I was still not clear what it mean when VP says, "you can say this." I was still urging them to declassify it and disclose it to the public.
Walton, if you had concerns, why didn't you take action?
M BC VP of US had told me to say it, I didn't know where I was going to go. [she had this snitty tone, as if to say 'what are you, kidding? he's the VP']
Walton, in reference to the questions I was asking the witness, There is no dispute between the parties that on July 8 2003, that certain portions of the NIE had been declassified although Ms. Martin had not been made aware of the declassification.
Walton, in reference to the discussion that Libby had to Cooper at Andrews AFB, you indicated that certain portions of that conversation you didn't hear bc you were on another telephone call, you were in the same room, but on a call. Did you ever ask him what he said to Cooper while you were on the other telephone.
Walton When you discussed your first telephone call with Mr. Harlow. How did you describe Ms. Wilson's employement
M I believe I said, former Ambassador Joe Wilson his wife worked over there, I didn't say she was an agent, but I wrote it in my notes.
Walton you didn't say that
Walton Was it unusual not to involve the communicators when responses being made to inquiries by the press. Did you have concerns about communicators not being included. [damn good question, juror!!]
M I was concerend about DC. I wasn't aware about what was going on on the Plane, I was concerned that we couldn't advise them about this matter.
Walton refers to an exhibit, asks why Hadley and Scooter got crossed off of her notes. I was thinking about who could be "actors," crossed that out then wrote "messengers," then I crossed out Hadley and Scooter I thought they weren't the appropriate Admin people, we needed to have, not the deputies, not the number 2s we needed the number 1.
Walton do you believe reporters got stories wrong and ommitted critical facts. What would you do?
M reporters often get things incorrect. You have to make a judgment call to decide whether you're going to confront the reporter, whether you're going to ask for a correction. We often have back and forth, they don't want to do corrections because they believe they were right. In some cases I feel that it would be productive. In some cases I won, In some cases I lost. I guess in reference to Kristof, if you don't have relationship and I didn't have a relationship and it was a columnist who tended to not agree with us, to be a little more aggressive to us, you might aggravate and create another story by calling them on it.
Fleischer - January 29
Judge Walton then asks why Fleischer didn't say anything about Valerie Plame at a press gaggle on July 12, 2003. Fleischer says again that he just didn't think it was so important at that time -- more important was explaining that the President had not intentionally misled the public. Walton asks if Fleischer had ever thought the Plame information was classified, given that Libby had told him it weas "hush-hush." He says he never heard that phrase before -- and whenever anyone told him something classified, they informed him ahead of time that it was so.
Walton: [re juror questions] Some of the questions you have submitted would call for this witness to speculate.
Walton: At the gaggle with Dr. Rice, why did you at that time on July 12, why didn't you say anuthing about Wilson?
Fl I didn't think much that I had been provided at that lunch, after I saw that CBS report, what struck me was that could be that people believed Wilson's report, if they thought the VP knew about it they might think the Pres knew it. So I thought I'd try this.
Ari smiling at someone. Now looking toward sidebar.
In answer to Richmond-Ari is quite poised. Until Jeffress asked about that roundtable that was objected out. And my use of "shiv" is my own word. Fleischer didn't use it.
Walton: How many reporters were at the gaggle that Rice was at?
Fl 8 reporters 4-5 cameramen and photographers.
Walton As PS, did you think it proper to ask Mr Libby if what he told you was classified, given that he told you it was hush hush.
Fl I never heard those words hush hush QT used before WRT national security. I never thought I should. I wish I had. The procedure is very strict, any time anyone from national security would say to me something was classified, it always began, "this is classified." The procedure is strict.
P You testified that you believed that the name Plame or Plamay was used. What makes you think it was used?
Fl my memory.
Addington - January 30
Walton Can you provide clarification why sometimes request for documentations was sent to Libby, and why, sometimes, it was not.
A I have to make a judgment who might have responsive documents. The first one was very broad. For some of the later requests, such as originals of Scooter Libby's documents, I' don't have to send them to the guys in the motor pool. There were a few requests for particular things, so I could go to the person who had that particular set of records.
Walton Are you familiar with practice of witnesses as far as reviewing information before they testify in criminal matter.
A If attorneys have access to records, they will review them.
Walton are you familiar to the practice of witnesses preparing for testimony
A I believe there is a rule about access to your own documents.
Miller - January 31
Following a ten-minute recess, the Judge asks Miller questions from the jury. First, why didn't she contact Libby for a waiver earlier?
Miller says it was because she did not yet have an agreement with Fitzgerald that questioning would be limited to one source--Libby.
Why did she makes the decision to go to jail?
"Because all of my reporting depending on people being able to trust me," she says. "I felt as a professional, as an ethical matter, I had no choice, just trying to do the right thing vis a vis my sources. It was too important..."
Have you ever had previous memory losses such as this in your career?
"Yes," says Miller. She gives an example from preparing her last book. Her notes corrected her memory--she had misremembered it, and from that time on tried to be very careful taking notes.
Any agreement with Libby that might have been considered a quid pro quo?
No, other than the way he was to be identified. "He didn't ask me to do anything in exchange," she says.
Walton Why didn't you or attorney contact Libby earlier.
M BC I was afraid of fishing expedition. It was only after I had both things.
Walton If you had had his personal waiver immediately, would you have testified
M I still needed agreement that it would be this one source on this subject. As soon as I got both, I went to testify.
Walton. Why did you make decision to go to jail.
M BC all of my reporting depended on my ability to protect sources. Until I had something written from Libby, not something his boss asked him to sign, I felt that as a professional matter, it was all I could do. I wasn't trying to be a martyr. You can't operate that way in DC, it was too important in national security reporting.
Walton Have you ever had memory losses like the memory loss you said you had with LIbby.
M When I was preparing my last book, there was an incident. I went back and found out the story was very different. I'd actually misremembered it. From taht time, I've been careful about notes, trying to be careful.
Walton Did you make agreement with Libby regarding sharing of info that might be a quid pro quo.
M No, only the way in which he was to be identified. There was no quid pro quo.
Walton. The notes that you found after you were asked to look for notes. Where did yo locate those.
M Right under my desk at NYT in shopping bag.
Walton IS that where you kept your notes.
M That's where I kept notes for a relevant period of time before I went to jail.
Walton is taht your standard method of archiving.
M I meant to archive them. I assumed I'd have time to take the notebooks home for safekeeping. That's why they were there. But the marshalls took me away right away.
Walton how many other notebooks.
M About 15 or 20.
Cooper - January 31
"Did you ever investigate about he forgery question vis a vis the Niger/uranium story?"
Cooper: No--that wasn't my beat.
Walton: Did Dickerson tell you what he had heard in Africa?
A few more fairly inconsequential detailed questions about her emails, and Cooper is dismissed.
Walton: One of the questions I'm not going to be able to ask, if I don't ask, don't speculate about what response would have been.
Walton: did you ever investigate by whom and why those documents were forged.
MC I think others did. I never looked into Niger forgery question in any detail. I cover WH this sort of had more to do with Italian embassy. For whatever reason it fell out of my purview.
Walton during the conversaton with Dickerson, did he relay any information to you that he had received over there.
Walton Did you think about substance of conversation with Libby before subpoena
MC No, I focused on it well before subpoena, once to write war on wilson question mark piece, and once when the disclosure of this CIA agent became a big deal, I had many conversations to reflect on my conversations with Libby and others.
Walton The response that characterized Ms Wilson as CIA agent, you'll have to discount that, it's not an issue in this case, therefore you can't speculate about that.
Walton regarding 7/11/2003 email from you to Duffy one of the lines indicated Rove/P&C,
MC privileged and confidential. I thought it'd keep him from forwarding that to others.
MC A reference to Timothy Burger, the correspondant for handling intelligence issues.
Bond - February 5
"Why didn't you write down (Libby attorney) Tate's comments during interview?"
Bond: "Libby was being interviewed, not Tate"
Bond says in other cases, it is her practice not to write down attorney's statements in notes.
Jury asks why she didn't take notes.
Bond id's Agent Kirk Armfield as the agent taking notes, chalks it up to the fact that she took notes the first time, he took them the second time, no particular reason.
from Swopa ...
Judge Walton (JW): (to jury) Several of the questions you've submitted I can't ask. Please note that in these cases, you shouldn't speculate to yourself about the answer, nor should you discuss it with your fellow jurors.
JW: (to Bond) Why didn't you write down the comments by Mr. Libby's lawyer in October 2003 that Libby hadn't had enough time to review documents?
B: I typically just write down the notes from the interviewee.
Russert - February 8
Walton (W): Had there been any discussions before Novak article of Wilson's wife
Tim Russert (T): No.
W: After his article was published?
W: During deposition, were you given a list of questions ahead of time?
W: Any script you were given?
W: Did you approve or ban any questions in advance?
T: No, I answered what I was asked.
W: Did you relate any claims by Mr. Libby about Wilson's wife to Shapiro? (on July 8th, apparently)
T: Only remember talking to him about Chris Mathews.
W: What were circumstances of call to Buffalo News reporter?
T: (explains Fazio-Clinton debate, what reporter said, what he complained about. Says he then sent a letter to that effect, and paper printed clarification.)
W: Remember when you called reporter? How long it lasted, etc?
T: I don't. Remember letter more than phone call.
Woodward - February 12
from Kim Pearson ...
As of June 27, 2003, do you know of other reporters who knew that Plame worked at the CIA?
Woodward: It's possible.
Juror question: As of June 27, did other reporters know anything about Wilson's wife working for the CIA?
Woodward: It's possible. He told Pincus.
Walton: Is it your understanding that any other journalist knew about Plame.
BW The reporter working on it knew it. I told him.
Sanger - February 12
from Kim Pearson ...
Judge: Ask Sanger whether he recalls when he learned about Valerie Plame's identity.
Sanger: "Probably would have been with the publication of [Robert] Novak's column."
Walton: Did there come a time when you learned of Wilson's wife.
DS With the publication of Novak's column.
Walton: that was how you found out.
Pincus - February 12
Novak - February 12
from Kim Pearson ...
Walton: Did you discuss the information from Armitage with anyone other than Karl Rove?
Novak: Yes, your honor.
Walton: Who is that?
Novak: Says he spoke to a spokesman for the CIA.
Wells also asked Novak whether he shared a draft of his column on July 11 with lobbyist Rick Hohlt, whom Novak identified as a close friend. Wells said that he talked to Holt almost every day. Wells asked whether Novak considered Holt "a gossip." Novak said that Hohlt talks to a lot of people.
Did you discuss Wilson's wife with anyone else between learning on the 8th and writing column.
Yes, Bill Harlow, spokesman for the CIA. I believe that was the only one. He testified he might have asked Libby about it but he didn't get a positive response.
Walton: Without relating what someone would have said in response to what you said. Did you, once you learned about Wilson's wife and the fact that she worked at the CIA, did you discuss it with anyone prior to your article.
Novak: yes, I spoke to Bill Harlow.
Fitz-just the names.
RN Spokesman for CIA. I testified that I might have asked Libby about, but I don't have a clear recollection bc I don't have a clear response.
Kessler - February 12
Thomas - February 12
Carl Ford (past Asst. Sec. of State) - February 12
Abramson - February 13
Hannah - February 13
from Kim Pearson ...
Judge: "Did you ever think that important national security issues were ever short-changed" because of Libby's memory lapses.
Hannah: "No, I think that would be an unfair criticism." He added that Libby handled his responsibilities as well as anyone in that position.
Walton Aside from Libby's difficulty with memory did it lead him to have concerns about his effectiveness?
Walton When Libby had memory lapses, what was done to trigger recall of things discussed
Hannah He was quite good at remembering ideas and concepts, very bad at figuring out where they came from, how they came to him.
Walton Would Libby deny that you had informed him of these things
Hannah This was a fairly regular pattern with Scooter. He was good at remembering his own arguments, key points, key factual points that he would want to make, he was good at keeping his arguments organized.
Walton Nat Seucrity issues greater than, less than, equal to normal level?
Hannah As I said, this period since 9/11 has been particularly intense for any relative period of American foreign policy, that period was particularly intense because of initiative in Iraq, liberation of Iraq and aftermath of that, having that many American forces in that country. Particularly fast moving period of time for top govt officials. More intense period in always intense environment
Walton How would you compare intensity with your responsibilities at this time [It is the year of Iran]
Hannah IN some ways there were such major questions of security, and the situation was so new still in a sense that I'm not sure in the 15 or 16 months taht we've experienced anything quite like that. Iraq was sort of on a course [to hell] There have been a lot of adjustments to that course. Nothing quite like that period of intensity. Together with everything else in the region. A little bit unique, at a higher intensity than I'm forced to deal with
Walton Sec Issues every shortchanged by Libby bc of schedule
Hannah That woudl be unfair criticism. Anybody who worked at these kinds of levels, to get through inbox is a real luxury, to stay ahead of the curve, I'd say he managed as well not only in Nat Sec affairs, as well as any other boss I've worked for
For the index averse readers, additional recent filings:
This filing reiterates many of the arguments made in Fitzgerald's Consolidated Proposed Jury Instructions [Doc 285], filed on Wednesday, February 14.
Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 1 of 11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA ) ) CR. NO 05-394 (RBW) v. ) ) I. LEWIS LIBBY, ) also known as "Scooter Libby" ) GOVERNMENT'S RESPONSE TO THE COURT'S DRAFT JURY INSTRUCTIONS The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, SPECIAL COUNSEL, respectfully submits the following response to the draft jury instructions provided to the parties by the Court on Friday, February 16, 2007, as well as to the defendant's response to the Court's draft, and objections to the Court's proposed verdict form filed on February 17, 2007. Unanimity Instructions and Special Verdict Forms The government does not object to modifying the unanimity instruction to read: If you cannot unanimously agree that a particular statement or representation alleged in Count [One, Two and Five] was false, then you must find Mr. Libby not guilty of that count. The government objects to including the phrase "and that Mr. Libby knew this when he made the statement" in that it is potentially confusing, given the Court's other instruction that defines "false" to including defendant's knowledge of the statement's falsity. As the government has previously argued, it is potentially confusing and inappropriate to repeat portions of instructions in multiple contexts. With respect to the Court's suggested verdict form, the government prefers the use of the special verdict form suggested by the Court to the use of a special verdict form with respect to Count One and general verdict forms with respect to the other counts as requested by defendant. When
Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 2 of 11 asked by the Court on February 15, 2007 whether the government could agree to the defendant's proposal, the government responded that it could agree if certain additional instructions were provided. That position has not changed; however, as previously expressed, the government's preference is for the use of the verdict form drafted by the Court. Moreover, the government notes that the defendant has failed to express any reason for his objection to the use of a special verdict form with respect to Counts Two and Five and the government is at a loss to think of one. The government is unaware of any case authority indicating that the defendant's choice governs the decision; instead, as the government reads the applicable case law, the matter is left to the discretion of the trial court. Obstruction of Justice The government agrees that the language of the Obstruction of Justice elements instruction should be modified. The government proposes that elements (3) and (4) be modified as follows: (3) That the defendant corruptly endeavored to influence, obstruct or impede the due administration of justice; (4) That Mr. Libby carried out the corrupt endeavor by making the following three allegedly false statements with intent to mislead or deceive the grand jury as to when or how he acquired or thereafter disclosed to the media information concerning the employment of Valerie Plame Wilson by the CIA. Finally, the government also agrees with the defense that the passage "and Mr. Russert told Mr. Libby that all the reporters knew it" should be added to False Statement No. 1 and removed from False Statement No. 2 in the Obstruction of Justice instruction. 2
Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 3 of 11 Perjury The government has no objection to removing the ellipses between the two sub-statements in Statement One of Count 5, and to editing the parenthetical to state that the statement extends from page 187, line 14 to page 188, line 5, as requested by the defense. The government also has no objection to the defendant's proposed change to the last sentence of the perjury instruction, so that it references the four allegedly false statements rather than the two appearances. The government maintains that there is no factual basis to support the giving of any instruction regarding ambiguity. See, e.g., Mathews v. United States, 485 U.S. 58, 63 (1988)(stating that defendant is "entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor"). Thus the government objects to the language concerning ambiguity contained in the Court's draft instruction regarding the elements of perjury, and requests that it be deleted. The government agrees with the Court (and with defense counsel, who originally made the suggestion) that it will be helpful to the jury to have citations to the full grand jury transcripts for the testimony that is at issue with respect to Counts 4 and 5. The government therefore provided such an exhibit with its February 16, 2007 filing (Government's Objections and Proposals Regarding Final Jury Instructions). In the most recent set of instructions provided by the Court, the transcript cites have been incorporated into the instructions; therefore, a separate exhibit may no longer be necessary. If the Court would still like to include the "Exhibit A" previously provided by the government, the government has no objection to including it with the instructions, and disagrees that there is any potential for prejudice to the defendant in doing so. 3
Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 4 of 11 If, however, the Court believes providing the cites within the instructions obviates the need for a separate exhibit, the government also has no objection. If that is the case, the government suggests the following proposal to address the defendant's concern that the current language of the instructions indicates that a separate exhibit is being provided: Change "with" to "in" in the sentence that currently states, "That portion of the grand jury testimony which the indictment alleges in count four was false, is being provided to you with these instructions, with those portions of the testimony that are allegedly false underlined." This sentence is used with both Counts 4 and 5, so if adopted, the change should be made in both places. Beyond a Reasonable Doubt The government agrees with the defense's suggestion that the phrase "beyond a reasonable doubt" should be moved from its current location after "in order to prove an offense" to between the phrases "the government must prove" and "the following four elements" in each of the elements instructions. Evaluation of Prior Inconsistent Statements The concerns raised by the defense on this issue, namely, that the Court's suggested language "suggests that a prior unsworn statement is, to some degree, inherently questionable because the declarant faced no criminal punishment for lying" and that "the prior statement could have been made before any motive to lie existed," suggest that the defense may be planning to argue prior inconsistent statements for their truth. Obviously, such an argument would be contrary to law and contrary to the Court's instructions. However, the government agrees that the phrase "when the witnesses were not under oath" is not included in the D.C. Form Instruction, and has no objection to its deletion. 4
Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 5 of 11 Instruction Regarding Defendant's July 12 Conversation with Judith Miller The government requests that, if the Court's current language is used, the following should be added before "beyond a reasonable doubt" at the end of the instruction: "including the allegations of Count One." Alternatively, the government proposes that the following language be used in place of the Court's draft instruction: Count One of the indictment originally included an allegation that Mr. Libby obstructed justice by making false statements about a conversation with Judith Miller on or about July 12, 2003. That allegation has been dismissed and is no longer before you. You may not consider the fact that the allegation was once made, or the fact that the allegation was later dismissed, to affect or influence your deliberations. You may, however, consider the evidence you heard regarding the July 12, 2003 conversation between Mr. Libby and Ms. Miller, as well as evidence you heard regarding all other conversations between Mr. Libby and Ms. Miller, as evidence in determining Mr. Libby's guilt or innocence on all of the counts of the indictment, including Count One. In addition, the government notes that, as currently formulated, this instruction is included in both the limiting instructions and the final instructions. Only one copy of the revised instruction should be sent back to the jury, and the instruction previously given should be removed from both sets of instructions. Instruction Regarding IIPA The government has noted that the Court intends to allow the defense to re-open the evidence to admit a copy of the IIPA. We understand that this will obviate any need for an instruction on this issue. 5
Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 6 of 11 Given the likelihood that the defense will focus on the IIPA statute in closing, and on the defense's arguments during opening that suggested that others should be on trial instead of him, the government proposes that the following instruction be given: You are here to decide whether the government has proved beyond a reasonable doubt that the defendant is guilty of the crimes charged in the indictment. The defendant is not on trial for any act, conduct or offenses not alleged in the indictment. Neither are you concerned with the guilt or innocence of any other person or persons not on trial as a defendant in this case. Pattern Crim. Jury Instr. 5th Cir. 1.19 (2001). Memory The government strenuously objects to including the language which the defense proposes be added to the Court's current instruction on memory: You should consider that a person's confidence in the accuracy of his recollection of an event may not correspond directly to the accuracy of the person's recollection. In other words a person may be very confident that his memory of an event is accurate when in fact it is inaccurate. You should also consider that if a person remembers an event incorrectly the first time he tries to recall it, his later recollections of the event may repeat that error. Def. Rsp. at 8. As an initial matter, the government notes that, far from conceding the accuracy and reliability of the "findings" concerning which the defendant proposed to introduce expert testimony, the government has consistently maintained that the proffered "findings" could not reliably be applied to the facts of this case and would not be helpful to the jury. See R. 139 at 17. 1 The question of whether the proffered "findings" should be admitted does not turn on whether they are reliable 1 The government did not challenge Dr. Bjork's credentials or general expertise, but merely challenged the reliability of his findings as applied in the instant case, and argued that the admission of his opinions would be confusing and misleading, and not helpful to the jury. 6
Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 7 of 11 in the abstract, or in contexts distinct from this case. What matters is whether they meet the Daubert standard of being both scientifically reliable and relevant, that is, whether the "`reasoning or methodology properly can be applied to the facts in issue." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 593 (1993). As the Supreme Court has cautioned, "`Fit' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes.'" Id. at 591. See also General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997)(approving exclusion of expert testimony as unreliable where studies offered in support of expert's conclusion dissimilar to facts of case). Thus, as the government previously argued, whatever merit Dr. Bjork's findings may have in other contexts, putting such findings before the jury in this case would serve no purpose other than to confuse and mislead. Nothing in the testimony of Dr. Elizabeth Loftus at the Daubert hearing justified the presentation to the jury in this case of Dr. Bjork's opinions regarding the correlation of confidence and accuracy, or the likelihood that errors in recall may be repeated. On cross-examination, 2 Dr. Loftus conceded that the studies Dr. Bjork relied upon regarding the correlation between confidence and accuracy failed to take into account the distinction between comparisons between the confidence and recall of multiple witnesses to the same event, and comparisons between recollections of different events by the same person. 10/26/06 a.m. Tr. 84-85. Dr. Loftus also acknowledged that studies showing that people are likely to repeat errors in recollection generally focused on the circumstances involving eyewitness identification, and failed to present any studies that addressed 2 Rather than expose Dr. Bjork to cross-examination, the defense elected to present the testimony of a different expert, Dr. Elizabeth Loftus at the Daubert hearing conducted by the Court, and focused Dr. Loftus's testimony on studies showing that jurors failed to appreciate the proffered findings on memory, rather than on the proffered findings themselves. 7
Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 8 of 11 the question of whether jurors were able to appreciate this phenomenon in any other context. 10/26/06 p.m. Tr. 13-14. The instructions defendant seeks to include would improperly put before the jury claims and conclusions that Dr. Loftus conceded, and the Court previously found, were supported only by studies involving substantially different factual situations, and unsupported by any studies showing that the issues, at least applied in the factual context of this case, were outside the ken of the average juror. R. 169 at 15 ("This Court . . . has difficulty concluding that the studies provided by the defendant are applicable in any meaningful way to the case at hand, because they do not focus on the precise issues before the Court.") and 25-27 ("[T]he theories about which Dr. Bjork would testify are not beyond the ken of the average juror."). Giving the requested instructions would deprive the government of an opportunity to refute through cross-examination the reliability and applicability of the claims and conclusions included therein in the context of this case, and would be highly misleading and prejudicial. As this Court may recall, Dr. Loftus conceded that the correlation between confidence and accuracy when comparing a single subject's memories is different from the correlation when comparing the memories of multiple subjects. Specifically, Dr. Loftus acknowledged that the correlation is stronger when you compare one subject's memories of different events. 10/26/06 a.m. Tr. 85. Defendant ignores this distinction and argues that the instruction is needed to assist the jury in assessing the defendant's apparent confidence while testifying before the grand jury, and in comparing the recollections of multiple witnesses, including defendant, Tim Russert and Ari Fleischer. In light of Dr. Loftus's comments, even assuming that it would be appropriate to extrapolate from research involving circumstances far different from those present in this case, it 8
Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 9 of 11 would be inaccurate and misleading to instruct the jury regarding a weak correlation between confidence and accuracy, and allow the defense to argue, based on that instruction (See Def. Rsp. at 9), that the jury should not consider the relative confidence levels reflected by defendant's grand jury testimony in assessing whether his false statements were the product of faulty memory or deliberate lies. With respect to the jury's assessment of the relative reliability of the recollections of defendant and Messrs. Russert and Fleischer, the proposed instruction would serve no purpose. According to the defense, all three witnesses testified with apparent confidence in the accuracy of their recollections. Under such circumstances, the jury is not likely to consider apparent confidence as a significant factor, with or without an instruction on the subject. The lack of need for an instruction on the weak correlation between confidence and accuracy is further supported by the prospective jurors' comments during jury selection which clearly indicated that the fact that people sometimes "firmly believe that their memories are accurate when they are not" is a matter of common knowledge. The proposed instruction on the likelihood of repeating recollection errors is even more problematic. None of the studies provided by Dr. Bjork in support of this issue involved factual contexts even remotely similar to this case; none involved erroneous recollections of conversations. The defense suggests that the instruction is needed to provide the jury with a basis for contradicting the government's argument that, once defendant spoke to the FBI in October 2003, he was motivated to stick to his story, but fails to explain what "error" defendant may have repeated. Whatever that error may be, it would be highly prejudicial to state as a fact that the jury is bound to accept, a "finding from the science of memory" that has not shown to be reliably applied in circumstances like 9
Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 10 of 11 those presented here -- particularly where the only factual foundation for the instruction is the assumption of the very fact the jury will be required to decide. Limiting Instruction Regarding Disclosure of NIE The government requests that the phrase "at least" be removed from the Court's most recent formulation of the limiting instruction regarding the propriety of defendant's disclosures of portions of the NIE because the evidence shows, at best, that the portions of the NIE disclosed by the defendant were declassified on or after July 8, 2003, and not before. Respectfully submitted, /s/ PATRICK J. FITZGERALD Special Counsel Debra Riggs Bonamici Kathleen M. Kedian Peter R. Zeidenberg Deputy Special Counsels Office of the Special Counsel U.S. Department of Justice 1400 New York Ave., N.W. Washington, D.C. 20530 202-514-1187 Dated: February 17, 2007 10
Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 11 of 11 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this 17th day of February, 2006, I caused true and correct copies of the foregoing to be served on the following parties by electronic mail: William Jeffress, Esq. Baker Botts The Warner 1299 Pennsylvania Avenue, N.W. Washington, DC 20004-2400 Facsimile: 202-585-1087 Theodore V. Wells, Esq. Paul Weiss 1285 Avenue of the Americas New York, NY 10019-6064 Facsimile: 212-373-2217 John D. Cline, Esq. Jones Day 555 California Street San Francisco, CA 94104 Facsimile: 415-875-5700 Patrick J. Fitzgerald Special Counsel U.S. Department of Justice 1400 New York Ave., N.W. Washington, D.C. 20530 202-514-1187 By: /s/ Debra Riggs Bonamici Deputy Special Counsel
March 2006 April 2006 May 2006 June 2006 July 2006 August 2006 September 2006 October 2006 November 2006 December 2006 January 2007 February 2007 March 2007 April 2007 May 2007 June 2007 July 2007 August 2007 September 2007 November 2007 December 2007 January 2008 February 2008 March 2008 April 2008 May 2008 June 2008 July 2008 August 2008 September 2008 March 2009 April 2009