Thursday, February 15, 2007
The big finale of the trial of I. Lewis Libby was something of a dud, with neither Libby nor Vice-President Cheney called to testify. Indeed, the last day involved no new witnesses, and Special Counsel Patrick FItzgerald did not even put on a rebuttal case, apparently unconcerned about not having the last word in the evidentiary phase of the trial. The end was not without some legal controversy, however, as U.S. District Judge Reggie Walton refused to permit the defense to introduce various items of classified information to butress Libby's claim that his focus in June and July 2003 was on matters of great national importance, and not little ol' Valerie Plame and her husband, Josephy Wilson.
Judge Walton came across, from the sound of the media reports (see CNN.com here), a bit peeved at the defense for claiming before trial that Libby would testify and needed the access to extensive classified information, and then declining to call him to testify but still seeking to introduce the evidence. The requirements for handling such information, under the Classified Information Procedures Act (CIPA), are quite complicated and appear to have occupied a significant amount of the judge's time and energy. By not testifying, Judge Walton determined that the information was irrelevant or inadmissible hearsay because only Libby could provide the context for the information. Judge Walton's position was clear when he said that "[i]f I get reversed on that one, maybe I need to hang up my spurs." The exclusion of evidence that a defendant claims is central to his defense is likely to be a significant issue if there is a conviction.
Professor Doug Berman of the estimable Sentencing Law & Policy blog raises an interesting question (here) about the defense's decision not to call Libby to testify after indicating repeatedly in pre-trial proceedings, particularly the CIPA hearings, that he would testify: did the lawyers intentionally mislead the court? As he notes, if Libby were convicted, one possible enhancement under the now-advisory Federal Sentencing Guidelines is obstruction of justice under Section 3C.1.1. If the defense lawyers misled Judge Walton, it could be a basis for an increased sentence under that provision. I suspect it's unlikely a judge can increase a defendant's sentence for exercising his Fifth Amendment right, but then, defendants are penalized all the time for just going to trial, so an increased sentence for invoking a constitutional right is nothing new.
General Douglas MacArthur once said that "old soldiers never die, they just fade away." The end of the Libby trial certainly has the feel of a proceeding just fading away. Closing arguments are set for Tuesday, February 20, and the case will likely go to the jury shortly thereafter. Then, the really boring part begins -- waiting for a verdict. (ph)