Judge Reggie Walton castigated the Libby defense team yesterday for closing the case without calling their client, Lewis “Scooter” Libby, to the stand.
Judge Walton said he “believed all along in the process that Mr. Libby was going to testify” and that his lawyers were now “playing games with the process.” He made his remarks out with the jury out of the courtroom as he ruled that the defense would no longer be able to use some evidence, including something the jury had already heard: a statement the government agreed to saying Mr. Libby, as chief of staff and national security adviser to Vice President Dick Cheney, “worked long hours, received daily intelligence briefings and attended many meetings concerning important matters of national security.”
[…]
Judge Walton said his ruling meant that the chief defense lawyer, Theodore V. Wells Jr., would not be able to make that argument to the jury. Mr. Wells will be permitted to tell the jury that Mr. Libby had “a lot on his plate,” Judge Walton said. But because Mr. Libby is not testifying, Mr. Wells cannot argue that those issues were of greater importance in Mr. Libby’s mind “as compared to the issue of Valerie Plame and Ambassador Wilson.”
[…]
Judge Walton said he would be shocked if he were reversed on appeal over his rulings about Mr. Libby’s not testifying. If that happens, he said, “I’ll hang up my spurs.”
I don’t know the rules of evidence on these matters but Judge Walton made it quite clear before the trial started that “the memory defense” was only permissible if the defendant testified. He made it seem that this was a matter of legal precedent, not his own whim. The defense team did not protest that, giving me the impression they agreed that this was in fact the way it usually worked.
Wells and company–while never directly saying Libby would testify–certainly gave every impression that they were going to call their client to the stand. As a result, Walton made several key early rulings on evidence, the preliminary jury charge, and overruling objections to memory defense-related cross examination of prosecution witnesses. He’s right to be steamed.
UPDATE: Marcy Wheeler live-blogged the exchange and the defense at least offered a plausible explanation that, while they intended to bring Libby to the stand, they think they’ve made their point with other witnesses. Further, Walton comes across as much less peeved than Neil Lewis’ NYT report suggests:
[Wells:] We thought there was a high likelihood Libby would testify. In December 20, 22, we for the first time received Jencks, before that time, we had no access, we did not know that witnesses like Grenier and Schmall had an utter lack of recollection. Once we got Jencks, our perception of case began to change, nonetheless we continued to think high probability that Libby would testify. We had no idea that that GJ material showed us. Nor did we know until cross Miller that it would be dismissed. Nor did we know until we examined Cooper where we think evidence shows that it’s in the notes. We’ve proceeded at all times in good faith. To the extent there’s concern on your honors part that counsel was playing fast and loose, that’s not so. We spent hours working on preparing Vice President. We spent hours preparing to put Libby on the stand. We had to make decision based on our confidence that govt had proven their case beyond reasonable doubt. There’s no box that says innocent or did you tell full story. I’m the one that makes the call, my recommendation along with Jeffress. I had the VP on hold right up until the last minute. We had him ready to testify on Thursday. He had his schedule open. I want to make clear we’ve been upfront at all time. We’ve got to make decisions that are in clients best interest. Once we saw Jencks, our view radically changed, based on what we felt was performance of witnesses.
Walton I assume these are based on AP article entitled Judge: Libby misleads Judge. I did not intend to suggest there had been intentional misleading on that matter. It was indicated by Cline that there was a qualification. I assume based on what you’re saying now, that it was not an indication. I accept that as an accurate statement. To extent that changes can be made in newspaper articles that have already been out.
Wells: Thank you.
That seems quite reasonable. I noted during my live-blogging in the first week of the trial that the first several prosecution witnesses indeed displayed a REMARKABLE lack of memory about almost everything and that this would surely play into the defense’s hands. I don’t know the law here but defense closing arguments should surely be allowed to argue that, if the government witnesses–who presumably had less “on their plates” than the VP’s chief of staff/national security advisor–couldn’t remember those details that it’s fair to conclude Libby could be excused for mixing up the sequence of events in his own head.
