Libby Trial: The Credibility Gap

This post by Pachacutec from a couple of days ago is a really fascinating take on the personalities of Judge Reggie Walton, Prosecutor Patrick Fitzgerald, and Lead Defense Attorney Ted Wells, as they are revealing themselves in the courtroom during the Libby Trial.

The points I’d like to highlight are a couple of early interactions between Walton, Fitzgerald, and Wells that sum up what I think is happening:

Outside of the presence of the jury, it seems Wells may have lost a minor credibility point or two with the judge, and Walton's opinion matters.

(snip)

late this week, Walton more or less called bullshit on Wells over a matter of the defense team's ability to review what turned out to be a rather small stack of documents in time to cross examine Cathie Martin. From emptywheel's notes: "Walton: I thought we were talking about reams and reams of documents. With all the lawyer power you got over there I don't think you'll have a problem." D'oh!

Moreover, with even greater animation, Walton declared it would be "suicide" for Libby not to testify in his own defense if he wants to make a case about his faulty memory. That, after all, was the point and the presumption behind all those months of painstaking CIPA hearings.

(snip)

Let's start with what Reggie Walton said of (Fitzgerald) on the record, outside of the presence of the jury, calling him one of the most scrupulous prosecutors he's ever had before him.

The Libby team went through many months of trying to set up a defense, based on faulty memory, which would allow them to tell a story that is consistent with testimony of the prosecution witnesses – but that still leaves room for reasonable doubt that Libby intentionally lied to the Grand Jury.

Unfortunately for Libby, after the first few witnesses’ testimony – mostly about the intensity of Libby’s interest in Joe Wilson’s trip to Niger - it is clear that Libby will not be able to offer such a story. And it is clear that there is considerable risk in having Libby try to tell it!

Thus, Wells has had to resort to “Plan B,” which is to try to impugn the credibility of ALL of the prosecution witnesses. He is trying to say that Ari Fleischer has an immunity deal and is going to lie to save himself. He is trying to say that everyone at the CIA has a grudge against the OVP and is going to lie to get revenge. Basically, he is trying to say that everyone else is committing perjury in order to wrongfully convict Libby of perjury! And he is trying to find ways of introducing the issue of faulty memory, which he wants to be able to apply to all of the reporters or journalists who may testify for the prosecution (particularly Tim Russert), without Libby’s testimony!

But it seems clear that Judge Walton will have none of it.

By referring to Fitzgerald as “one of the most scrupulous prosecutors he’s ever had before him,” Walton is putting Wells on notice that he does not believe that Fitzgerald would manipulate witnesses just to get a conviction. He is basically saying that he believes Fitzgerald’s witnesses are credible, or Fitzgerald would not rely on them.

By stating the view that it would be “suicide” for Libby not to testify, Walton is sending a message to Wells that Libby is going to have to sleep in the same bed that he has been making for the last few years.