12:06
Walton I had indicated we would break at 3:30, so I can't do it at 3:30, I'll move it up until 1:30, then we'll sit until 4.
Walton What's the issue.
Fitz: The next witnesses are the 3 CIA briefers. at this point, the CIA briefers should not be called, testimony should not come in, wrt your prior rulings. They should not describe threats, when in fact there is no testimony that Libby was obsessed with those threats. We feel strongly that getting into particularly terrorist threat if there's no evidnece Libby was consumed with it, it should not be entered. We saw that issue coming in questions from jurors in their notes. To introduce these, without context of how many terrorist threats were normal. You'll recall that your hands were tied if Libby were to testify.
Walton Counsel will be unable to qualify the extent to which info would have impacted Libby. Only Libby would have capacity to say so. The fact he was briefed on something, The issue becomes whether jury could infer whether this was some level of importance. They would be able to assess that bc of nature of info it would have had some level of importance.
Fitz when we went through two months of hearings, it was clear to me, that the 403 line was drawn differently when it was represented that Libby would testify. It was this fact that made him worry, your honor took a much broader view of relevance and unfair prejudice when that representation was done. With a switch done, that now Libby is not going to testify. In effect CIPA has said defendants are better off when they deal with classified evidence. BC they can say they were consumed by this
Walton COunsel will lose ability to calibrate the impact of this. Not so sure that they can't say this was infor provided to him. Jury is intelligent enough to draw own conclusions, that would have had some level of import
Fitz I'm focused less on defense argument, your honor let in additional materials.
Walton, there may be specific things I ruled on contingent on Libby testify, these were predicated on my understanding that Libby would testify. To extent that those rulings are flawed bc he's not.
F We should not be in position where bar got lowered bc he's not testifying. We're doubly worse off, this is getting in without him testifying.
Walton If the briefers testimony that I briefed him on XY and Z, I've got to consider each item.
F The MIB's that we talked about were predicated on his testimony, with taht predication, if that's gone, they shouldn't be coming in at all.
Walton Documents themselves, you may be right. I never indicated documents would come in.
F We'll pull the cite, I don't want to misstate, it's been a long trial. But I believe you said evidence regarding MIB would not be admissible.
Walton I can't be bound by rulings I made earlier when landscape has changed. You may be right, but I have to reevaluate to what extent evidence might come in.
F Whole point of CIPA was for govt to know what was going to happen before trial. Then when defense says, never mind, we're not going to testify, now Defense is saying that comes in anyway.
12:19
Walton Not going to be any evidence regarding whether this overwhelmed him wrt Wilson and his wife.
Cline has a "what you talking about look" on his face.
Bonamici yesterday you made a very good point, there's a difference between quantity and quality. The govt heeded the distinction you made, the kind of evidence that would come in when defendant did not testify. It was based on that distinction that govt did not object to TYOI's testimony.
Walton Morning briefing info is just a list
B It shows nothing about quantity at all.
Walton I ruled the others stuff that he'd be able to introduce those details.
B You specifically ruled on page 19 that MIBs represented what govt considered important, rather than what Libby thought was important. Just titles of items, You're inviting jury to speculate, no opportunity to develop context, no way to cross examine Libby on relative importance. What you have now, he attends these on almost daily basis, sometimes he inquires about the info, sometimes he does not. We do recognize distinction on matters that he inquired and did not. We're objecting to those matters that he did not make inquiries about. other than supposition that we can all make that something of that nature was bad. That's not appropriate type of testimony that would support introduction of evidence. We understand that Libby entitled to change his mind and not testify. But unfair to lower bar to ZERO which is what the bar would be now, and relevance is purely speculative. Courts routinely exclusde evidence where relevance is speculative.
Cline Talking about general introduction of this. Your honor permitted articles, because he read them, he was focused on 16 words, these are inferences govt wanted to draw. We want to counter it. We ought to be able to show, overload, inundation
Walton Relative importance is not going to be an issue, and I would hope that no one would defy my on that.
Fitz We heard with TYOI
Walton There was no objection. If there was an objection I would have ruled against it.
Fitz it's put in for the purpose that Libby was overloaded or consumed. There's a difference between jury being overloaded, and experienced National Security Advisor, Jury does not have same baseline. when Libby hears multiple terror plots every day. It'd be hard to cross-examine Libby, I can't say to them "you don't know what LIbby was thinking."
Walton They can't say he was consumed by it. They can ask rhetorically.
Fitz They're getting all the benefit of having said it, there's no witness with state of mind Libby has, they're getting all the upside. It's a bait and switch. Here's how we get past 403, bc he's testifying, but now he's not testifying.
Walton: We've got to take a break. Will be back at 2:30. See you then.
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