Some color commentary from JustOneMinute:
What we are watching today is the defense knocking the starch out of "Elliott Ness with a law degree" by highlighting a series of blunders the prosecution made. (I'm sure some want to know if Fitz is sweating as he was at the presser. Can't tell from the feed, but he does seem to be wearing that washable seersucker suit again.)
.Two of the biggest blunders to date were failing to put anything on to support the July 12 count on Miller.With that out, obstruction is only available on the Cooper count(are you kidding?) and the Russert count.Fitz seemed shook as he made what I thought was a very week argument that the jury could infer the July 12 stuff from the other conversations. .(I will detail this further tonight when I get home but he never charged Libby with perjury re Miller, only with obstruction and if that's out, it would only seem logical to tell the jury to disregard all that.)
A potentially bigger issue is the offhand remarks the judge made earlier that Libby couldn't put in the memory defense if he didn't testify..Most particualry the CIPA stuff. There was heated argument on it and at 4:30 it will continue. Basically, in stipulating to relevant facts (including that Libby was focused on all that stuff in the CIPA materials) the govt never reserved that the stipulation applied only if Libby testified.
The defense is arguing an agreement was made, not based on Libby's testimony, and they have based their opening statement and case on that agreement.
We will hear more about this.
I thought the rest of the commentary at JOM was as interesting as that first bit, so here it is:
"I predict that while the stipulation might be whittled down a bit--the judge thinking the govt might have misunderstood (ie. been taken to the cleaners by shrewder counsel), most of this stuff will find it's way into the record even if Libby does not testify.
WHAT IS CRITICAL AT THIS POINT IS THAT THE JUDGE HAS BACKED WAY OFF of earlier comments suggesting Libby can't use CIPA stuff etc if he doesn't testify. He can, if he lays the proper foundation.
The more subtle point is the defense counsel has outmaneuvered the prosecution at several key points and the prosecution knows it and is off its edge in my opinion.
(I lent Jim Engle last night's pleading and we discussed this. We seem to be in agreement on this point-- The defense is both fighting for its points on the evidence AND Smacking the SP around a little.)
I thought Woodward was an impressive witness, helpful to Libby and that the jury is paying attention--asking him if anyone else knew--to which he said he'd told Pincus."
Even so, it is clear that Walton will protect Fitz-fong on this. Walton believes it is just impossible that the stipulation would be made without it being conditioned on Libby taking the stand. Walton is extremely biased in favor of the prosecution.
Very difficult for a foreigner to understand. Why can't the defendant make just any defence. "Wasn't me M'lord, I hadn't returned from Mars". Well, if the jury believes that, so be it. If they don't then it was probably not good for the defence to put forward a frivolous argument. But why would they be barred from doing so?
Sorry, but reading these threads I can't help but thinking of Dickens very often:
"If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”