Thursday, September 21, 2006

Libby Wins A Round In Court Libby Wins A Round In Court

JustOneMinute: Libby Wins A Round In Court posts a link to today's decision on whether the government (i.e. Patrick Fitzgerald) can keep classified information away from Libby's defense attorneys. The prosecution appears to have suggested a three prong test:
Specifically, the government opines that when it asserts a classified information privilege, a classified document (or testimony based on a classified document) should be precluded from use at trial unless the Court determines (1) that the document is relevant; (2) that the document is “helpful to the defense,” and (3) that the defendant’s interest in disclosure of the document outweighs the government’s need to protect the classified information.
This was rejected by the court. My guess is that #3 above was the clincher: the idea that even if the evvidence were determined to be both relevant and helpful to the defense, the government could still withhold it if it determined that its interests were greater. Because this is a criminal trial, that sort of thing won't fly, and the government has the choice of dismissing or diclosing evidence under the controlling evidentiary rules:
If the government is still not satisfied that the classified information is adequately protected at the conclusion of these hearings, the government has the power to preclude entirely the introduction at trial of the classified information. 18 U.S.C. App., § 6(c)(2). While invocation of this option may require dismissal of this case, now, just as during the discovery process, “[t]he burden is the Government’s, not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpublished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government’s possession.”


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