[Guest post by DRJ]

This is an open thread for tonight’s Vice Presidential debate at Washington University in St. Louis, MO. The debate begins at 9:00 PM EST and lasts for 90 minutes. It covers foreign and domestic policy.

Todd Zywicki of the Volokh Conspiracy has been interviewed by Gwen Ifill and finds her “eminently fair and well-prepared.”

Meanwhile, Jim Treacher offers a different perspective.

UPDATE: Don’t miss the official Iowahawk Ifill ethics investigation.

— DRJ

UPDATE BY PATTERICO: I am going to be on the radio with a bunch of left-leaning folks after the debate. It’s the “Mike Malloy” show, which is nationally syndicated. Details here, including a number you can call to ask questions. I’ll be in the belly of the beast, so I can use all the support I can get.

Seems like it, if the Politico’s Mike Allen has it right:

Sarah Palin plans to go on the attack in tonight’s debate, hitting Joe Biden for what she will call his foreign policy blunders and penchant for adopting liberal positions on taxes and other issues, according to campaign officials involved in prepping her for tonight’s showdown.

***

By contrast, Biden plans what an aide calls “a just-the-facts, prosecutorial approach laying out the case against McCain and defending Obama.” The aide said Biden will be “keeping the eye on the target, which is McCain.”

In other words, Biden’s strategy is to do the job a vice-presidential nominee is supposed to do, while Palin wants to attack her counterpart, rather than Obama.  She — and the McCain campaign — would probably do better to use Biden’s words to attack Obama, as ABC’s Jake Tapper thinks may happen.

Of course, the strategy will not matter much if Palin turns in another lackluster performance.  There’s plenty of speculation about the expectations as to both Palin and Biden.  However, much of that speculation does not take into account the general rules of modern presidential debates, as explained by former McCain consultant Mike Murphy:

Good debate prep is designed to build up, not tear down, the candidate’s confidence. The first trick is to practice with a stand-in who has memorized the opposing candidate’s likely answers. This is far easier than it sounds. One of the best-kept secrets of politics is that there are only about 20 “typical” questions. Odds are that one’s esteemed opponent has publicly answered every imaginable policy question by the time the debate finally occurs. It is vital that your candidate not hear your opponent’s answers for the first time onstage, since that will often lead to panic if a candidate feels the opponent’s answer is far better than his or her own. Hmmm. Great answer. I’ve got nothing like that. I’m a loser. I’m going to lose this debate. In high school, Belinda would have wanted to go to the prom with him, not me. Anger. MUST … ATTACK … NOW!!! At that point something very bad usually happens.

A lot of debate prep is given over to mastering another basic rule: never make the rookie’s mistake of actually trying to answer the question you are asked. Candidates are told instead to quickly “pivot” into their central campaign message whenever possible.

NRO’s Byron York has thoughts relevant to the first factor:

By the way, word is that Randy Scheunemann, McCain’s top foreign-policy adviser, played Biden in Palin’s debate practice.  Perhaps that’s a good choice.  But you have to wonder whether a Republican senator who has listened to Biden blow hard for, say, the last 20 years, might not have a better feel for what he will say.  We’ll see.

There is also the issue of whether — or how far — compromised moderator Gwen Ifill will stray from those 20 “typical” questions.

As for the second factor, both Patterico and I have noted that Palin has been bad at giving the sort of BS non-answers that are second nature to Biden — sounding good, even when they are not.  Perhaps Palin will be more comfortable in a debate environment, having been encouraged to be aggressive.  Or perhaps she will do as poorly as she has in the MSM interviews.  To invoke the journo cliche, time will tell — and rather soon.

(h/t Memeorandum.)

[Posted by WLS]

[Since this is a post relating to prosecutorial ethics, I just want to make two things very, very clear. First: I didn’t write this post. Second: my personal view on exculpatory evidence is that it must be immediately disclosed. — Patterico]

There is news this morning that the federal judge presiding over the Ted Stevens corruption trial has suspended proceedings for the day to consider a defense motion for mistrial based on the failure by prosecutors until late yesterday to turn over to the defense FBI interviews of the key prosecution witness which contain statements by the witness that are favorable to Stevens. 

Before there is too much hand-wringing over the issue, you should be aware of the legal standards that apply, as well as the likely remedies the court can fashion — and dismissing the indictment is not one of them.

First, pursuant to 18 USC Sec. 3500, the government is not required to turn over statements made by its witnesses until that witness has testified on direct examination:

“… no statement or report in the possession of the United States which was made by a Government witness … shall be subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.”

This is a statute passed by Congress, and it was intended to deal with the problem of intimidation of government witnesses in criminal cases.  A judge does not have the legal authority to override the statute and order the prosecutors to turn statements over earlier.   

As a matter of practice, most federal prosecutors will turn over witness statements in advance of trial — usually 7 days — because strict adherence to the statute generally leaves the defendant with a legitimate claim that they need time to investigate the witness’s statement in preparing their defense.  The court will almost always grant a short continuance upon such a motion if statements are turned over only after the witness is on the stand, and that seems to be what happened in the Stevens case.

This rule is somewhat in tension with the ethical obligations of prosecutors to turn over to the defense any evidence that is favorable to the defense, even if that evidence is contained in a witness’s statement which it can otherwise withhold.   But this obligation is the product of case law (the famous Brady v. Maryland case), and there are no applicable timing requirements.  The precise legal formulation of the obligation requires that for there to be a violation warranting reversal, the withholding of the favorable evidence must actually prejudice the defendant in the outcome of the trial. 

The obligation is to turn this information over while it is still useful to the defense.  Generally, favorable evidence that is turned over during the course of the trial is still “useful” to the defense.  There usually is no Brady violation because the defendant is not prejudiced by the withholding of the evidence if he still has the opportunity to make use of it during the trial. 

So, the government was legally entitled to withhold the FBI statements of its key witness, even if the statements included evidence favorable to the defense, so long as those statements were produced before cross-examination took place and the defense had the opportunity to make use of them.

Now, the remedy that the Court has available to it is not so much to “punish” the prosecutors since they have complied with both the statute and their Brady obligation.  Rather, the remedy the court must consider is to deal with the question of whether the defendant is entitled to a delay in the proceedings so as to make effective use of the new information. 

The Court can “scold” the prosecutors all he wants — and they might very well have violated a promise they made to turn over the FBI statements earlier than yesterday, and that is why he is angry with them — but he really doesn’t have a legal basis to sanction them for misconduct.  The most he can do is protect the defendant’s right to a fair trial by granting a short continuance at the defendant’s request so they can investigate what it is the witness has said in his statements to the FBI.

UPDATE:  The judge has denied the motion to dismiss the indictment, and indicated that he would deny the motion for mistrial, but has set a hearing for Monday morning to determine if  Sen. Stevens needs additional time to prepare to cross-examine the gov’t witness.

— WLS (and not Patterico)

Update x2:  While this is an extremely esoteric subject, there is a significant reason in federal criminal law for not wanting Brady material to fall under the rubric of “discovery,” and to fight to preserve the distinction between discovery obligations under Rule 16, and ethical/legal obligations to produce favorable evidence pursuant to Brady. 

The Court has inherent authority to police its docket and to punish the government for abusive discovery practices such as withholding evidence it has been ordered to produce under Rule 16.  The Court can sanction the government for such practices even in the absence of prejudice to the defendant if the Gov’t conduct is sufficiently egregious, and such sanctions can include the dismissal of the case. 

But the obligation to turn over evidence favorable to the defense is not an obligation that arises under Rule 16 (federal discovery rules), so the Court cannot “order” the production of favorable evidence pursuant to Rule 16.  The obligation to turn over such evidence is independent of discovery obligations.  The failure to produce such evidence would not be a violation of Rule 16, so the Court would lack the authority to sanction the government for abusive discovery practices by ordering dismissal of the case.     

Rather, longstanding case law from the Supreme Court establishes that the failure to produce evidence favorable to the defense is reviewed for actual prejudice — is it likely that the outcome of the case would have been different if the evidence had been timely produced to the defense?  If the answer is “no” then the error is harmless and the conviction stands.  Failure to produce Brady material is not a sanctionable offense.

But that is not to say that the Judge cannot report the prosecutor to the approrpriate state bar organization for unethical behavior.  That’s another can of worms entirely.

[Guest post by DRJ]

I’m looking forward to tonight’s VP debate so I browsed the internet searching for a variety of opinions on what might happen. I expected to find a range of serious and lighthearted opinions but I did not expect to find psychic predictions at a serious political website like the Politico:

“Well-known psychic Elizabeth Joyce has doubts there will be an election this November. Her instincts tell her that come next week, there might be “rioting in the streets and martial law,” and that President Bush will henceforth carry out his term indefinitely.

But that’s next week. Tonight, there’s a vice presidential debate. And Joyce’s predicted outcome runs closer to conventional wisdom on the much-anticipated matchup between Sarah Palin and Joe Biden. She believes that the debate will ultimately go a long way in determining the next president, and that Biden will take the day so long as he doesn’t push her too much.

Joyce, whose website claims she was “born with the authentic gift of psychic ability,” was one of a handful of prominent psychics Politico surveyed to get a better “sense” of how the Palin-Biden matchup might shake out. According to their occult minds, Biden has the edge and, ominously, the moon and stars are not aligned in Palin’s favor.”

Want to hear more? You can always head over to Psychic Source TV where they plan a wrap-up after the debate.

The article also recounts opinions from psychic Moira O’Dowd, numerologist Paige Kelley and “not-just-a-tarot-card-reader” Therese Baxter — all of whom admit the Presidential race is too unpredictable for them to call. The Politico sums it up this way: “Your guess is as good as theirs.”

I have no problem with tongue-in-cheek articles written all in good fun. Is that what this is? Your guess is as good as mine.

— DRJ

[Posted by Karl]

According to the New York Times, Excitable Andy would ask this question:

Governor Palin, since you were selected as a vice presidential candidate, Mahmoud Ahmadinejad has given more press conferences to American reporters than you have. Why do you have less confidence in the American press and people than the president of Iran does? And when will you dare to face the press for real?

Aside from its form as an insult, the question demonstrates Sullivan’s lack of political acumen, as this is one of the questions Palin has demonstrated she can answer.  She is quite comfortable talking about the “gotcha journalism” that the fanatical Iranian president never gets from US journalists.  She could respond that she likes talking directly to voters about their concerns in town halls, of the sort Barack Obama turned down holding with John McCain.  She might even mention that when she does speak to the press, she does not run away from tough questions, as Obama has done.

It as though Sullivan is ignorant of the fact that we entered this election campaign with solid majorities of the American public critical of Big Media for political bias, inaccuracy and failing to acknowledge mistakes.  Ignorant that Gallup found that only 40% of Independents trust Big Media.  Ignorant that Harris found found even worse numbers for Independents.  Ignorant that Harvard University found nearly two-thirds of Americans do not trust campaign coverage by the news media.  Ignorant that a Sacred Heart University Poll found that just 19.6% of Americans say they believe all or most news media reporting.  Ignorant that Rasmussen found that a majority of unaffiliated voters see reporters trying to help Obama and that about half say reporters are trying to hurt Palin.  Ignorant of year after year of polling data showing that Americans do not find journalists to be all that honest or ethical.

Of course, we know that the questions the Sullivan really wants to ask Palin involve gobsmackingly vile and stunningly hypocritical personal attacks that he admits are “crazy” and that he has “no proof” to support.  What we learn today is that if forced to operate in the arena of a sane and civil society, the question Sullivan would ask is so politically tonedeaf that it would likely help the very person he so obviously would like to destroy.

–Karl

Tonight is an absolutely critical moment for Sarah Palin. She had better do better than this:

A couple of those clips depend on selective editing, but you can’t blame it all on editing. And they didn’t even include the deer-in-the-headlights answer on Supreme Court cases.

I was a big supporter of Sarah Palin’s before her nomination. But I’ve become increasingly disenchanted with her candidacy, and you’re looking at why. She has to do way, way better than this. And I hate to say it, but it’s not stupidity we’re looking at. It’s just bad bullshitting.

The American people have a good bullshit detector. Let’s see absolutely none tonight.

From Palin, that is. We already know that Joe Biden is going to bullshit us, and say about a dozen utterly stupid things. He’s Joe Biden. That’s what he does, and the media gives him a pass, every time.

We can’t give him a pass — but we can’t give our own candidate a pass, either.