AP
The jury's been locked away for eight days now, popping their heads out to make unsuccessful requests for dictionaries and even losing one of their number to the gaping jaws of "media exposure." In the meantime, CNN reports that presiding judge Reggie Walton has released a memorandum opinion clarifying for the record that he feels the defense has acted to mislead both himself and prosecutors. Specifically, he charges the Libby lawyers with fostering the idea that their client would take the stand during months of closed-door court hearings, and notes that this presumption figured strongly into his decisions to admit or deny classified material throughout the trial. The judge also suggests that Libby's team could have upped its chances of acquittal had it called Vice President Dick Cheney to the stand.
Walton hasn't been shy about criticizing Team Libby these days; in a Feb. 15th courtroom conversation that took place out of jury earshot, the judge reportedly charged that the defense team, led by litigation giant Ted Wells, had "misled" both the court and the prosecution by suggesting that the defendant would testify. According to the New York Sun, the judge vociferously called out defense attorney John Cline over the latter's insistence that prosecutors let jurors receive a set of previously-agreed-upon facts detailing Libby's mindset in 2003 and 2004 (which would bolster the defense's claim that the White House aide may have forgotten conversations he had about then-CIA operative Valerie Plame because he was so busy). Walton reportedly stated that circumstances had changed since the set of facts were first agreed upon, noting, "I don't think you can play coy by suggesting Mr. Libby is going to testify [during pre-trial negotiations and then reneging]," and that "[i]t was absolutely understood from everything that was said to me that Mr. Libby was going to testify." The judge later pulled another plug on the defense by blocking the testimony of its proposed final witnesses, all CIA employees who had briefed Libby daily on worldwide terrorist threats at the time of the alleged leak. The judge's reasoning was that it would be unfair to allow such testimony because Libby wouldn't take the stand to be cross-examined.
While Walton's memorandum opinion was, as CNN noted, written in anticipation of an appeal (which the defense will surely seek should Libby be convicted), it represents a pretty hard come-down on a star-studded defense team that, overall, failed to shine during this high profile bonanza. Wells, legendary for his Jedi-esque ability to sway juries and secure victories for white collar criminals like Frank Quattrone and former McKesson Corp. chairman Charles McCall, ultimately led a defense strategy focused on two star witnesses who never showed. The Valentine's Day announcement that Libby wouldn't testify, not to mention the lack of any subsequent explanation for why not, seem to have left the defense scrambling for a case, particularly given that key aspects of the defense rested on Libby himself. Wells started off with a bang in his opening statement by asserting that Libby was taking a bullet for Karl Rove, the supposed true source of the leak. To back up this claim, the defense presented a note from Cheney (called by Wells "one of the most important pieces of evidence in this case,") in which the Vice President vowed "not to protect one staffer and sacrifice the guy that was asked to stick his neck in the meat grinder." Clarification of this statement could have proved leviathan for the defense; instead, neither Cheney nor the defendant would end up explaining the note or its significance, leaving the entire argument a dangling loose end.
At one point the defense even tripped and reversed its own argument, initially floating the possibility that Libby had mistakenly confused a conversation between himself and "Meet The Press" host Tim Russert with a discussion with columnist Robert Novak (according to the defense, both men spoke with Libby during the week of the alleged leak). Later, the defense asserted that the conversation with Russert had indeed taken place as Libby remembered, but that Russert had learned of Plame's identity from an NBC colleague prior to his conversation with the White House aide. With no Libby testimony to clarify this point, subsequent attempts by the defense to refute the testimony of Russert and fellow star witness for the prosecution Judith Miller were cut short by Walton.
At the end, even Wells' tearful summation (which was, unfortunately for Wells, just in time to mirror Judge Larry Seidlin's histrionic performance during the Anna Nicole hearings) fell flat, reportedly relying on statements like "the wheels [were] falling off the Bush administration," and acknowledging that Libby "made a lot of mistakes." At the end, Wells implored the jury not to "sacrifice" Libby, sobbing, "For the past month he's been under my protection...Just give him back to me." At this point, the odds are looking pretty good for a guilty verdict - though given the defense's near-assurance of filing an appeal should they lose, it sounds like Wells could get his wish to have his client back. Assuming he's hired again for the second round.
