>>That almost assuredly was weighed by the judge in some of the decisions he made earlier in the case.<<
It shouldn't have been.
If the judge doesn't really think this is an easy ground for appeal, he's an idiot. How in the world can he instruct the jury to ignore the fact that the defendant didn't testify in his own behalf when he's not doing that?
I didn't read that he instructed the jury to take note of the lack of testimony. I read (in admittedly garbled syntax) that the judge made these points to counsel out of the presence of the jury.
Counsel misled the judge. He can't make the point about the lack of testimony before the jury, but he absolutely can weigh it when making his OWN discretionary calls on procedural and evidentiary issues. Looks like he did.
If the Appellate Court agrees with him, then he was right.
The Appellate Court probably will agree with him. After all, what was put into EVIDENCE that Libby was busy with national defense matters? That was supposed to be presented by Libby in testimony. Well, defense pulled the rug out and didn't put Libby up there, so they can't make the argument to the jury based on evidence they didn't present. Sounds like the judge got it right, evidence-wise. The fact that he certainly took a great deal of malicious delight in doing so can only be expected - I would have if counsel had screwed with me like that. So long as the judge is right on the law, the smile and warm glow he gets inside reminding counsel who is in command in his courtroom is not a legal matter.
Sure, defense can argue on appeal that it's all unfair. But how are they going to win? What EVIDENCE did they present that Libby was overwhelmed with national defense matters? He COULD HAVE presented that evidence, on direct, but that would have subjected him to cross. Counsel told the judge Libby WOULD present evidence on direct, but then shied away from the cross (I suspect to protect higher-ups, I suspect because the fix is already in on the Libby pardon, so losing doesn't ultimately matter but keeping higher-ups from being subject to cross does). The evidence wasn't presented. Without the foundational evidence, counsel cannot make the argument to the jury. The judge said so, and he was well within his power to do so. That the judge did so angrily and with a good deal of malicious delight? Well, what do you EXPECT when you screw with a judge? He's got the power, and he will jump all over your head and go cock-a-doodle-do if you forget it. Like here.
Of course my comments are all speculation from a garbled news report, so none of this amounts to more than armchair commentary.