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Libby judge rejects prosecution effort to limit classified evidence

[JURIST] US District Judge Reggie Walton ruled [opinion, PDF] Monday that special prosecutor Patrick Fitzgerald's proposal to limit what classified evidence I. Lewis "Scooter" Libby [defense website; JURIST news archive] can present to the jury in the CIA leak trial [JURIST news archive] goes too far. Libby, charged [indictment, PDF; JURIST report] with obstruction of justice and perjury in connection with Fitzgerald's investigation into the leak of the identity of former CIA operative Valerie Plame [JURIST news archive], is seeking to present evidence to the jury supporting his contention that he innocently mis-remembered facts and did not intentionally misrepresent his knowledge of the leak due to the heavy volume of his work as chief of staff for Vice President Dick Cheney.

Given the classified nature of documents Libby hopes to rely on in his defense, Walton has been holding hearings to determine what evidence can be presented to the jury under the Classified Information Procedures Act [text] and whether any non-classified evidence can be substituted for classified evidence. Walton acknowledged Monday that the "government has an important interest in protecting the classified information at issue from disclosure," but stressed that this interest must be balanced with "the defendant's Sixth Amendment right to present his defense." He concluded:

...the government's proposed substitutions, as currently proposed, will not provide the defendant with substantially the same ability to make his defense. The substitutions exclude in their entirety at least eleven events which collectively added significantly to the qualitative component of his defense. To credibly present his defense, the defendant must be provided the opportunity to bring to the jury's attention, though testimony or otherwise, the magnitude of his mental occupation with pressing matters involving national security. And this can only be accomplished if he can describe to the jury the activities that consumed his time and attention, and why those activities were of such importance to him. The proposed substitutions, which would exclude extremely significant items of classified information, goes too far and their collective omission would prevent the defendant from being able to show the jury the true nature of his defense. Thus, to approve the substitutions now proposed by the government would amount to a grave error of constitutional proportion.

This ruling does not give the defendant "free reign" over his testimony, Collins, 603 F. Supp. at 304; rather, it merely allows the defendant to testify and present evidence on those matters that this Court has deemed relevant, admissible, and whose omission would impair the defendant’s ability to present a meaningful defense. Nor should this ruling be interpreted as a proscription against the exclusion of any item of classified information deemed relevant and admissible in its entirety. This is not a numbers game where there must be a one-for-one substitution; rather, as discussed above, a balancing must be conducted.
AP has more.

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