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Analysis: Libby's Latest Filing Puts Judith Miller on the Spot
By E&P Staff
Published: May 03, 2006 2:40 PM ET
NEW YORK - There was another significant court filing in the Plame/CIA leak case this week, as lawyers for Lewis "Scooter" Libby requested notes, emails, story drafts and the like from various reporters or their news organizations involved in this matter. E&P studies these massive court filings so you don't have to.
Actually, that's not generally true. More often, we rely on legal journalists and/or bloggers who have followed the case amazingly closely.
This week, we reprint a portion of the lengthy analysis of the latest filing by attorney Christy Hardin Smith at the popular blog, FireDogLake.com, which focuses on possible new perils for former New York Times reporter Judith Miller. Hardin predicts, "if this case goes to trial, it’s going to be an ugly ride for Judy on the stand." We have edited out some parenthetical comments. Much more at the blog.
***
Hardin writes:
On p. 10 (of Monday's filing), we get to the subpoena issued to Judy Miller. And that’s where the sparks begin to fly. Team Libby begins with a summary of the indictment portions wherein Judy figures substantially. By p. 11, we’ve moved on to a catalogue of her every nuanced equivocation….
On p. 12, they argue that Judy Miller’s stated recollections "[are] by no means sufficiently reliable to prove that the conversations [between her and Libby] occurred as the government alleges." So poor Scooter has been forced to ask for every scrap of paper Judy Miller ever touched for an extended period of time, her calendars and anything else that might contain any piece of information about her life. You’ll pardon me if I think this might be considered rather a bit too broad by the court for witness impeachment purposes…
An amusing moment in fn. 2, p. 12, where Scooter signals: Further diva "expletive deleted" will no longer be tolerated, Jude.
"Ms. Miller’s motion states that at this time she has not located any documents responsive to Mr. Libby’s other subpoena requests, but that she has not yet completed her search….Mr. Libby assumes that Ms. Miller will complete her search as expeditiously as possible (and not later than May 16) and bring to his or the Court’s attention any additional responsive documents she may find."
Yowch. The bloom is off the rose, it’s withered on the vine and been stomped on a few times by elephants.
On pp. 13-15, we get to the heart of the arguments on the Miller materials: Team Libby really is hoping to find a convenient scapegoat in her notes or in the notes of some other NYTimes compadre. First, they bring up the fact that Miller had the Wilson’s name and phone number in her reporter’s notebook — without, of course, mentioning that (Nick) Kristof works for the Times as well, and that Judy would have, perhaps, spoken with him to pump him for information prior to meeting with Scooter at the St. Regis? ..
We also learn that Team Libby may have some forensic examination of Judy’s notebooks in mind — "e.g. the color of the ink and the weight of the markings" — in order to determine what may have been going through Judy’s mind at the time of her writing. Well, gee, that sounds fun. It’s scientifically questionable…and this move is going to raise all sorts of expert witness hell, but hey, judge, let’s have some CSI:DC just for kicks.
Team Libby does make a good point regarding the parentheticals (pp. 13-14) — whether they could represent Judy’s own thoughts as opposed to questions raised by Scooter in their conversation. But the way to determine this would be to ask Judy — not by holding her pages up to the light to divine their meaning in the cosmos.
Here’s the thing about requesting everything Judy has in every one of her notebooks. Team Libby is not entitled to Judy’s dry cleaning "to do" list, or her contacts with people on completely unrelated stories, or even her doodles. Team Libby is entitled to discovery of evidence that is material to the preparation of his defense — and nothing else. The judge is going to have to decide where the line between relevant and not is — but I’m betting that Judy’s attorney Bennett has vetted this six ways to Sunday before making any representation to Judge Walton as to relevance.
The last paragraph in the Judy, Judy, Judy section sums up Team Libby’s current strategy toward her: it’s the blame Judy the Blabbermouth strategy. If you can’t pin it on another convenient scapegoat, Judy and her tattered shreds of credibility will have to do.
As a prosecutor, one of the things you have to come to terms with early on in your career is this: you don’t find swans swimming in sewers….Thankfully for Fitz, Judy is not the sole witness in the case.
On pp. 15-24, Team Libby makes their arguments with regard to the subpoena issued to the NYTimes itself, separate and apart from the one issued to Judy Miller. (Who, as we all know, no longer works for the Gray Lady.)
Their first argument hinges on the need to obtain copies of internal notes about interviews done by NYTimes counsel and reporters as part of their clean-up once Judy had testified to the grand jury (and, presumably, in preparation for that testimony and during the whole hold-out period as well). Team Libby wants immediate access to all of those notes and draft articles, without the judge doing an in camera review of the material.
There are all sorts of considerations woven into this argument, not the least of which is a substantial hearsay question — since they would be getting Judy’s words as heard by another person entirely and then written into note form by that other person. Team Libby tries to get around this by making a "business records" argument (fn. 4, p. 16), saying that this is a course of business/contemporaneous record-keeping matter that ought to be discoverable just like meeting minutes or other regular business records are. It’s clever, but I don’t think the judge is going to buy it hook, line and sinker. I’d look for some sort of in camera review of documents by the judge and his clerks before any decision is made on what is or is not discoverable here.
This is really a nightmare scenario for any prosecutor, by the way — to have a witness who has given testimony to the grand jury, especially one as flighty as Judy Miller has been, to then be interviewed by others is generally a horrible thing to have to deal with for trial preparation purposes.
The absolute worst is to have a witness who then goes on to do a flurry of television interviews — every time you speak up, the story changes ever so slightly, and a good trial attorney can magnify that a thousandfold on cross examination for the jury. Especially if new memories surface that were not relayed to the grand jury or, worse, the story gets completely mangled in the telling over time. There are ways to deal with it — including impeaching your own witness up front with the bad news so that you get it out before the jury before defense counsel ever gets there — but it’s never a good thing for trial to have to juggle this sort of thing.
Thankfully, Judy Miller is not the sole witness. We’ve always known she was going to be a big thorn in the side of the entire process — but from Team Libby’s filing, it is obvious that they plan on making that abundantly clear for any jury that hears this case at trial….
Judy Miller handed them her own head on a platter — maybe that was intended, I dunno, that whole intertwined aspen roots turning together nonsense — but if this case goes to trial, it’s going to be an ugly ride for Judy on the stand. That it will come from her own words and her own writings makes it all the more powerful.
By E&P Staff
Published: May 03, 2006 2:40 PM ET
NEW YORK - There was another significant court filing in the Plame/CIA leak case this week, as lawyers for Lewis "Scooter" Libby requested notes, emails, story drafts and the like from various reporters or their news organizations involved in this matter. E&P studies these massive court filings so you don't have to.
Actually, that's not generally true. More often, we rely on legal journalists and/or bloggers who have followed the case amazingly closely.
This week, we reprint a portion of the lengthy analysis of the latest filing by attorney Christy Hardin Smith at the popular blog, FireDogLake.com, which focuses on possible new perils for former New York Times reporter Judith Miller. Hardin predicts, "if this case goes to trial, it’s going to be an ugly ride for Judy on the stand." We have edited out some parenthetical comments. Much more at the blog.
***
Hardin writes:
On p. 10 (of Monday's filing), we get to the subpoena issued to Judy Miller. And that’s where the sparks begin to fly. Team Libby begins with a summary of the indictment portions wherein Judy figures substantially. By p. 11, we’ve moved on to a catalogue of her every nuanced equivocation….
On p. 12, they argue that Judy Miller’s stated recollections "[are] by no means sufficiently reliable to prove that the conversations [between her and Libby] occurred as the government alleges." So poor Scooter has been forced to ask for every scrap of paper Judy Miller ever touched for an extended period of time, her calendars and anything else that might contain any piece of information about her life. You’ll pardon me if I think this might be considered rather a bit too broad by the court for witness impeachment purposes…
An amusing moment in fn. 2, p. 12, where Scooter signals: Further diva "expletive deleted" will no longer be tolerated, Jude.
"Ms. Miller’s motion states that at this time she has not located any documents responsive to Mr. Libby’s other subpoena requests, but that she has not yet completed her search….Mr. Libby assumes that Ms. Miller will complete her search as expeditiously as possible (and not later than May 16) and bring to his or the Court’s attention any additional responsive documents she may find."
Yowch. The bloom is off the rose, it’s withered on the vine and been stomped on a few times by elephants.
On pp. 13-15, we get to the heart of the arguments on the Miller materials: Team Libby really is hoping to find a convenient scapegoat in her notes or in the notes of some other NYTimes compadre. First, they bring up the fact that Miller had the Wilson’s name and phone number in her reporter’s notebook — without, of course, mentioning that (Nick) Kristof works for the Times as well, and that Judy would have, perhaps, spoken with him to pump him for information prior to meeting with Scooter at the St. Regis? ..
We also learn that Team Libby may have some forensic examination of Judy’s notebooks in mind — "e.g. the color of the ink and the weight of the markings" — in order to determine what may have been going through Judy’s mind at the time of her writing. Well, gee, that sounds fun. It’s scientifically questionable…and this move is going to raise all sorts of expert witness hell, but hey, judge, let’s have some CSI:DC just for kicks.
Team Libby does make a good point regarding the parentheticals (pp. 13-14) — whether they could represent Judy’s own thoughts as opposed to questions raised by Scooter in their conversation. But the way to determine this would be to ask Judy — not by holding her pages up to the light to divine their meaning in the cosmos.
Here’s the thing about requesting everything Judy has in every one of her notebooks. Team Libby is not entitled to Judy’s dry cleaning "to do" list, or her contacts with people on completely unrelated stories, or even her doodles. Team Libby is entitled to discovery of evidence that is material to the preparation of his defense — and nothing else. The judge is going to have to decide where the line between relevant and not is — but I’m betting that Judy’s attorney Bennett has vetted this six ways to Sunday before making any representation to Judge Walton as to relevance.
The last paragraph in the Judy, Judy, Judy section sums up Team Libby’s current strategy toward her: it’s the blame Judy the Blabbermouth strategy. If you can’t pin it on another convenient scapegoat, Judy and her tattered shreds of credibility will have to do.
As a prosecutor, one of the things you have to come to terms with early on in your career is this: you don’t find swans swimming in sewers….Thankfully for Fitz, Judy is not the sole witness in the case.
On pp. 15-24, Team Libby makes their arguments with regard to the subpoena issued to the NYTimes itself, separate and apart from the one issued to Judy Miller. (Who, as we all know, no longer works for the Gray Lady.)
Their first argument hinges on the need to obtain copies of internal notes about interviews done by NYTimes counsel and reporters as part of their clean-up once Judy had testified to the grand jury (and, presumably, in preparation for that testimony and during the whole hold-out period as well). Team Libby wants immediate access to all of those notes and draft articles, without the judge doing an in camera review of the material.
There are all sorts of considerations woven into this argument, not the least of which is a substantial hearsay question — since they would be getting Judy’s words as heard by another person entirely and then written into note form by that other person. Team Libby tries to get around this by making a "business records" argument (fn. 4, p. 16), saying that this is a course of business/contemporaneous record-keeping matter that ought to be discoverable just like meeting minutes or other regular business records are. It’s clever, but I don’t think the judge is going to buy it hook, line and sinker. I’d look for some sort of in camera review of documents by the judge and his clerks before any decision is made on what is or is not discoverable here.
This is really a nightmare scenario for any prosecutor, by the way — to have a witness who has given testimony to the grand jury, especially one as flighty as Judy Miller has been, to then be interviewed by others is generally a horrible thing to have to deal with for trial preparation purposes.
The absolute worst is to have a witness who then goes on to do a flurry of television interviews — every time you speak up, the story changes ever so slightly, and a good trial attorney can magnify that a thousandfold on cross examination for the jury. Especially if new memories surface that were not relayed to the grand jury or, worse, the story gets completely mangled in the telling over time. There are ways to deal with it — including impeaching your own witness up front with the bad news so that you get it out before the jury before defense counsel ever gets there — but it’s never a good thing for trial to have to juggle this sort of thing.
Thankfully, Judy Miller is not the sole witness. We’ve always known she was going to be a big thorn in the side of the entire process — but from Team Libby’s filing, it is obvious that they plan on making that abundantly clear for any jury that hears this case at trial….
Judy Miller handed them her own head on a platter — maybe that was intended, I dunno, that whole intertwined aspen roots turning together nonsense — but if this case goes to trial, it’s going to be an ugly ride for Judy on the stand. That it will come from her own words and her own writings makes it all the more powerful.