When reading last night’s post about separating races in jail and race riots, please don’t snap back at me until you click the links — especially the one for my previous post criticizing last year’s editorial. If you didn’t read that post already, please do so now. I make the case more completely there than my Treo allows me to do now.

(By guest blogger See-Dubya)

While our host settles into his palatial new digs, I thought I would throw up a post about prosecutors’ responsibility. Over at NRO, Byron York is covering the Scooter Libby/Valerie Plame case, and he’s discovered that prosecutor Patrick Fitzgerald refuses to disclose some information that might help out Libby’s case. York links to a Newsweek piece which announces that Fitzgerald has found support for the claim that Plame was covert. Well, whoopee. I suppose we’ll get to see this proof? Not according to York:

Fitzgerald refused to say whether he knew if Plame had been an undercover agent during the five years preceding her exposure. Referring to a 1963 Supreme Court decision in Brady v. Maryland, which requires prosecutors to turn over evidence that might point toward the defendant’s innocence, Fitzgerald wrote, “We do not agree that if there were any documents indicating that Ms. Wilson did not act in an undercover capacity or did not act covertly in the five years prior to July 2003 (which we neither confirm nor deny) that any such documents would constitute Brady material in a case where Mr. Libby is not charged with a violation of statutes prohibiting the disclosure of classified information.”

Sloppy writing, Fitz. Do you “neither confirm nor deny” the fact that Plame was not covert, or that you have documents that indicate that fact? There are an awful lot of negatives and subjunctives in that sentence, but as I read it, Fitzgerald is saying “even if we had evidence that Plame was NOT a covert agent, we would not be required by Brady to turn it over to the defense, because Libby isn’t charged with leaking secrets.”

Well, I disagree. Libby is charged with making false statements under oath , an element of which is materiality. It has to matter. And in fact in Libby’s indictment, Fitzgerald listed whether or not Libby knew whether Plame’s status was classified as a matter material to the investigation–actually on several of the counts. Plame’s classified status goes to the materiality of Libby’s statement, and therefore may be exculpatory. Therefore the prosecution ought to turn over what it has about Plame’s status. If Fitz wants to claim that releasing the evidence about Plame would somehow compromise national security, I’d be sympathetic, but I don’t think he can hide behind Brady.

Furthermore…
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