Posted on 03/02/2007 10:01:36 AM PST by STARWISE
By Jeralyn, Section Lewis Libby Trial Coverage
Posted on Fri Mar 02, 2007 at 07:21:00 AM EST
A verdict is unlikely today in the Scooter Libby trial. The jurors' note (pdf) yesterday said they wanted to be excused at 2:00 pm to attend to "personal, professional and medical obligations," and the Judge granted it.
The judge thinks they will deliberate into next week. And yes, it appears they care about being dressed appropriately when the verdict is returned:
`So I assume they will not have a verdict tomorrow either,'' Walton told lawyers as jurors finished their seventh day of deliberations.
Before bringing the jurors into court, Walton advised lawyers they ``will not be happy about coming into court because they don't think they are dressed appropriately.''
He said that's why they decided not to come into court Monday for a brief discussion and how ``I knew there wasn't a verdict'' coming Thursday. About half were wearing blue jeans, but most smiled broadly when Walton granted their request to leave early Friday.
The Judge denied a request for a dictionary:
Walton said he denied the dictionary request - not an uncommon one for juries - because definitions of common words can have legal implications. He told jurors if they had questions, they could ask him directly.
(Excerpt) Read more at talkleft.com ...
BREAKING:
New notes from jurors
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http://www.firedoglake.com/
More Notes From The Jury
By Christy Hardin Smith @ 12:17 pm
This just in:
The Libby jury delivered two notes containing questions when they were excused today. Both notes will be available on the public docket later today. Court will convene at 9 a.m. on Monday March 5 to address the notes. Thank you.
Nothing is showing up as yet on PACER, at least not that I am seeing. That's two notes. From the Libby jury.
And we'll be back with live coverage on Monday. You know what I know at the moment.
UPDATE: The text of the two notes is as follows. The first note:
As count I statement 3 (pages 63 & 64) do not contain quotes, are we supposed to evaluate the entire Libby transcripts (testimony) or would the court direct us to specific pages/lines.
Thank you.
And note 2:
We would like clarification of the term "reasonable doubt." Specifically, is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt.
Jeralyn has the notes up at TalkLeft, so you can see them in their handwritten glory, and says she'll have some thoughts on them shortly.
Here's my quick take: You almost always get to a point where the jury has a question about reasonable doubt. This is because most jurors get to a point in their deliberations where their mind goes "holy crap! I may be putting another human being in jail.
What if I'm wrong to do so? What if I let this guy go and he commits some other crime — how will I live with myself? Arrrgg, the pressure…I just want to do the right thing."
Or, at least, I presume that is what jurors are thinking, because that's what I was thinking sometimes as a prosecutor. Even when you have a defendant that you are positive is guilty as sin — not just in this particular case but in a bunch of other cases, you still have that twinge of "is putting this person in a hole in prison appropriate." It's called having a conscience, and that makes lowering the hammer difficult.
So you almost always reach a point, right before the jury makes it's decisions, where they have questions about reasonable doubt.
Here's the thing about it, though: this isn't the sort of thing where, like when you were a kid, you can sit around and say to yourself "well, if Superman were to fly over the building, save Lois Lane and fight off Lavaman with one hand, would it be possible for him to strangle Lex Luthor with the other if Lois were holding onto his neck?"
Reasonable doubt is just what it says — REASONABLE. Not beyond all doubt. Not beyond any doubt you could possibly conjure up in your brain that would never happen in a billion years. It has to be reasonable.
Judge Walton probably has some standard way that he deals with this particular question — because, as I said, most criminal juries get to it eventually — and we'll learn what that is on Monday.
The question regarding whether a certain thing was within quotes or outside of quotes? I'm going to hazard a guess that one of the Ph.D.'s on the jury has headed into the weeds.
(Not to say that lawyers aren't perfectly capable of weediness, too, mind you, but that seems like such an academia construct, doesn't it? Maybe it's just me, on a Friday afternoon with a tired mind…) And that, come Monday, their heads will have cleared and they will all realize that they are thinking to much about minutiae.
And I'm wondering if Judge Walton's response might be to sequester them come Monday, to speed that along a bit.
Those are my thoughts. What do you guys think?
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From Jeralyn Merritt
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http://www.talkleft.com/
March 02, 2007
Libby Jurors Raise Question About Reasonable Doubt
By Jeralyn, Section Lewis Libby Trial Coverage
Posted on Fri Mar 02, 2007 at 02:40:42 PM EST
The jury in the Scooter Libby trial sent two questions to the Judge today before leaving early for the weekend. You can view them here.
http://www.talkleft.com/LibbyTrial/jurynote32.pdf
The one about reasonable doubt is the most interesting.
We would like clarification of the term "reasonable doubt." Specifically, is it necessary for the Government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt.
I'm pondering it and will be back soon with some thoughts. In the meantime, feel free to weigh in with yours.
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WoW --- good for them, they are being very deliberate
and cautious about the terms.
I'm assuming this means the judge will be answering these notes in open court on Monday? Wonder if he already has answered today.
Really interesting.
I guess they haven't all walked in with an agenda...at least that is what this sounds like.
More on jury questions from Jeralyn
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http://www.talkleft.com/story/2007/3/2/154042/3345
The jury instruction on reasonable doubt is here.
http://www.talkleft.com/LibbyTrial/reasonabledoubt.pdf
Update:
My thoughts below:
Of course, this is reading tea leaves, but it sounds to me like one person (at least one, but in the minority) is taking the position that there is reasonable doubt because Fitz didn't prove that it was impossible for Libby not to have remembered an event.
Why in the minority? Because the answer is obvious and should be to them. It sounds like the majority have tried explaining this point over and over to one or a few people and they keep not getting it.
As to what the event is, I suppose it could be a conversation or a meeting. But I doubt they would have called it "an event" if they were talking about a particular statement within a conversation. Some possibilities:
* The most basic: Could he have forgotten his June discussion with Cheney about Joe Wilson and his wife at the time he spoke with Tim Russert in July...so that as he said, when he heard it from Russert, it was like he was hearing it for the first time.
Less Likely:
* The June 23 meeting with Judith Miller (which they are allowed to consider in deciding the obstruction charge which is now based only on conversations with Cooper and Russert, even though it's no longer charged as part of the crime;)
Update: On to the first note about the third statement in Count 1 of the Obstruction charge on pages 63-64. Here they are. The jury wants to know, since the statement is not in quotes, whether they should consider all of Libby's grand jury testimony or whether the court wants to direct them to parts of it.
(3.) That Mr. Libby advised Matthew Cooper of Time magazine on or about July 12, 2003, that he had heard that other reporters were saying that Mr. Wilson's wife worked for the CIA, and further advised him that Mr. Libby did not know whether this assertion was true.
Your thoughts?
What's your take?
Follow up:
Pages 63-64, subject of jury question:
http://www.talkleft.com/LibbyTrial/pages6364.pdf
FYI: Lawyer on CNN, responding to this question:
"Specifically, is it necessary for the Government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt."
Lawyer says government does not have to prove this.
~~~~~~~~~~~~~~~~
Now ... my brain is hurting from all this .. is this good or bad for Scooter? It's making me nervous.
Maybe the jury can't believe that Tim Ruusert, an ATTORNEY and was Senate Counselor, didn't know that your lawyer couldn't go into the Grand Jury room with you!!! Talk about UNBELIEVABLE!
The jury has been out too long. I believe they have been out long enough that they figure they need to give something to Fitz to justify all this "deliberation". That is, they'll give him a small "victory" (ie., conviction on some minor count) and acquit the rest. That's my prediction.
I am in the same quandry as you, Star...
I just can't get my brain around what this all means.
I am just praying that it means that they are going to go with the "reasonable doubt"...
If it is driving us nuts...think of what Libby and his family are going through.
Did you read the notes of Andrew McCarthy...posted on the other thread???
Andrew said the same thing I did...why aren't these jurors sequestered?
I am not a lawyer but I just got a $300. bill from one.
If both scenarios (the gov and the defendandant's)are plausible
(which I should think they are the defendant being human)...
and there is not enough evidence to prove something happened the way the gov says it did
(ie that Libby lied)
(how can the gov prove something that is plausibe did not happen without a smoking gun)
( that Libby forgot where he heard the info from and and that Russert is not infallible)
Then it seems to me the defendant gets the benifit of reasonable doubt
not guilty
Okay...I will believe you ONLY if you go and spend the night at Holiday Inn tonight.
Check back with me in the morning.....
LOL
Repost of "reasonable doubt"
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http://www.talkleft.com/LibbyTrial/reasonabledoubt.pdf
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Thanks, sleuthie .. I FINALLY found this post from McCarthy from yesterday ... gives a little more background:
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http://corner.nationalreview.com/post/?q=ZWVkZjFhNmI1ZDkyMjkxYjIzMWFjMGIzNTBiZWM5M2E=
Thursday, March 01, 2007
re: The Libby Trial -- Heading Toward a Hung Jury? [Andy McCarthy]
Byron's reports continue to be welcome and characteristically excellent. I would add only this voice of experience. Sometimes jurors in the BIG case really get into being jurors in the big case, and retry the whole thing in deliberations. I got that sense yesterday when the note we heard about indicated, after six days, that they were only up to Count Three of the five-count indictment.
From afar, we think it's an easy case — Scooter lied or he didn't. From their perspective, though, it's much more involved and they're much more invested. Indeed, if they had just decided to watch Libby's grand jury testimony again, that would have taken a day to a day and a half of deliberation time.
Nothing is more imprecise than reading a jury. The only thing I'd note at this point is that we have no signs of divisiveness or stalemate. They may just be hellbent on trying to get it right. We shall see.
But, as I suggested a couple of days ago, this may explain the oddity that Fitzgerald wanted an alternate juror added when one got disqualified while Wells was content to go with 11 — both counter to the usual playbook for prosecutors and defense counsel. If the lawyers had a sense that deliberations would be very long, it makes sense that Pat would have wanted to avoid at all costs the possibility of losing a second juror, while Ted would have been happy to increase the chances of getting down to 10 — at which point a mistrial gets more likely.
I always think the judge in a high-profile case should sequester the jury during deliberations. Juries tend to move it along when they don't get to go home every night — and the chances of their being exposed to prejudicial outside publicity is drastically reduced. When the judge doesn't sequester them, this is what occasionally happens.
03/01 05:43 PM
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Does ANYONE know if there's a way to post an Adobe Acrobat document here as text doc? Thanks in advance.
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The referenced post by Byron York from yesterday:
http://corner.nationalreview.com/post/?q=MjdiYTE1YzJjNTAwNzFmOTAyMjM4MjU5YTE4ZThkZDg=
Thursday, March 01, 2007
The Libby Trial -- Heading Toward a Hung Jury? [Byron York]
The judge has just made his statement to the jury. It turns out that one of the jury members asked for a dictionary, and the judge explained to them that they could not be given one. "I try as best I can to use common language in the instructions I give to jurors," Walton told them.
"If there is any wording in the instructions that you need defined, those have to come from the court. You can't look in the dictionary and get what the dictionary definition is."
The more important thing going on is the growing concern over the length of the jury's deliberations. Today was Day Seven, and the jury has asked to be let out early tomorrow, which will be Day Eight.
Everyone, including Judge Walton, has taken that as a sign that jurors know they won't have a verdict tomorrow, meaning that deliberations will stretch at least into Day Nine on Monday.
Before the jury came into the courtroom, the judge was talking to the defense and prosecution and observed that the jury was dressed casually today — a standard clue that jurors did not expect to have a verdict, which would be announced in the courtroom with the media present.
"They did not dress today, so I knew there would not be a verdict," Walton said. Then Walton mentioned the early-release note for tomorrow and said, "I assume they will not have a verdict tomorrow, either."
Most observers think that protracted negotiations point to the possibility of a hung jury and a mistrial, as jurors realize they are unable to reach a decision.
The case is somewhat complicated, but it's not that complicated; a verdict could reasonably be expected by now. Nevertheless, jurors have not told the judge that they can't reach a verdict, and even if that happens, the judge would undoubtedly tell them to go back and try harder, leading to more deliberations.
03/01 04:51 PM
a random thought:
is Russert the closest thing Fitz has to a smoking gun?
R-U-S-S-E-R-T
Friday Night update from Jeralyn
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http://www.talkleft.com/story/2007/3/2/224645/3472
Libby Juror Note, Part 2: Late Night Tea Leaves
By Jeralyn, Section Blog Related
Posted on Fri Mar 02, 2007 at 09:46:45 PM EST
I'm still considering the jury note today on reasonable doubt. (You can view it here.)
http://talkleft.com/LibbyTrial/jurynote32.pdf
We would like clarification of the term "reasonable doubt." Specifically, is it necessary for the Government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt.
Where would a juror get the idea that the Government had to produce evidence that it was not humanly possible for Libby to have forgotten about an event?
One place is from this section of Ted Wells' closing argument. (From the transcript -- no link, sorry, but it is official.)
~~~~~~~~~~~~~~
Now, I tried to display -- let's go to the next slide -- graphically just how you ought to think about it.
If you think the witnesses that testified in June or July on your left and Mr. Libby on your right, again, the question is not what Scooter Libby remembered in real time back in June or July. The question is what did Mr. Libby remember three months later.
Those witnesses, again, all they can do is say this is our recollection in June or July.
They don't help you in answering the question, what did Mr. Libby remember in October. Did he have a good faith misrecollection? Or did he lie?
They got to give you powerful evidence of lying. And none of those witnesses help you on that question.
Next slide. In essence, from a graphic point of view, there is just this huge evidentiary gap.
They've got witnesses in real time in June and July but no witnesses concerning his state of mind in October.
Again, no witnesses come into the courtroom and say that in October he lied.
Again, there is no smoking gun document. There is no expert testimony that he could not have forgotten.
I mean, nobody took the stand and said, based on an empirical evidence, there is some study that says it's impossible for him to have forgotten in October what he was told in July.
The record is barren on that point. There is no type of physiological evidence or scientific evidence.
It's just barren. (my emphasis)
Libby could have made an innocent mistake in October. And Libby, under the rules of this justice system, he doesn't have to prove that he made an innocent mistake.
They've got to prove that he was engaged in intentional lying. And they haven't given you any evidence; they haven't given you anything.
They're just asking you to speculate.
Nobody can say with any degree of certainty that he just didn't have one of those moments that we all have in life where he thought something happened one way and it happened another.
They have given you no evidence.
~~~~~~~~~~
Of course, Wells' closing argument is not evidence and the jury doesn't have the transcript.
Maybe a juror took notes during it. Or, maybe a juror, contrary to Libby, has a particularly good memory.
Or, maybe it just really hit home with one (or more) of them.
Okay...we are dealing with jurors that have to go on memory...because they don't get the transcript or anything..but their own notes.
And they are supposed to CONVICT a man of NOT remembering something he didn't know he would HAVE to remember months and months later.
At least they knew they had to remember the testimony...but, they are still having problems remembering possibly??
How sadly ironic if Libby gets convicted on this basis.
I imagine it would get so confusing with all the players, dates, and conversations.
I'm liking the seed of doubt Wells planted in his close.
From A. J. Strata ~~ potential good vibe?
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http://strata-sphere.com/blog/
Libby Jury Has “Doubt”
Posted by AJStrata on March 2nd, 2007
The jury deliberating the Scooter Libby case clearly have doubts regarding the prosecution’s claims, since they have asked for a definition of “reasonable doubt”:
Jurors asked for the definition of “reasonable doubt” Friday after completing a shortened, eighth day of deliberations Friday in the perjury trial of ex-White House aide I. Lewis “Scooter” Libby.
“We would like clarification of the term ‘reasonable doubt,’” jurors wrote.
“Specifically, is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt.”
The question is basically how high is the burden of proof for the prosecution.
In this case it is quite high, as some are apparently determining.
And yes, in my opinion the government needs to prove it is impossible (if not infeasible) for the someone not to be able to recall details clearly and accurately to prove the opposite: there was a deliberate lie.
The fact this is a question means the government did not make its case clearly and without hesitation.
Some may want to believe there is no way for any other determination than a lie, but the government never once proved it, and in fact proved NO ONE had a clear and precise recollection.
In fact, out of 8-9 reporters testifying only one claimed it was POSSIBLE Libby mentioned Plame without prompting.
Right now it looks like dismissal or hung jury.
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Holding breath ~~ D-Day: Monday, Tuesday?
I like that take...of course.
I am betting Tuesday....
They will get together Monday..and compare notes on what they found out over the weekend (kidding?)...
They will then decide they will give the verdict on Tuesday...so they have one more day of "fame".
On Monday night..they will call all of their friends and family and give them the heads up about a verdict on Tuesday.
Okay...if the ditzes at fdl can blog silly stuff...so can I, right? LOL
LOL .. right on!
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