1 Boring Old Man

In Libby Trial: Motion Opens Door For No Libby Testimony, Christie Hardin Smith reports on a new motion [from last night] from the Libby Lawyers:

The key points are as follows [reformatted]:

• Team Libby wants Judge Walton to reconsider them being allowed to introduce circumstantial and other evidence regarding Libby’s memory, whether or not Libby takes the stand;
• that exclusion of such evidence would violate his Fifth Amendment and Sixth Amendment rights to a fair trial and to not incriminate himself, among other arguments;
• that this evidence satisfies the requirements of Rule 401 of the Rules of Evidence defining relevance as "means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

[see also: Libby May Not Testify on Talk Left]

I expect that he’s right to think that testifying is self-incrimination [taking "the fifth" by not taking the stand]. As I was speculating myself, "What could he say?" So his only defense is to defend the loss of memory myth [a loss of memory that would be in the range of Global Amnesia]. As absurd as this defense is, it looks like his only shot to me.

I say let him have it. It cuts down on the number of appeals. But what I hope Judge Walton does is say he’ll only consider allowing the memory experts if Libby testifies. That seems justified to me. How can you bolster a defense argument if the defendant hasn’t even mounted the defense?

This is the homework defense raised to a creative level of absurdity.