Picking a Jury: The Libby Voir Dire

Posted earlier at The American Thinker:

Yesterday, as part of the Media Bloggers Association, I covered the ongoing voir dire of potential jurors for the upcoming Libby trial. This is the first time bloggers have been issued press credentials to cover a federal trial. Voir dire is the process of questioning potential jurors to eliminate them for cause (for example bias or felony convictions) or simply for no stated reason by either party (preemptory challenges).

We have not yet got to the preemptory challenges but many of the jurors have been struck for cause, largely bias against the Administration and the defendant, bias often occasioned by prejudicial pretrial publicity.

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Comments

[topsecretk9]

You ARE a tech diva! And TM is now your Blog DADDY!

[clarice]

I'm sorry for any interruption--this is not an ego trip..MBA just set this to feed into their site.

I also have to add this:

Clarice is an attorney who has covered the Libby case extensively for the American Thinker http://www.americanthinker.com/ and is the author of "The Case of the Missing Crime" for the WeeklyStandard http://www.weeklystandard.com/Content/Public/Articles/000/000/012/720lutwz.asp . She is a frequent poster at Just One Minute http://justoneminute.typepad.com/ where her utter inability to type or to master internet technology is obvious and a source of benign amusement to the bright crowd of regulars who post there

Just One Minute has been following attentively this matter for years. On the right side of this blog are hyperlinks to many of the key events and documents in the case and I invite you to pole around in them and the archives.

Most of the regulars here are well-informed (some might say obsessed, but I wouldn't be one of those, of course) with the case and continue to come up with the most insightful commentary and research about it you can find anywhere.
In the absence of Tom Maguire, our fearless, brilliant and charming leader, I welcome you.

[clarice]

I warned you I can't type--this" I invite you to pole around in them and the archives." should be an invitation to "poke" around in the archives ..and of course I should have said the JOM posters are well informed ABOUT the case, not WITH it.

Carry on.

[Rick Ballard]

Clarice - depending on the level of privilege extended by Tom you may have the ability to edit not just your posts but also your (and others) comments.

I'd really like to have that "and others" privilege. I'd never abuse it, of course. Not often anyway.

[clarice]

Well if could edit others..but that would be wrong.
Once MBA sends me the instruction sheet you can be sure I'll whisk those typo critters from view on my posts.

[cboldt]

-- I'd really like to have that "and others" privilege. I'd never abuse it --

Chicken.

[Jane]

You can edit mine anytime Rick. Could you just make sure you make me sound smarter not dumb as a post?

[topsecretk9]

A federal judge said Friday that he likely would allow NBC News reporter Andrea Mitchell's notes to be used in the CIA leak trial, setting up another potential fight between journalists and the court in the case.

Mitchell's notes on her conversation with former White House aide "Scooter" Libby have been under subpoena for nearly a year, but U.S. District Judge Reggie Walton had ruled that, because Mitchell was unlikely to testify at trial, her notes would not be released.

Attorneys for I. Lewis Libby said in court Friday that they planned to call Mitchell as a defense witness during his perjury and obstruction trial. Opening arguments are scheduled for Tuesday.

Walton reversed course and ordered attorneys for NBC to be in court Monday to discuss the notes. He added: "I don't see how I can deprive the defense of it."

NBC News spokeswoman Barbara Levin said the agency would have no comment.

the "analysis" of what this "might mean" is priceless, but news otherwise.

TM will be interested in this, it's own of his little tasties.

http://seattlepi.nwsource.com/national/1151AP_CIA_Leak_Trial_Notes.html

[topsecretk9]

ONE, not own (however, I do think he "owns" the AM aspect)

[TCO]

(Forgive me for missing this when it was covered) Didn't the Novak story talk about a non-partisan White House official as the leaker? And Armitage is from State? Anyone commented on the inaccuracy yet?

[boris]

Forgive me ...

No.

[clarice]

TS--that's a very good catch.

Here's what Tom posted about that conversation:
"Per the transcript, Andrea Mitchell spoke with Lewis Libby in roughly the relevant time frame, but no one can pin down the date; Libby has testified about this, but it seems that Ms. Mitchell has not. Ms. Mitchell has one page of barely decipherable handrwitten notes that do not indicate that Wilson's wife was discussed, and the defense would like these notes.

The defense wants to play "heads I win, tails you lose" - either Ms. Mitchell did not get a Plame leak from Libby, in which case the defense can argue, gee, look at all the reporters he talked to without leaking, maybe he got confused.

Or, if he did leak to Ms. Mitchell (in apparent contradiction of his own testimony), then perhaps Ms. Miitchell mentioned it to her boss, Tim Russert. That might explain how Russert learned of it, and later told Libby, who by this time had clearly forgotten his leak to Andrea and was surprised to learn of Plame from Tim. Confusing? Wait until the defense hires a Russian novelist to explain it."

Mitchell

From what we have learned, Mitchell's offhand remark that "everybody" knew about Plame--we have a third possibility--Mitchell told Libby.

Of course, if that's so we get back to the question of how Libby, not the overly focused attention of Fitz on the WH to the exclusion of all other possible sources of the leaks, was what really obstructed his own inquiry.

[topsecretk9]

I can't remember, but didn't the subpoena call for all notes including a litany of people Mitchell was in contact about Wilson, not just notes taken with contact with Libby?

Also, I can't remember any mention of Libby talking with Andrea Mitchell? When was this?

[clarice]

Thanks to Sunny Day we have links to three new filings in the case in html format for researchers to use.

There is an order placing the transcripts of bench conferences discussing individual jurors under seal. http://members.cox.net/liinda/251.htm

An order sealing the government's pleading:
"Upon consideration of the .govethment’s Motion to Seal Government’s Response to Defendant’s Motion in Limine to Redact Portions of Defendant’s Grand Jury Testimony, it is hereby • .."http://members.cox.net/liinda/250.htm

And a proposed jury instruction by Libby setting forth his theory of defense:

"At the request of the Court, I. Lewis Libby, through his counsel, submits the following proposed jury instruction describing the theory of defense. This instruction will be revised and expanded at the close of the evidence.

Proposed Instruction:

Mr. Libby denies that he intended to or did obstruct justice, make intentionally false statements to the FBI, or make intentionally false statements to the grand jury. He contends that he told the FBI and the grand jury his honest recollections at the time, and to the extent any of those recollections were incorrect, his mistakes were innocent. He contends that he lacked any notes of the conversations about which he has been accused of lying, and that he was unable to refresh his recollection by reviewing the notes of other people and discussing with them their recollections of events. He contends that any conversations he had about Ambassador Wilson’s wife during June and July 2003 were so brief, and the information he received so incidental to the issues he was dealing with, that he honestly did not recall them when he was questioned about them. He contends that the amount and importance of intelligence information he was receiving and responding to during June and July 2003, and the number of vital issues of national security he was dealing with on a daily basis, dwarfed any information about Joseph Wilson’s

wife’s employment. Thus Mr. Libby contends that it is natural that he did not recall, or recalled incorrectly, brief conversations about the employment of Mr. Wilson’s wife when the FBI’s investigation began in October, and when he testified to the grand jury the following March. Mr. Libby further contends that when the investigation began, he was confident that he had not provided any information about Mr. Wilson’s wife to Robert Novak, and that he had not disclosed classified information about Mr. Wilson or his wife to any other reporters. Further, Mr. Libby was well aware when he was first interviewed by the FBI and when he testified to the grand jury that the investigators could and likely would talk to the journalists he spoke with concerning Ambassador Wilson and that those journalists would truthfully recount their recollections of the conversations he had with them. Thus Mr. Libby submits he had no reason to lie to the FBI or the grand jury, and did not do so."
http://members.cox.net/liinda/249.htm

[topsecretk9]

Thanks to Sunny Day

I see you!

[Patton]

"""Mitchell's offhand remark that "everybody" knew about Plame--"""

I wouldn't characterize it as off-hand, she was being interviewed on a ntaional broadcast and I am sure NBC top journalists choose their words mighty carefully when they are imparting information to the public.

I don't think Fitz will get Mitchell to admit under oath that she makes alot of flippant, off hand comments to the public during the shows she's on and we really should ignore what she says or take it with a grain of salt.

I suspect, given what we know about the Plame couple, 'everybody' knew she was CIA, at least in Andreas circles.
BUT, they didn't know she was involved in sending Joe to Africa.

[TCO]

If he was such a busy guy and the issue was so non-iumportant, how did he know for sure that he had not talked about the matter to Novak? If he could forget one lapse, could he not forget another?

[MayBee]

About your AT Article Clarice, and the WaPo journalist/potential juror:
to share what she learned at the trial with her colleagues at the Post and her live-in boyfriend, who works there. "I'm a gossip," she professed.

Hilarious, isn't it, in a trial about how "everybody knew/all the reporters knew"? Perhaps she, as someone who is an obvious newsroom gossip, would have been good to have on the jury.

[topsecretk9]

Maybe he talked to Novak about Welfare Reform, hmm?

[clarice]

Yes--kinda like how Fitz not finding out about Armitage gossiping to Novak kept him from finding out that Novak told Pincus and Ben Bradley somehow mysteriously also knew that Armitage was the guy who leaked to Novak.

[topsecretk9]

Maybee

At least she wasn't sugar-coating her profession.

[clarice]

I mean Fitz not finding out about Armitage gossiping to Woodward....(I'm going to preview. I'm too tired to read well.)

[Rick Ballard]

"Novak told Pincus"

Woodward told Pincus - they all really do look and sound the same so the error is very understandable.

[clarice]

Last shot at this with the intended name in BOLD.

"Yes--kinda like how Fitz not finding out about Armitage gossiping to WOODWARD kept him from finding out that WOODWARD told Pincus and Ben Bradley somehow mysteriously also knew that Armitage was the guy who leaked to Novak."

And , of course, prevented Fitz from finding out that WOODWARD twice talked to Libby and concedes he may have told him about Plame.

[Steve White]

Clarice, on your excellent paragraph regarding professional gossip, er, journalist, er, juror 1531. I must say, if I were in the pool of 100 (how long and exactly how sharp are those needles again?), and I had decided that I really, really didn't want to be sequestered for the next umpteen months on that jury hearing about this case, I'd make darned sure I blurted something about the eeeeeeevil Dick Cheney. Or something like that. Whatever, and I'd have no pride at all.

[JJ]

I hear the rushing sound of chickens on the wing, coming home to roost. Love the thesis on the AT article.

[topsecretk9]

Maybee - Here is how Dickerson wrote about it

A Washington Post reporter (yes, another one) said she would find it impossible to keep from talking about the case with her boyfriend, with whom she lives. "I don't talk to my wife," muttered the judge, continuing the trial's leitmotif of telling us more about the main character's spousal relations. "I'm a journalist," she said in her defense. "I'm a gossip; it's what we do." In the end, it wasn't her profession but her views about Dick Cheney that bounced her. "I don't trust him, and anyone associated with him would have to jump over a hurdle for me to think they are at all telling the truth."

[MayBee]

Also, I can't remember any mention of Libby talking with Andrea Mitchell? When was this

I don't remember this either.

[clarice]

MayBee I cited to Tom's discussion earlier. I had no independent recollection of it either.

Dickerson was there yesterday. He's a very nice guy.

[clarice]

It's all from the very densely packed transcript of the May 16, 2006 pretrial hearing.

http://www.truthout.org/trans051606.pdf

And I guess--indict us all--we concentrated more on other things in it--like Cooper and Calibresi--than we did on Mitchell.

[MayBee]

Why yes you did clarice. How embarassing for me.

[cboldt]

-- Walton reversed course and ordered attorneys for NBC to be in court Monday --

The press lies. See Walton's December 19 Order. "Course reversal," hahahahaha.

[topsecretk9]

Amitage innocently gossiped to 2 reporters

"Novak told Pincus"

Woodward told Pincus

Mitchell's offhand remark that "everybody" knew about Plame

Judy Miller believed that before this call [with Libby], she might have called others about Mr. Wilson's wife.

"They're a journalists," said in their defense. "They gossip; it's what they do."

[Rick Ballard]

"The press lies."

In other news, water remained wet today.

[clarice]

Refresh my recollection cboldt. I'm old and my memory fades out.

[Javani]

Clarice, did the following strike you?

"...and that he was unable to refresh his recollection by reviewing the notes of other people and discussing with them their recollections of events."

Lookin' good for Libby.

Mitchell is being called for her contact with Wilson and "everyone knew" comment.

[cboldt]

-- Refresh my recollection --

Consider it done. The Order I have in mind is likely not in your recollection.

[clarice]

Yes, Javani-Let's see if he gets that jury instruction.

[clarice]

cboldt, my head is splitting and I wish you'd tell me what you meant.

Here's Matt Apuzzo's explanation for Mitchell being called and I don't understand it:
"Mitchell's testimony and notes could help Libby's case by describing an atmosphere of tension and finger-pointing within the Bush administration regarding intelligence issues on Iraq. That could bolster Libby's claims about a hectic and tumultuous climate in which he could not accurately remember certain conversations."

Mitchell

[MayBee]

Perhaps Libby's defense should be he was just gossiping to the investigators.

[Javani]

""They're a journalists," said in their defense. "They gossip; it's what they do.""

It's plausible that a journalist did tell Libby "everybody knows" but very few actually did, the journalist wanting to ferret out a confirmation, but would never confess to this trick of the trade.

As for the British issue and the anonymous leaks by the "Ambassador", the prosecution will frame as much as they can that the matter derived from Mr. Wilson's article. The defense will point out why Wilson, and maybe his wife, would be much subject of discussion within narrow Washington and journalism circles before the article and thereby plausible that many knew.

Anyone telling me the Brits weren't calling all sorts of Washington folk about this Ambassador bloke during the Dodgy Dossier hoo-ha? No Brit reporters calling their American contacts? Unlikely.

[Javani]

"Yes, Javani-Let's see if he gets that jury instruction."

Clarice, you know more about this than me, but my impression was not about a jury instruction but...did other people have that benefit?

[SunnyDay]

Here is the "US v Liddy" reference (being used in another case) - about halfway down the page.

In conducting voir dire under Federal Rule of Criminal Procedure 24(a), the trial judge “‘is accorded broad discretion to mold the manner and mode of [the] examination,’” and there is “‘no basis for reversal unless he abuses his discretion, and there is substantial prejudice to the accused.’” Id. at 1095 United States v. Liddy, 509 F.2d 428, 435 (D.C. Cir. 1974).

[clarice]

Anyone whose notes hadn't been subpoenaed when they spoke to investigators.(That covers all the press) Miller could look at her notes. Cooper and Russert could have(though Russert says he had none), Mitchell could have.Novak could have. Woodward could have.

I have no knowledge that DoS or CIA employees notes were inititally subpoenaed. If that's right-Powell and Armitage and Grossman and Grenier and Schmall could have.

[topsecretk9]

Cooper on his ROve GJ appearance:

For my part, I sat at the end of an L-shaped table next to one of the prosecutor's lawyers, who handed me various documents to review while an overhead projector displayed the documents on a screen near me.

[MayBee]

The press lies. See Walton's December 19 Order. "Course reversal," hahahahaha.

Would you please provide a link, if you have one, to the document on your website, cboldt? I don't have your site bookmarked. Maybe TM would also consider a link on his sidebar, along with Polly's Datebook, etc.

[topsecretk9]

I am not positive, but I think Cooper turned over his notes just in July 05, just before Rove - at least his notes concerning Rove he fought. So I am not sure if he wasn't so protective of his Libby notes.

[topsecretk9]

it says in full:

He contends that he lacked any notes of the conversations about which he has been accused of lying, and that he was unable to refresh his recollection by reviewing the notes of other people and discussing with them their recollections of events.

[Semanticleo]

Get your popcorn ready.

Cheney will melt down like Captain Queeg.

Mark my words. Remember who said it.

[cboldt]

-- Cheney will melt down like Captain Queeg. --

Who is Captain Queeg?