Reply #39: Here's a bit from the May 5th transcript

[Patsy Stone]

Wells says they're going to call Rove. It's good reading, but it's a bit long.

MR. WELLS: If they don't call him, we're calling him. With respect to Mr. Rove, we believe there is no exception in the case law that says Mr. Libby's discovery rights are diluted because the government has an ongoing investigation. The government controls the timing of its indictment. It could have waited until it finished the whole thing. Just because the government says there is a continuing investigation, it cannot hold back on discovery materials.

THE COURT: I guess it depends upon, and I assume that Mr. Fitzgerald would not disagree with that but, I assume, would take the position that once the investigation is complete which I would assume would be sometime in the foreseeable future, that then maybe the landscape changes. And we're far off from the trial at this point. So it seems to me as long as it is turned over sufficiently an advance of the trial so that it can be used that that would be adequate but I don't know if you agree with what I just said.

MR. FITZGERALD: I would disagree in the following respect. We are not withholding evidence or discovery on the grounds that we think that Rule 16 has a continuing investigation exception that dilutes his rights. Our point is much of what they're asking for is not Rule 16 material. Rule 16, as Your Honor has found, is material to the preparation of the case in chief. If a witness is not being called by the government in the case in chief and isn't part of the substantive case and doesn't have, doesn't shed light on whether Mr. Libby lied about his conversations in the grand jury, that is not material to the preparation. Sometimes, often in this case, we've taken material that's not discoverable in the benefit of the doubt and given it to the defendant.

THE COURT: But what if a witness is going to be called, you know ahead of time based upon what Mr. Wells just said regarding Mr. Rove, you know that the defense intends to call a witness. The government has information about that witness and there is clear case authority that says that if that witness then testifies and the government is able to then catch him in a lie, knowing full well that they have this information at their disposal, that that is a problem as it relates to Rule 16. For example, I mean if you had, you know that he's going to call Mr. Rove to say X and you have information that would indicate that actually Mr. Rove previously said something that was Y, and then if he testifies, you catch him in a trick on cross-examination and discredit his credibility, the law says that they have a right to know about that so that they don't, you know, step in that mine field.

MR. FITZGERALD: Let me just be clear that whatever I say in my remarks, I'm not talking about Mr. Rove one way or the other.

THE COURT: I understand. I only use that as example because he did.

MR. FITZGERALD: Okay. If the defense is calling a witness and, with all due respect, he's not bound to call a witness so at a pretrial discovery phase defendants often decide to call lots of witnesses that don't appear. My understanding is that under the law, 3500, Jencks and Giglio, we don't have obligations to turn over materials pertaining to defense witnesses and so my point is –

THE COURT: I have to go back and look at this case but I just looked at a case before I came out on the bench I think, and it is a case out of this circuit. I have to find it, where Judge Sentelle said something I believe totally different than that. I think what he said in that case, if my memory is correct, it was, in fact, a witness that the government knew about, having information on, did not reveal that information to the defense. The defense called the witness and then the government used that adverse information against him on cross examination, and my recollection is Judge Sentelle said that was a Rule 16 violation. I've got to go back and look at the case. I know it was cited in the reply. Does the defense have the name of that case? I know you cited it in your reply. It was not Lloyd because it was a new case I think. I think it is the U.S. versus Marshall which is 132 F.3rd at page 63, specifically page 67 and 68. I'm going to give the reporter a break. We'll take a 10-minute recess.

(Recess from 2:52 p.m.,to 3:02 p.m.)

THE COURT: You are good, Mr. Wells, because you actually got me to take a position that's totally incorrect. The witness in Marshall was actually a government witness, not a defense witness. There are cases and I looked at those last night where the courts have specifically held that the information that you are requesting that would help you in reference to a witness that you intend to call is not discoverable under Rule 16.