Tuesday, March 6, 2007

What Happened to All the Secret Evidence at the Libby Trial

One of the issues that slowed the prosecution of I. Lewis Libby related to national security evidence that Libby sought to use at his trial.  The procedures mandated by the Classified Information Procedures Act (CIPA) can be quite onerous, and just getting the necessary clearances for the defense lawyers can add months to a prosecution on top of the process of reviewing the documents, redacting certain classified information, and determining appropriate substitutions and stipulations.  Having fought through the CIPA issues, U.S. District Judge Reggie Walton was rather peeved when Libby's counsel announced that his client would not testify but still wanted to introduce the evidence to establish the lack of memory -- or better, the distracted public servant -- defense.  As discussed in an earlier post (here), the Judge said he agreed to allow the evidence to come in on the understanding that Libby would testify, and without him testifying, he would exclude the classified information.

I expect the decision to exclude evidence that related to a key component of the defense because Libby chose not to testify will be a major issue on appeal.  The defense is likely to argue that Libby's due process right to present a defense was undermined by Judge Walton's decision to condition admission on testifying, putting Libby in the position of being forced to waive his Fifth Amendment right if he wanted to introduce evidence to show how distracted he was at the time of the conversations with various reporters.  The Supreme Court acknowledges the defendant's right to offer a defense, but it is not an unconditional right and trials are still subject to the rules of evidence.  In Holmes v. South Carolina, 547 U.S. 319 (2006), the Court stated, "While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." 

The fight on appeal will be whether Judge Walton's decision was "disproportionate to the ends that they are asserted to promote," and whether the court made Libby's decision not to testify too costly.  Unlike ordinary evidentiary rulings, for which judges have wide discretion, the presence of core due process and Fifth Amendment rights will make this a bit closer question.  The odds of Libby, like any convicted defendant, of winning on appeal are not very high, and the high-profile nature of the case made Judge Walton tread especially carefully because an appeal is inevitable after a conviction in a case of this type.  The issue is close enough, however, that predicting how the D.C. Circuit will rule is hazardous. (ph)

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