â€there just don’t seem to be that many outstanding issuesâ€

I’m not sure how you can be confident in writing that. As you point out, there are 5 exhibits that are still in dispute. Who knows, maybe the bulk of the case rests upon those exhibits, and maybe Walton will rule in Libby’s favor. Five seems like a healthy number of diputes to me.

Libby is indicted for Lying/Perjury/Obstruction.

Did he or didn’t he is the legal issue. The Judge seems to know this.

Trying to read secondary/tertiary issues into it is wishful thinking.

I think Libby chances of being pardoned is only about half and half, if he is convicted. Indeed maybe he would have ony 1/3 a chance. Still that has to be a secondary strategy.

President Bush will not want to appear to be â€covering up.â€

Libby’s primary defense strategy is to win the trial, and maintain his License to practice Law.

Here is a list from Libby’s 9-22 filing of the categories of Wilson/Niger documents: 1.CIA reports regarding Niger and Wilson’s trip, many of them faxed to Libby’s attention in the OVP on June 9; 2.OVP memoranda analyzing the reports and drafts of what became Tenet’s July 11 public statement; 3. certain of Libby’s notes reflecting conversations with other government officials (i.e. Cheney and perhaps others) about hwo to respond to Wilson’s criticism; 4. notes and emails by or to CIA employees including Grenier and Schmall; 5. the INR memo; 6. Harlow’s notes; 7. Hadley’s notes; 8. certain other documents (hmm).

I think it’s possible that the first five Fitzgerald mentions as a group are Libby’s notes. Alternately, they may be from category 1 or 2.

I also suspect that Exhibit 242, which has handwriting on it whose author Fitzgerald has now identified to the defense, is part of the CIA-to-OVP fax.

I tend to agree that greymail looks less likely. But it is worth noting that there is still a lot of dispute, which the judge is going to have to resolve, with regard to most of the nine national security matters Libby wants to introduce. But I still take heart from that footnote in Walton’s memo opinion or whatever back in March.

For those few of us keeping track, things get busy next week. Next Thursday there is a hearing on the memory expert Libby proposes to use. That day also motions in limine regarding evidence the parties want excluded and so on are due – do we get to see these? Fitzgerald is also proposing to offer objections on the CIPA stuff on Monday, and then have a hearing on all that stuff on October 30 or November 6, after which presumably Walton rules and then the government’s proposed substitutions, which Fitzgerald says they’re working on in the meanwhile, get considered.

Finally, with regard to all the unclassified evidence, I assume this is all publicly available at some point, right? I am envisioning a Plameology reunion/nerdathon in the evidence room (or whatever) in DC.

Any ideas as to what the â€dot†chart represents?

The dot chart is, I believe, the vaunted PowerPoint presentation Libby’s defense is going to put on, apparently to narrativize Libby’s memory defense with snazzy graphics depicting how important all this national security stuff Libby was dealing with was and how unimportant the Plame info was.

The memory expert has an interesting website, psychology lab at UCLA, and authorship. Some of the phenomena which interest him involve questions about continuity of recall, suppressed memory, Alexandrine-Quartet-like views of what each grandjurymember thinks a witness is saying.
Trial prep of witnesses is the most venal kind of preprogramming; it’s not â€painâ€, call it â€discomfortâ€. Somehow, though, experts are mainstays in jurisprudence.

Dr. Bjork seems to have some interesting papers; if I have time, might be worthwhile finding them. Although totally separate from his c.v. titles as published on Jeralyn’s site, the thought occurred that he might be an interesting person to ask about the new permissions to avoid Geneva CA-3 applicability in the MCA law for which the president currently is writing the implementation as an executive order. If I were helping Fitzgerald, I might ask permission to direct the expert witness to evaluate some of Judy Miller’s prosody, talk about extraordinary memory.

Dots
Some folks use color-coded adhesive dots to categorize evidence, kind of like the color coding in ew’s chart of the preservation of evidence during the few days between the attorney general’s notification to Card and the actual written order to save all evidence.
With respect to the Libby case and graymail, there is much wrangling about redactions approved and still under negotiation, as the Fitzgerald documentation status report October 18 from Jeff shows. A black dot could mean the evidence is originally from Defense; a black and an orange could mean SP agrees to Defense redactions; a black, orange, and red dot on an exhibit could mean SP has an alternative set of redactions proffered. A gold dot could mean Walton has to decide about the exhibit’s the graymail effect and germaneness at one of the scheduled final CIPA hearings. Cases with hundreds of exhibits comprise a virtual library, and color coding spines of each phase helps keep current on what is outstanding and settled. In Fitzgerald’s status report, ibid., I see they are disputing five exhibits; one exhibit Libby is using for historical purposes but it serves a dual purpose in the foggy memory defense. And five exhibits are approved by both sides as redacted 57, 58, 173, 174, 242. Too much is missing on the web to review the schema exactly now, given my time constraints and the sketchiness of the availability. Some DoJ sites seem to read the link but do not download; and Fitzgerald’s site now needs real broadband to load. We are on hyperISDN here, but less than a cable modem affords.

I don’t think the â€dot†chart refers to the categorization of different pieces of evidence. Fitz is next to perfect with punctuation. I think he’s poking fun at the â€dot†chart by putting â€dot†in quotation marks. My instinct when I first read it was similar to Jeff’s idea–that it is something prepared by the defense. The defense is going to try to show how confusing and challenging life is in the VP’s office. I think the defense is going to assign a dot to about two thousand different events in Libby’s life over the course of the day, in a feeble attempt to make jurors feel sorry for how hard Libby had to work just to keep up with all the data he had to manage. Fitz adds a little snark by saying that he’ll reserve judgment on whether he accepts the â€dot†chart until the defense finishes creating it.

Thanks for alerting us to this filing, Jeff and EW.

I view this status report from a slightly different perspective, I think — namely, that this filing is addressing those classified items in dispute that have the best chance of being resolved by the opposing parties without the need for the Judge to intervene. As Jeff notes, seven of the nine overriding national security matters/topics that Libby says he was consumed with are still very much in dispute, and must be resolved by the Judge in his CIPA Sec. 6(a) ruling (which now looks to have been postponed until early November sometime, due to the ongoing negotiations about the Wilson/Niger topic among others). And because each of those seven topics is very much entangled with highly classified (PDB-level) information, the graymail threat they present is still very significant.

The items which are noted as unclassified in this filing were classified until the work on these matters by the intelligence community in the last few weeks. Thus note, particularly, that there is an additional paragraph that is redacted in the INR Memo that we all have access to, which is just now being cleared for release to the public by the IC… I wonder which media outlet will beat the others to the punch in getting their hands on that new paragraph…

It appears from this filing that Judge Walton did his best to force good faith negotiations during the four Sec. 6(a) hearings (where the intelligence community representatives were also present at his request), to try to resolve as many disputes as possible to the satisfaction of both parties. In short, I think Judge Walton is kind of merging the Sec. 6(a) process with the Sec. 6(c) process [by getting proposed redactions and substitutions out of the IC now not later] in an effort to be as efficient and proactive as possible (and to reduce as much as he can the intractable disputes he is going to have to resolve with his written ruling).

What a battle, though – an awful lot of work is going on behind the scenes on this issue.

This is too goddamned funny. The parties jointly filed a motion asking for more time to file their motions in limine. They wanted the motions due November 9 (instead of October 26), with responses due December 1 and replies to those due December 8. Judge Walton refused but agreed to modify the deadlines a little: motions are due October 30, responses November 13 and replies by noon on November 17. The rationale? From the key footnote 1:

As the parties are aware, Judge Walton will be on vacation in Jamaica beginning November 18, 2006 and it is particularly important for the expeditious resolution of these motions that Judge Walton have something to work on while relaxing on the beach.

hauks

To this day I have sand from Ft. Lauderdale in my copy of Joyce’s Ulysses. I was assigned it for a class starting the Thursday before spring break, to be done the Tuesday after spring break.

Didn’t get a whole lot of it read.

Well the only dots I found in Ulysses are in the Hades chapter, as Bloom and company ride in the carriage on the way to Paddy Dignam’s gravesite:

– We’re stopped.

– Where are we?

Mr Bloom put his head out of the window.

– The grand canal, he said.

Gasworks. Whooping cough they say it cures. Good job Milly never got it. Poor children! Doubles them up black and blue in convulsions. Shame really. Got off lightly with illness compared. Only measles. Flaxseed tea. Scarlatina, influenza epidemics. Canvassing for death. Don’t miss this chance. Dogs’ home over there. Poor old Athos! Be good to Athos, Leopold, is my last wish. Thy will be done. We obey them in the grave. A dying scrawl. He took it to heart, pined away. Quiet brute. Old men’s dogs usually are.

A raindrop spat on his hat. He drew back and saw an instant of shower spray dots over the grey flags. Apart. Curious. Like through a colander. I thought it would. My boots were creaking I remember now.

– The weather is changing, he said quietly.

Plame tie in?

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