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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF
AMERICA )
)
v. ) CR. NO. 05-394 (RBW)
)
I. LEWIS LIBBY, )
also known as “Scooter Libby,” )
Defendant. )
CONSOLIDATED
OPPOSITION OF DEFENDANT I. LEWIS LIBBY TO
GOVERNMENT’S MOTION IN LIMINE TO PRECLUDE TESTIMONY OF
ANDREA MITCHELL AND TO MOTION OF NON-PARTY ANDREA MITCHELL TO QUASH SUBPOENA IN
PART
Mr. Libby respectfully submits this consolidated opposition to the government’s motion in limine and to Andrea Mitchell’s motion to quash, both of which seek to preclude relevant and powerful evidence.
PRELIMINARY STATEMENT
The defense intends to elicit testimony from Ms. Mitchell to show that she was intensely covering the Wilson story during the relevant time period. Her activities included interviewing Mr. Wilson on television and talking to government officials (including officials at the CIA) about his trip. Based on her focus on the Wilson story, the defense will explore the likelihood that Ms. Mitchell had heard a rumor, prior to July 14, 2003, that Mr. Wilson’s wife worked for the CIA. At a minimum, the defense plans to establish a factual record that the possibility of Ms. Mitchell hearing such a rumor cannot be ruled out. If she testifies that she did not hear — or cannot remember hearing — a rumor about Ms. Wilson’s CIA employment, the defense will then request to impeach her with her October 2003 statement. However, regardless of the ultimate admissibility
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of the October 2003 statement for impeachment purposes, the defense certainly has the right to develop the factual record described above.
Ms. Mitchell’s October 2003 statement also impeaches Tim Russert, who has testified that if Ms. Mitchell had heard something about Ms. Wilson, she would have passed that information on to him. Because Mr. Libby intends to use Ms. Mitchell’s statement to challenge Mr. Russert’ s credibility, the factual scenario here is far different from the cases cited by the government and Ms. Mitchell.
In addition, Ms. Mitchell’s October 2003 statement is admissible as substantive evidence under the residual hearsay exception and the principles set forth in Chambers v. Mississippi, 410 U.S. 284, 302 (1973).
BACKGROUND
The defense wishes to elicit testimony from Ms. Mitchell regarding the possibility that, prior to July 14, 2003, she had heard a rumor that former Ambassador Joseph Wilson’s wife worked at the CIA. The defense contends that it is likely that Ms. Mitchell heard such a rumor, although she may not have learned Ms. Wilson’s name or her actual role at the CIA until she read Robert Novak’s July 14, 2003 column.’
Ms. Mitchell (even more than Mr. Russert or David Gregory) was actively
focused on the Wilson story prior to July 14, 2003. On July 6, she interviewed Mr.
Wilson on Meet the Press, and she made follow-up reports on his trip later in the week.
Cathie Martin has testified that on July 8, CIA spokesperson Bill Harlow told her that
Ms. Mitchell had called him and was working on a story about the sixteen words. Jan.
1 Compare this statement to the NBC News statement issued on August 9, 2004, which denied that Mr. Russert knew “Ms. Plame’ s name and her role at the CIA” before reading Mr. Novak’s column.
2
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25, 2007 AM Tr. at 106. At the time Ms. Mitchell spoke to Mr. Harlow, he knew that Mr. Wilson’s wife worked at the CIA — in fact, he had told Ms. Martin that information. In addition, as chief Foreign Affairs Correspondent for NBC News, Ms. Mitchell closely covered the State Department, where Richard Armitage (who disclosed Ms. Wilson’s identity to two reporters, Bob Woodward and Robert Novak) worked. In October 2003, Ms. Mitchell made a statement that indicates, at the very least, that she was trying to find additional information about Mr. Wilson in the relevant time period.
On October 3, 2003, on the CNBC television program Capitol Report, the following exchange occurred between Ms. Mitchell and Alan Murray (the host of the show):
MURRAY: And the second question is: Do we have any idea how widely known it was in Washington that Joe Wilson’s wife worked for the CIA?
MITCHELL: It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger. So a number of us began to pick up on that. But frankly I wasn’t aware of her actual role at the CIA and the fact that she had a covert role involving weapons of mass destruction, not until Bob Novak wrote it.2
The defense intends to explore this statement with Ms. Mitchell on the
witness stand. The defense believes the statement was accurate when Ms. Mitchell said it, even if she no longer recalls events in the same manner. However, even if Ms. Mitchell had not made this statement, the defense would seek to examine the possibility
2 The actual footage of this exchange, as well as Ms. Mitchell’s subsequent attempts to
explain what she meant on the Imus in the Morning program, were given to
the Court along with the Offer of Proof that the defense submitted on February
8, 2007. See
DX 1972.
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that Ms. Mitchell had learned, prior to July 14, 2003, that Ms. Wilson worked for the CIA.
In addition, Ms. Mitchell’s October 2003 statement — unlike her current position — was made less than
three months after the events in question, and prior to the time when Mr.
Russert, Ms. Mitchell’s boss, began to deny publicly that he had been aware of
Ms. Wilson’s CIA employment prior to July 14, 2003. Ms. Mitchell has
never been asked to explain her October 3, 2003
statement under oath, and examination by defense counsel may yield more nuanced
answers than the flat denials contained in her motion to quash. For example, it
is possible that what Ms. Mitchell said on Capitol Report accurately
reflected her knowledge in October 2003, although she has subsequently forgotten what she knew about Ms. Wilson
and when she learned it.
When Ms. Mitchell is on the witness stand, we wish to explore how
she was intensely focusing on the Wilson matter
during the time period of July 6 through July 14 (although, as promised, we
will not ask her to reveal the identity of her sources). If she denies that it
is possible that she “began to pick up” on the fact that Mr. Wilson’s wife
worked for the CIA prior to July 14, we will move to impeach her with her
October 2003 statement. Thus, the defense has a good faith basis for calling
Ms. Mitchell — to elicit testimony about how she paid significant
attention to the Wilson story and how it is likely that she did in fact her a
rumor that Mr. Wilson’s wife worked for the CIA.
Ms. Mitchell has previously
attempted to explain why she said “it was widely known” that Ms. Wilson worked
at the CIA on at least two appearances on the Imus in the Morning program
(November 10 and 23, 2005). She gave a
variety of explanations, including that she mis spoke and that she was
confused, and even joked that
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she was drunk. See DX 1972.
Ms. Mitchell’s attempts to explain her October 2003 statement to Mr. Imus on
November 23, 2005 make clear that it is
fair to interpret that now-retracted statement to mean that she and others
knew, prior to July 14, that Ms. Wilson worked at the CIA. E.g., id., (“So
clearly back in October of ‘03, I screwed it up.
I was quite surprised to hear about
I~making the October 2003 statementl because it isn’t consistent with anything
in my memory. I can’t find any notes that reflect this, this alleged knowledge,
and so I was muddled on the timeline, that is all I can imagine.”).
Ms. Mitchell may have been motivated
to retract her October 3, 2003 statement because it tends to demonstrate that
Mr. Russert likely knew, prior to July 14, 2003, that Valerie Wilson was
employed by the CIA. Mr. Russert has stated in public and testified in court
that had Ms. Mitchell heard such information prior to July 14, 2003, she would
have shared it with him. This was the practice and pattern in the NBC
Washington Bureau at the time. For example, on February 8, Mr. Russert gave the
following testimony:
Q. Well, based on pattern and practice that existed in
terms of how news teams worked at N.B.C. News, was the expected practice that
if one of the key reporters on the team got important information, that they
would come and report it to the group?
A. Yes.
Q. Okay. And Ms. Mitchell and Mr. Gregory — they
were important members of the Wilson team, correct?
A. They were two of them. February 8, 2007 AM Tr. at 42.
During her November 23, 2003 appearance on the Imus show, Ms. Mitchell
stated that during the time period in question, she talked to Mr. Russert and
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others at NBC about the Wilson
story, although she claims that she did not discuss Mr. Wilson’s wife with Mr.
Russert until after July 14, 2003. See DX 1972. In addition, on
October 29, 2005, Ms. Mitchell stated on television that she expected that if
Mr. Russert had learned that Ms. Wilson worked
for the CIA, he would have told her. Oct. 29, 2005, CNBC, The Tim
Russert Show Tr. at 11 (DX 502). The
defense fully expects Ms. Mitchell to testify
(similar to Mr. Russert) that had she known that Ms. Wilson worked at the
CIA prior to reading Mr. Novak’s column, she would have communicated that information to Mr. Russert.
The defense contends that if Ms. Mitchell had not retracted her
prior statement, great embarassment would have been caused to Mr. Russert and
the NBC television network, particularly because
the indictment against Mr. Libby was based in large part on testimony provided
by Mr. Russert. Accordingly, the defense may also wish to elicit testimony from
Ms. Mitchell regarding her retractions of her October 3, 2003 statement.
Finally, even if Ms. Mitchell’s current position is that her October 2003 statement was mistaken, the defense is nevertheless entitled to conduct further inquiries about it. In particular, the defense should be permitted to probe the possibility Ms. Mitchell may have been making similar, mistaken statements to Mr. Russert prior to July
14, 2003.
ARGUMENT
I. A PARTY MAY IMPEACH ITS OWN WITNESS BY PRIOR INCONSISTENT STATEMENT
The Federal Rules of Evidence leave no doubt that a party may impeach
its own
witness by use of a prior inconsistent statement. Rule 6 13(b) states that
“extrinsic
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evidence of a prior inconsistent
statement” may be admitted for impeachment purposes “if the witness is afforded
an opportunity to explain or deny the same and the opposite party is afforded
an opportunity to interrogate the witness thereon, or the interests of justice
otherwise require.” Rule 607 states: “The credibility of a witness may be
attacked by any party, including the party calling the witness.” Together,
Rules 607 and 6 13(b) permit a party to impeach its own witness by prior
inconsistent statement. E.g., United States v. Sollars, 979
F.2d 1294, 1298 (8th Cir. 1992) (“Under these rules, a party is allowed to
impeach its own witness and may use a prior inconsistent statement to do so.”)
The government does not —
and cannot — dispute this
proposition.
When a party impeaches a witness by
prior inconsistent statement, the statement is presented only for impeachment
purposes and not as substantive evidence of the truth of the matter asserted.3
If there is a risk that the jury will be confused by this distinction,
the proper remedy is a limiting instruction, not preclusion of the testimony. United
States v. Lewis, 693 F.2d 189, 197 n.34 (D.C. Cir. 1982). In its brief,
the government takes one exception to the impeachment rules — that
a “party cannot call a witness for the primary purpose of impeaching that
witness with an otherwise
~ If Mr.
Libby has to impeach Ms. Mitchell, he understands that her prior statement will
come in for impeachment purposes only, not as substantive evidence. One of the
principal cases on which the government relies, United States v. Sebetich, 776
F.2d 412 (3d Cir. 1985), has been distinguished
by the Third Circuit on this ground. In Goodman v. Pennsylvania Turnpike Commission, 293 F.3d 655 (3d Cir.
2002), the Third Circuit noted, “Sebetich does not apply to this case.
Sebetich and his codefendants were trying to admit Sala’ s statements for
substantive purposes under a hearsay exception at the same time that they were
ostensibly proposing to admit it for ‘impeachment’ purposes under Rule 607. It
was obvious that their intent was to place the substance of the statement
before the jury.” Id. at 666-67. In Goodman, where the proponent
of the evidence introduced the testimony for impeachment purposes only, id. at
667, the evidence was properly admitted, id. at 668.
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inadmissible prior statement”
(Gov.’s Mot. at 4) — and seeks to use it to swallow Rules 607 and 6 13(b),
despite the fact that all of the cases cited by the government are easily
distinguishable from the facts and circumstances of Mr. Libby’s case.
II. THE D.C. CIRCUIT’S DICTUM IN JOHNSON
DOES NOT PRECLUDE THE DEFENSE FROM IMPEACHING MS. MITCHELL BY PRIOR
INCONSISTENT STATEMENT
The government and Ms. Mitchell
attempt to use the D.C. Circuit’s dictum in United States v. Johnson, 802
F.2d 1459 (D.C. Cir. 1986), to run roughshod over Mr. Libby’s right to examine
witnesses in his defense. A fair reading of the D.C. Circuit’s limited
pronouncement in Johnson makes clear that the case does not in any way
limit the scope of Mr. Libby’s potential examination of Ms. Mitchell.
In Johnson, witness David
Halmon had implicated the defendant in a signed post-anest statement, but later
testified at a pretrial hearing that the statement was false. Id. at
1463. At trial, the government called Halmon in its rebuttal case. When Halmon
refused to implicate the defendant, the trial court permitted the government to
introduce and publish the post-arrest statement. Id. Although the
defense failed to object to the government’s introduction of the evidence as
impermissible bootstrapping, the D.C. Circuit considered the propriety of the
practice in dictum. The Circuit found “that the prosecution called Halmon not
for any testimony he could be expected to give, but for the sole purpose of
bringing about the admission of a post-anest statement that, as the prosecution
well knew or should have known, was not independently admissible.” Id. at
1466 (emphasis added). The Circuit found this conduct by the government improper
and offered a paragraph of analysis to explain and limit its dictum:
There is
no authority, in the Federal Rules of
Evidence
or elsewhere, suggesting that a party may on
rebuttal
call a witness-who the party knows will not offer
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any
relevant evidence-and then impeach
that witness by introducing, under Fed.R.Evid. 613(b), an earlier, hearsay
statement favorably I~sicI to that
party’s case. Indeed, the case law is to the contrary. Impeachment evidence is
to be used solely for the purpose of impeachment, and it may not be ‘employed
as a mere subterfuge to get before the jury evidence not otherwise admissible.’
This type of bootstrapping is impermissible, and it is an abuse of the rule,
in a criminal case, for the prosecution to call a witness that it [knows will]
not give it useful evidence, just so it I~canI introduce hearsay evidence
against the defendant.
Id. at 1466 (alterations in original) (emphasis added)
(citations omitted) (internal
quotation marks omitted).
Thus, the D.C. Circuit issued the
following limited dictum: (i) the government (ii) may not call a witness
who “it I~knows willi not give it useful evidence” (iii) “not for any testimony
he could be expected to give, but for the sole purpose of bringing about the
admission of a ... statement that, as the prosecution well knew or should
have known, was not independently admissible.” As will be demonstrated below,
none of the three elements of the Johnson dictum apply to Mr. Libby’s
case.
A. Nobody
Knows How Ms. Mitchell Will Testify at Trial
In its brief, the government states
that “it is clear that, if asked about this issue, Ms. Mitchell will testify
that she did not know about Ms. Wilson’s employment at the CIA or possible role
in arranging Ambassador Wilson’s 2002 trip to Niger prior to July 14, 2003.”
(Gov.’s Mot. at 4.) The government acknowledges Ms. Mitchell’s statement to the
contrary on Capital Report on October 3, 2003, a statement that was
captured on video and was Ms. Mitchell’s first public statement on the subject
after the Novak article ran. (Id. at 1-2.) The government bases its
certainty that Ms. Mitchell will testify contrary to her statement on Capital
Report on self-serving public statements of
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Ms. Mitchell, self-serving
statements by Ms. Mitchell’s employers, and the arguments of
Ms. Mitchell’s counsel in a legal
brief. (Id. at 2-4; see also Mitchell’s Mot. at 4 (“Ms.
Mitchell would testify that she did
not know that Ms. Wilson worked for the CIA prior to
July 14 . . .
What neither the government nor Ms.
Mitchell cites to, because it does not exist, is sworn testimony by Ms.
Mitchell, subject to examination by counsel and observation by the jury, about
how she was intensely focused on Wilson story prior to July 14, 2003, and the
possibility that she picked up a rumor about Mr. Wilson’s wife — even
if she has forgotten it now. The lack of a sworn statement by Ms. Wilson is a
crucial factor distinguishing her potential testimony from the testimony in Johnson.
In Johnson, the witness at issue had testified at a pretrial hearing
that he had falsely implicated the defendant in a post-anest statement. Johnson,
802 F.2d at 1463. Because the witness in Johnson was locked in by
his testimony at the hearing, the government knew the answers he would give
when called to testify and intentionally elicited that testimony in order to
impeach him with the contradictory post-arrest statement. This is why the D.C.
Circuit explicitly stated that it is “an abuse of the rule, in a criminal case,
for the prosecution to call a witness that it I~knows willi not give it useful
evidence, just so it I~canI introduce hearsay evidence against the defendant.” Id.
at 1466 (alterations in original).
The Tenth Circuit has spoken
eloquently on the uncertainty of predicting trial testimony:
Appellate
courts are reluctant to find that a party called a witness for an improper
purpose. The reason is simple. Evaluating the purpose of counsel’s decision to
call a witness is akin to pushing a string-neither is easy. . .
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Will the
formality of the courtroom, the oath, and the penalties of perjury change the
witness’ decision? What is the importance of the expected truthful testimony?. . . Any experienced trial attorney has encountered a witness who has
changed his testimony between the final interview and trial. Counsel seldom
knows with certainty what a witness will relate once on the witness stand.
However, an attorney is entitled to assume a witness will testify truthfully.
For these reasons, courts should find a party called a witness for an improper
purpose only where the trial record establishes clearly and unequivocally the
circumstances showing an improper purpose existed.
United States v. Carter, 973
F.2d 1509, 1513 (10th Cir. 1992). Mr. Libby is hopeful that
Ms. Mitchell will testify
truthfully at trial by stating that, given her intense focus on the Wilson
story, it is possible that she learned about Ms. Wilson’s employment at the CIA
prior to July 14, 2003, perhaps because she heard a rumor or learned of a “buzz”
about why Mr. Wilson was selected for his trip to Niger. The defense is calling
her, in part, to elicit that truthful testimony. If Ms. Mitchell testifies
falsely, he will attempt to impeach her with her prior statement, as is his
right. But Johnson simply does not stand for the proposition that a
defendant is required to assume a witness will give harmful testimony, when she
has previously made crucial exculpatory statements. The D.C. Circuit’s dictum
in Johnson is inapplicable to Mr. Libby’s case on the strength of this
distinction alone.
The uncertainty surrounding Ms.
Mitchell’s potential testimony also serves to distinguish three of the four
principal cases from other Circuits on which the government relies. In Sebetich,
the Third Circuit found that “when appellants moved to subpoena ~a
witnessi, they did so with the expectation that he would deny making such
statements to I~other witnessesi. The express purpose for calling I~the
witnessi was thus to impeach him....” Sebetich, 776 F.2d at 428. In United
States v. Morlang, 531 F.2d 183 (4th Cir. 1975), the Fourth Circuit
similarly found: “Wilmoth was called by the
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government as its first witness
despite the fact that it was fully aware that his testimony would tend to
exonerate Morlang from participation in the bribery although damning against
Ballard and Barron as well as Wilmoth himself. The real purpose for calling
Wilmoth was apparently to elicit from him a denial that he had ever had any
conversation with a fellow prisoner in which he implicated Morlang.” Id. at
188. In United States v. Fay, 668 F.2d 375 (8th Cir. 1981), defense counsel made an
offer of proof that a witness would deny a statement before seeking to call
another witness to impeach the first witness with a prior inconsistent
statement. Id. at 379.
The circumstances here could not be
more different. Unlike in the cases cited above, Mr. Libby is not calling Ms.
Mitchell for the sole purpose of impeaching her. Rather, he has an entirely
independent basis for seeking her testimony. The defense will establish how
intensely she was working on the story during the week of July 6, from whom she
was seeking information (e.g., Mr. Harlow), and about what (how Mr. Wilson got
sent). That testimony alone, given by NBC’s lead reporter on the story (who is
known to have strong contacts at the CIA and State Department) will allow the
defense to argue that Ms. Mitchell may well have picked up some “buzz” about
the wife’s employment and passed that along to Mr. Russert. If Ms. Mitchell
denies it is even possible that she could have heard such a rumor, only then
will Mr. Libby seek to impeach her with her statement that it was widely known
before Mr. Novak’s column that Mr. Wilson’s wife worked for the CIA.
Mr. Libby believes Ms. Mitchell may
testify that her statements on Capital Report could have been accurate
at the time she made them. In the event that Ms. Mitchell testifies to the
contrary, Mr. Libby’s right to impeach her should not be
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constrained based on cases in which
the proponent of the evidence knew the witness would testify inconsistently and
put on the witness for the purpose of later impeaching him.
B. The Defense Intends to Call Ms. Mitchell for Other Good-Faith Purposes as Well
The government argues that a “party
cannot call a witness for the primary
purpose of impeaching that witness
with an otherwise inadmissible prior statement.” (Gov.’s Mot. at 4) (emphasis
added). As discussed above, in Johnson, the D.C. Circuit found
misconduct according to a different standard, when the government called its
witness “not for any testimony he could be expected to give, but for the sole
purpose of bringing about the admission of a ... statement
that, as the prosecution well knew or should have known, was not independently
admissible.” Johnson, 802 F.2d at 1466 (emphasis added). The defense
intends to call Ms. Mitchell for a purpose apart from whether it is possible
that she knew that Ms. Wilson worked at the CIA prior to July 14, 2003. She
will also be questioned about her telephone conversation with Mr. Libby on July
8, 2003, and about what she did to cover the Wilson story before July 14, 2003.
Under the law of the D.C. Circuit, Mr. Libby is entitled to call and question
Ms. Mitchell for all relevant purposes, including impeachment if that becomes
necessary.
Consistent with the law in this
Circuit, other circuits have held that, when a witness may give testimony that
is both helpful and harmful to a party, the party may call the witness and
impeach her with prior inconsistent statements if necessary. In United
States v. Eisen, 974
F.2d 246 (2d Cir. 1992), the Second Circuit
distinguished the D.C. Circuit’s dictum in Johnson on this ground,
stating: “Where the Government has called a witness whose corroborating
testimony is instrumental to constructing the
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Government’s case, the Government
has the right to question the witness, and to attempt to impeach him, about
those aspects of his testimony that conflict with the Government’s account of
the same events.” Id. at 262-63. In United States v. Webster, 734
F.2d 1191 (7th Cir. 1984), which the government cites without comment, the
Seventh Circuit affirmed the admission of a prior inconsistent statement
by the government to impeach its own witness. Judge Posner wrote for the panel:
Suppose
the government called an adverse witness that it thought would give evidence
both helpful and harmful to it, but it also thought that the harmful aspect
could be nullified by introducing the witness’s prior inconsistent statement.
As there would be no element of surprise, Professor Graham4 would
forbid the introduction of the prior statements; yet we are at a loss to
understand why the government should be put to the choice between the Scylla of
forgoing impeachment and the Charybdis of not calling at all a witness from
whom it expects to elicit genuinely helpful evidence.
Id. at 1193; United States v. Patterson, 23
F.3d 1239, 1246 (7th Cir. 1994) (“The most that we can say about Taylor as a
witness is that he provided testimony that was both helpful and harmful at the
same time. In such a case the prosecutor is allowed to call the witness and
discredit the harmful testimony with prior inconsistent statements if possible.”).
C. The
Johnson Dictum Has Not Been Applied to Criminal Defendants
The government assumes without support that the dictum in Johnson
applies to criminal defendants as
proponents of evidence, but that is not the law of the
~ In this
passage, the Seventh Circuit specifically rejects the “surprise” evidentiary
theory of Prof. Graham, which the government has cited at footnote 2 of its
brief. For what purpose the government has cited Prof. Graham’s work is
unclear. The government does not argue that it is the law of the D.C. Circuit,
or any jurisdiction, that a party calling a witness must be “surprised” by the
witness’s testimony in order to be permitted to impeach the witness.
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D.C. Circuit. The government cites
no cases within the D.C. Circuit for the proposition that Johnson restricts
the right of a defendant to impeach his own witness by prior inconsistent
statements. As discussed above, Johnson involved an attempt by the
government to impeach its own witness by a prior inconsistent statement. The Johnson
dictum explicitly states that it is “an abuse of the rule, in a criminal
case, for the prosecution to call a witness that it I~knows willi not
give it useful evidence, just so it I~canI introduce hearsay evidence against
the defendant. . .
.“ Johnson, 802 F.2d at 1446 (alteration in original) (emphases
added) (quoting Webster, 734 F.2d at 1192) (internal quotation marks
omitted). Indeed, in each of the five cases from other Circuits cited in Johnson,
the government was the proponent of the testimony in question. Morlang, which
the D.C. Circuit cited in Johnson and on which the government attempts
to rely, explicitly grounds its rule in protection of the defendant’s rights. Morlang,
531 F.2d at 190 (“Foremost among these concepts is the principle that men
should not be allowed to be convicted on the basis of unsworn testimony.”); id.
(“The introduction of such testimony, even where limited to impeachment
necessarily increases the possibility that a defendant may be convicted on the
basis of unsworn evidence....”)
In fact, all but two of the cases
cited in the government’s motion address a government attempt to impeach its
own witness. See United States v. Buffalo, 358 F.3d 519, 525
(8th Cir. 2004) (“The vast majority of cases
on the issue of impeaching one’s own witness with a prior inconsistent
statement speak to the government’s use of the statements to impeach its
witnesses where the statements inculpate the defendant.”). One of the two cases
the government cites which involves the defendant as the proponent of the
evidence is the Third Circuit’s opinion in Sebetich, which as discussed
in footnote
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II.A of this brief, has been
distinguished by the later Third Circuit opinion in Goodman. In addition
as we argue, Sebetich has also been distinguished on its facts in
section II.A of this brief The other case that the government cites applying
the impeachment rule to a defendant is the Eight Circuit’s 1981 decision in Fay,
which has also been distinguished on its facts in section l.A of this brief
Furthermore, the Eighth Circuit’s recent opinion in Buffalo appears to
have limited Fay to the generic proposition that there is a “potential
for abuse in impeaching one’s own witness with prior inconsistent statements.” Id.
at
522. In its detailed opinion in Buffalo,
the Eighth Circuit applies a Rule 403 balancing test as the last step in
determining whether a defendant should have been allowed to impeach his own
witness by prior inconsistent statement.5 The Eight Circuit’s
analysis, which sounds in the same policies as Johnson and Morlang, casts
serious doubt on the government’s attempt to use Eighth Circuit precedent to
argue that Mr. Libby may not impeach Ms. Mitchell by prior inconsistent
statement if necessary:
“When
the prosecution attempts to introduce a prior inconsistent statement to impeach
its own witness, the statement’s likely prejudicial impact often substantially
outweighs its probative value for impeachment purposes because the jury may
ignore the judge’s limiting instructions and consider the ‘impeachment’
testimony for substantive purposes. That risk is multiplied when the statement
offered as impeachment testimony contains the defendant’s alleged admission of
guilt.”
When
the defendant seeks to introduce a prior
inconsistent
statement for impeachment purposes, the
~ In Johnson,
the D.C. Circuit did not apply a Rule 403 analysis as part of its
determination. Instead, the D.C. Circuit chose to examine the intentions of the
party proffering the testimony under its “sole purpose” test. Cf. Buffalo, 358
F.3d at 523-24 (comparing the Eighth Circuit’s Rule 403 analysis with the
“primary purpose” test of several other Circuits).
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dangers
identified above are not implicated. Simply put, the prejudicial impact of the
statement does not endanger the defendant’s liberty by risking a conviction
based on out-of-court statements that are not subject to confrontation by way
of cross-examination.
Id. at 525 (citations
omitted) (quoting United States v. Ince, 21 F.3d 576 (4th
Cir. 1994)). To sum up, Mr. Libby seeks to call Ms. Mitchell to testify on a
variety of
topics, including whether it is
possible that she knew, prior to July 14, 2003, that Ms. Wilson was employed at
the CIA. Mr. Libby expects that when Ms. Mitchell is sworn on the witness
stand, she will testify truthfully, admitting that she may have been aware of
Ms. Wilson’s status. If Ms. Mitchell does not testify truthfully, Mr. Libby may
well have to impeach her with her prior inconsistent statement. Neither the
government nor Ms. Mitchell has cited a single case that says he may not do so on these facts.
III. MS. MITCHELL’S OCTOBER 2003 STATEMENT IS
NECESSARY TO CONTRADICT MR. RUSSERT
The case presents a much different
factual scenario from the ones discussed above because Ms. Mitchell’s October
2003 statement is not only relevant to her expected testimony, but to the
testimony of Mr. Russert. The government called Mr. Russert and elicited
testimony that it was impossible for him to have asked Mr. Libby about Ms.
Wilson because he did not know anything about her until July 14, 2003. Mr.
Russert’s testimony also indicates that the way his news team worked, if Ms.
Mitchell (or Mr. Gregory) had known that Ms. Wilson worked for the CIA, she
would have told Mr. Russert. Thus, whether Ms. Mitchell had heard a rumor that
Ms. Wilson worked for the CIA prior to July 14, 2003 is directly relevant to
J\’lr. Russert’s credibility. It is unfair for the government to make the issue
of when Mr. Russert learned of Ms. Wilson’s identity
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of critical importance in this
case, and then hide behind a cramped view of evidentiary rules to bar the
defense from introducing a contradictory statement by Ms. Mitchell.
IV. APPLICATION OF THE RESIDUAL EXCEPTION
PROVIDED BY RULE 807 IS WARRANTED IN THIS CASE
As noted above, Mr. Libby is
clearly entitled to call Ms. Mitchell to provide testimony useful to the
defense, testimony that does not rely on admission of her October 3, 2003
statements. Only if necessary will Mr. Libby seek to impeach Ms. Mitchell using
those prior statements. Separate and apart from that, Mr. Libby submits that
Ms. Mitchell’s October 3, 2003 statements should be admitted for their truth
under Fed. R. Evid. 807, the residual hearsay exception. The residual exception
afforded by Rule 807 is, undoubtedly, a narrow one. But where, as here, the
conditions necessary to invoke the exception are present, the interests of
justice require that it be applied to ensure a trial reaches a fair result. See
Chambers v. Mississippi, 410 U.S. 284, 302 (1973).6
First, the out of court statements that Mr. Libby seeks to
admit are undoubtedly “evidence of a material fact.” Mr. Russert made clear in
the deposition he gave to Mr. Fitzgerald and in his testimony at trial that the
reason he is so certain he did not ask Mr. Libby about Ms. Wilson’s employment
is because he did not know about her employment at that time. Feb. 7, 2007 P.M.
Tr. at 12, 34-35, 38; Aug. 7, 2004 Russert
6 Rule 807 states, in relevant
part: A statement not specifically covered by Rule 803 or
804 but having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the court determines
that (A) the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts; and (C)
the general purposes of these rules and the interests of justice will best be
served by admission of the statement into evidence.
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Dep. at 15. Evidence that
Mr. Russert did know about Ms. Wilson’s employment would directly
undermine Mr. Russert’ s testimony, and is therefore crucial to Mr. Libby’s
defense. Indeed, even evidence that Mr. Russert had heard a rumor regarding Ms.
Wilson’s employment would be sufficient to cast doubt on Mr. Russert’ s testimony.
As Mr. Russert himself acknowledged, information learned through rumor is a
sufficient basis to ask questions seeking to confirm or deny the rumor. Feb. 7,
2007 P.M. Tr. at 37.
Ms. Mitchell’s October 3, 2003
statements are highly probative on the issue of what Mr. Russert knew and when.
They are, however, highly probative on that issue. Mr. Russert’s own testimony
(and Ms. Mitchell’s public statements) regarding the information flow in the
NBC newsroom make clear that if Ms. Mitchell had known, or heard rumors about
Ms. Wilson’s employment, she would have shared that information with Mr.
Russert. See Feb. 7, 2007 P.M. Tr. at 42:9-18; DX 502 at 11. Moreover,
as noted above, there is every reason to believe that when asked at trial
whether she would have shared information about Ms. Wilson with Mr. Russert,
Ms. Mitchell will acknowledge that to be true.
The bottom line is that if
permitted to admit the evidence in question, the defense will be able to argue
to the jury:
1. that,
contrary to her current position, Ms. Mitchell did in fact possess
information regarding Ms. Wilson’s employment before Mr. Novak’s column;
2. that
Ms. Mitchell would have relayed whatever information she had to Mr. Russert;
and
3. that,
given his acknowledged drive to get the story first, Mr. Russert would have
sought to confirm that information when he was, fortuitously, contacted by Mr.
Libby.
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This argument does not, contrary to
the Court’s concerns, rely on a chain of speculative inference. Rather, it is a
simple and compelling argument that is based on evidence already in the record
and that is crucial to Mr. Libby’s defense.
Second, Rule 807 requires that the evidence in question be “more
probative on the point for which it is offered than any other evidence which
the proponent can procure through reasonable efforts.” Ms. Mitchell made the
October 3, 2003 statements regarding her knowledge of Ms. Wilson’s employment
close in proximity to the events of July 2003, and long before she had any
possible motive to color her recollection of events. As the Court knows, the
defense has sought from Ms. Mitchell and NBC any evidence regarding her
knowledge of Ms. Wilson’s employment at the time and have been told that no
such evidence exists. The prosecution also has no information from that time
period, as Ms. Mitchell declined to be interviewed and was not subpoenaed to
provide testimony. Thus, the public statements Ms. Mitchell made on the Capital
Report are the only means available to the defense to establish that Ms.
Mitchell’s knowledge about Mr. Wilson’s wife was then — regardless
of what she remembers or is willing to testify to now.
Third, Rule 807 requires that the statements being offered
have “circumstantial guarantees of trustworthiness.” In Mr. Libby’s view,
statements Ms. Mitchell made regarding her pre-July 14 knowledge of Ms.
Wilson’s employment less than three months after the fact are significantly
more reliable than what she has to say about that issue now, when a motive to
shade her testimony may be present. What is more, Ms. Mitchell is not an
unavailable declarant, but rather will be a witness at trial and therefore can
be questioned by the prosecution about her October 2003 statements and
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asked to explain them. Both the
D.C. Circuit and other courts have held that where that opportunity for
cross-examination is available, concerns about the trustworthiness of the
statement at the time it was made are lessened. See SEC v. First City
Fin. Corp., 890 F.2d 1215, 1225 (D.C. Cir. 1989) (“Appellants had ample
opportunity to cross-examine Greenberg about his out-of-court statements during
his two depositions to probe for weaknesses. They also could challenge David
Hyman’s preparation of the chronology during Hyman’s deposition. Thus, the
primary rationale for the hearsay rule-the inability to cross-examine the
out-of-court declarant on the veracity of his statement-was at least partially
offset here.”); see also United States v. Valdez-Soto, 31 F.3d
1467, 147 1-72 (9th Cir. 1994) (admitting evidence under residual hearsay
exception when declarant testified at trial); United States v. McPartlin,
595 F.2d 1321, 1350-5 1 (7th Cir. 1979) (“Furthermore the degree of
reliability necessary for admission is greatly reduced where, as here, the
declarant is testifying and is available for cross-examination, thereby
satisfying the central concern of the hearsay rule.”); United States v. Leslie,
542 F.2d 285, 290 (5th Cir. 1976)
(“We agree with Judge Learned Hand’s observation that when the jury decides the
truth is not what the witness says now but what he said before, they are still
deciding from what they see and hear in court.”).
Finally, and perhaps most importantly, there is no doubt that
here, “the interests of justice will best be served by admission of I~Ms.
Mitchell’ SI statement into evidence.” Important as adherence to the hearsay
rules are, the Supreme Court has admonished that those rules must yield where
necessary to ensure a defendant’s constitutional right to a fair trial and to
present a complete defense is protected. That principle was made clear in Chambers
v. Mississippi, where the Supreme Court explained
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that “the hearsay rule may not be
applied mechanistically to defeat the ends of justice,” 410 U.S. at 302, and
recently affirmed in Holmes v. South
Carolina, 126 5. Ct. 1727 (2006). The
defense recognizes and appreciates that the residual exception is not to be
invoked lightly. But we submit that where, as here, the evidence in question is
so relevant to a central and perhaps outcome determinative issue in a criminal
case, the application of Rule 807, and the teachings of the Chambers case,
are plainly warranted.
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CONCLUSION
For the foregoing reasons, I. Lewis
Libby respectfully requests that the Court deny the government’s motion in limine and Ms. Mitchell’s motion to
quash.
Dated: February 9, 2007
Respectfully submitted,
Theodore
V. Wells, Jr.
(DC Bar
No. 468934)
James L.
Brochin
(DC Bar
No. 455456)
Paul,
Weiss, Rifkind, Wharton &
Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Tel: (212) 373-3089
Fax: (212) 373-2217
William H.
Jeffress, Jr.
(DC Bar
No. 041152)
Alex J.
Bourelly
(DC Bar No. 441422)
Baker Botts LLP
1299 Pennsylvania Avenue, NW
Washington,
DC 20004
Tel: (202) 639-7751
Fax: (202) 585-1087
Is’
John D.
Cline
(D.C. Bar
No. 403824)
Jones Day
555 California
Street, 26th Floor
San
Francisco, CA 94104
Tel: (415) 626-3939
Fax: (415) 875-5700
Is’
/s’
23