Jury Notes

Jeralyn Merritt has links to the two notes sent out by the jury on Thursday.

I love the second one, which is a request for photos of the different witnesses - the jury which has been asked to convict Libby for not keeping his story straight can't keep it straight themselves.

Welcome to the club, whose membership includes Bob Grenier, Marc Grossman, Craig Schmall, Ari Fleischer, Judy Miller, Matt Cooper, and Tim Russert.

Well, Friday is way to quick for a hung jury, and I expect they will hang themselves on a few counts before they hang Libby, so I am planning for a result next week.

I will offer this Bold Prediction - win, lose, or draw, Libby never spends a day in prison.  He will remain free pending appeals; if the case is remanded, it will be dropped; otherwise, he will be pardoned. 

And more Bold Predictions - this "investigation" (which did not make a serious attempt to establish Ari Fleischer's or Tim Russert's credibility by calling John Dickerson and David Gregory as well as Andrea Mitchell) is over, and Fitzgerald will not be in charge of the appeals.  Why not?  Well, partly because his own conduct, including but not limited to his outrageous close, will be one basis for the appeal.

Comments

[clarice]

Matt Apuzzo has a good story in The Guardian on note taking :
"WASHINGTON (AP) - Write this down: Your notes aren't as reliable as you think. That's true whether they're scrawled in the margins of a business meeting agenda, typed on a secretary's laptop, scribbled on a patient's chart or carefully recorded from a lecture hall blackboard.

And, as the monthlong trial of former White House aide I. Lewis ``Scooter'' Libby has shown, they're no more reliable if the notes belong to FBI agents, journalists or White House aides.

That's a somewhat disconcerting thought. People are charged, front-page articles are written and public policies are decided in part based on those notes. If they are flawed, whose can be believed?

``Based on what I've heard in this trial, I don't know if notes are the best evidence of anything,'' U.S. District Judge Reggie B. Walton commented midway through the trial
(more)"

http://www.guardian.co.uk/worldlatest/story/0,,-6434883,00.html

[mastour]

Thanks for discussing this topic TM. I've been interested in hearing what these two requests portend for Libby.

[Bill in AZ]

I hope they sent in two pictures of Libby's cell phone for the pictures of Russert and Novak.

[PMII]

I think you are right & I sure hope you are right.

I can't imagine going to prison over this. I can't imagine going through any of this ordeal based on the known facts.

[Carol Herman]

FROM CAROL HERMAN

Ya know what? I wouldn't be surprised the bailiff got a request for "office supplies AND the photo lineup." And, he had the brains to ask the jurors to devide their requests. And, then he officially gave BOTH NOTES a COURT STAMP.

It seems ALL the exhibits are in the jury room. What they "may" be asking for is the visual Fitz used in his reBUTTal. When he brought in the "photo line up" and the BIG CASE. And, the accusation that Libby was covering for CHENEY.

So, yes. I expect this jury will take it's time as it mulls over the ILLEGAL WAY FITZ BLIND-SIDED THE DEFENDENT. And, waltoon didn't notice a thing.

However, as the days pass, I am sure Wells is preparing an APPEAL which goes up to the appellate division. Where he is asking for a quick reversal.

This, so far, is a busy roadway. It's got traffic on it, (from inside the beltway), and a few watchers waiting for the jury to return. But not a word, yet, up at Drudge. And, most of America doesn't seem to be paying attention.

That doesn't mean Woodward's OP ED piece isn't ready to role. And, who knows what his "pot shots" could do?

The jurors may come out, expecting the limosines to take them to TV studios, and instead they'll be pelted with information that they were just time-consuming jerks?

And, I think that "separate note" asking for "photos," is a key piece of evidence, here.

One reason this visual stands out, is that Fitz shows seven faces. But TWO of them, both CIA agents, are shown with the CIA seal, instead. (And, someone, here, mentioned how clever that subliminal message, to the jurors, really was.)

Ain't subliminal anymore!

Plus, they're not allowed to get it! And, the judge can't throw it into the jury room, without getting permission from "both parties," something he has failed to do in his court room, up to now. Walton just lacks the capacity to "enjoy" V-8 moments, it sure seems likely.

[MarkO]

I am uncertain whether we can divine the jury’s thinking based on those two notes. For me it is particularly difficult because I do not recall the exhibits that have pictures, And, as an aside, I would have thought the jury had all the exhibits in the room.

In many ways this is an effort akin to discovering whether “Paul is dead.” So, I’m ready.

Does the jury really need pictures of the witnesses if they start out believing that Libby was lying? Once they believe that, all that is left is filling in the forms. If they begin with the assumption that he is not lying, then they would want to go through each witness to check that conclusion. But, that doesn’t explain the need for pictures.

If the pictures are part of an illustrative chart (merely illustrative of combined testimony), then they could be confused about the evidence and in need of a refresher. Was there such a chart? What was on it?

BTW, check out Abby Road. Paul is clearly dead.

[Jim]

I don't have to chek out Abby Road, I heard the evidence clearly at the end of Strawberry Fields -- "I, burried Paul.

[lurker]

So if Fitz will not be in charge of the appeals, then will his replacement reconsider dropping the case during the appeals process? Hope NOT one member on Fitz' team will be considered.

DoJ would be wise to be careful in its selection of Fitz' replacement.

Looks like the odds are increasing that the jury will be hung on, if not all but most counts.

[Carol Herman]

FROM CAROL HERMAN

Good to see you, here, Mark O.

Doesn't it speak to the jurors' ability to mis-recall? If they need photos to jar them into remember this is what happened, here, when, and, where?

Paul's not dead. He made a terrible second marriage. Linda is dead.

[Sue]

I don't think they need to the pictures for recall. I think they are building a chart. For instance, if you just take Ari alone, you are going to run into trouble. Libby tells him on the 7th that Valerie Plame works at CPD. Hush hush. For days, Ari keeps this information to himself. Hush hush. Then, he reads the INR, hears Bartlett and immediately runs out and says check with CIA, yada yada, to Gregory and Dickerson. Dickerson says, uh, huh, didn't happen (not sure if the jury knows that, do they?). Ari then says no, I didn't tell Pincus. Pincus says yes you did, WMD analyst. Strangely enough, not what he alleges Libby told him. Then you have the Gregory factor. Russert saying if Gregory knows, I know. But Russert says it is impossible for me to know. I'll stop now, since we all know the story and don't need sticky notes, but you see why they would need pictures to diagram the conversations. Names would probably work just as well, but being creative, they decide to use pictures because they saw them during the trial being used.

[Tomf]

The prosecution presented pictures of Russert and Novak. Obviously, someone on the jury picked up on that and wondered if Libby could have mistaken the two. Sounds silly, considering that Libby talked to them on the telephone, but it's apparently of interest to someone on the jury.

[Pofarmer]

Well, there's two things I'm not sure of. #1. If Fitz was a poitical appointment brought on by Schumer, et al, I think stories of his demise, may, unfortunately, be a little premature. #2, if Libby is convicted, I'm certainly not sure of a pardon. The moonbats would howl loud and long, and Bush doesn't seem to like the noise. Now, that's not saying I think Libby will do time. If Berger doesn't do time for his acts, then certainly, if Libby is convicted, his punishment should maybe be getting to kick Berger in the ass for 100 hours, or something to that effect.

[Sue]

Tomf,

IIRC, the prosecutor whose name starts with a 'Z' used a diagram with pictures with the CIA personnel represented by the CIA symbol to further enhance the need for keeping them secret, even though they had testified in court.

[MarkO]

Isn’t there only one question for the jury: did Libby lie? One question. If he lied, he is guilty on all counts. If he didn’t, he’s not guilty of anything.

To me, the longer it takes, the better for Libby.

[dorf]

28 IF

[Jane]

Clarice,

If there is a conviction, is there any discretion on sentencing? One would hope that even with a conviction the Judge would say "no jail time" because the case is so stupid. And that actually helps Fitz who will probably be made to look like a fool should one competant appeals Court Judge get his crack at this.

Then the connundrum is for Libby. Does he spend the money to clear his name, risking a remand, and potentially a worse outcome.

[hit and run]

Time for the important stuff.

Handwriting: male or female?

[MarkO]

I don’t see the mistakes here, including the off the record closing, as harmless error. No retrial. But, if there were, the defense would be better off having seen everything the prosecution had and, perhaps, changing the evidence in Libby’s favor.

[Chris]

I was thinking yesterday these notes were good for Libby but I just remembered the prosecution image that had Libby and arrows going to the nine people. Could that be what they wanted? If so it could go either way. I would like to think once they analyze each one's actual testimony the flaws in their memories would soon become apparent.

[Chants]

Dickerson says, uh, huh, didn't happen (not sure if the jury knows that, do they?).

Posted by: Sue | February 23, 2007 at 07:52 AM

They better not know about Dickerson's denial. His denial came after the commencement of the trial. After the commencement of a trial, the only facts upon which the jury may render a decision are those adduced at trial.

[maryrose]

I see acquital on the horizon. Libby did not lie to FBI agens. Russert's initial testimony to FBI agents has been "LOST". As the Church Lady used to say"How Convenient!"
There is no definitive harm to Val or proof of a campaign to punish a whistleblower. A case of he said'he said/ she said in which the burden of proof has not been satisfied.

[Sue]

They better not know about Dickerson's denial.

For some reason, and I haven't checked back to see if I'm right or wrong, but I thought I read somewhere where they stipulated that Dickerson was denying hearing it from Ari. But, I'm not really sure so I put the remark in the form of a question. I guess I should go search for the answer, huh?

[Tomf]

Sue:

Yes, your right it's not obvious at all that a juror is asking about the possible mix up by Libby of Russert/Novak. It's possible, but not obvious.

[Chants]

Jane,

All a jury does is return a verdict of guilty or not guilty on each count.

If it returns a guilty verdict, then its job is done. The next phase is sentencing, which is done before the judge. Sentencing is generally highly discretionary, even if there are any applicable sentencing guidelines.

[MarkO]

Let’s step back briefly. Generally, it’s just not that hard to show someone is lying. It’s harder to get a judge to do anything about it. It is now assumed in most courtrooms that there will be lying.

Now, look at this case. Just how much evidence and argument and stonewalling of significant evidence did it take to make even a weak case against Libby.

However one feels about Clinton’s perjury charge, it was really easy to prove.

Class. Compare and contrast. Remember your assignment to explain the Mayan calendar.

[clarice]

Jane, of course the judge has discretion--From a blog which specializes on sentencing:
"Because the guideline are, of course, only advisory, and because lots of different aggravating and mitigating factors might be raised in Libby's case, I could see Libby's sentence being much lower or much higher than this estimate.

While we await a jury outcome, perhaps some readers would like to give US District Judge Reggie Walton additional sentencing advice about the possible application of the guidelines' advice and others 3553(a) factors.

Obviously, the Libby case is atypical in many ways, but is that alone a reason not to focus on the guidelines? Do 3553(a) factors suggest that a particularly lenient, or a particularly harsh, sentence for Libby would be appropriate? I am very interested in thoughtful musings while Libby's sentencing is still only a possibility."

Sentencing guidelines advisory

As for the second part of the question, I don't know.
If he's cleared on everything but one count, his counsel may file a Rule 29 motion on that before deciding.

[Rick Ballard]

"After the commencement of a trial, the only facts upon which the jury may render a decision are those adduced at trial."

Dear Juror 7,

While Chants' comment is generally true it does not take into account the "JOM exception". You may return to deliberation secure in the knowledge that absolute adherence to the 'rules of the game' is not, well, absolute. A brief examination of the prosecutor's close certainly reveals his attachment to 'playing by the rules'.

Now, go kick some sand.

[Jane]

Sentencing is generally highly discretionary, even if there are any applicable sentencing guidelines.

Is that in DC? Federal Court? Or Everywhere? Because around here there is constant complaint about the lack of discretion that Judges have - granted I'm talking about state superior Court for the most part, which is why I asked.

[Daniel]

I really like Fitz'a argument that Libby could not have forgotten an important thing. Oh how I wish that were true!
Every three months I carefully place my estimated tax forms in a safe and unforgettable place, and three months later I can NEVER find them. In the old days this would drive me nuts, every time. Today, fortunately I can print some more with my computer. How I envy Fitz that such things are impossible for him.

You know, he built his case on three contradictions (later down to two) in his remembrances. This may seem like a lot, but it also seems like a lot that the Nifong witness picked out three lacrosse players in her identification.
It seems surprising until you realize that she picked them out of a group consisting entirely of lacrosse players; and at least one of those she picked has convincing evidence that he was not at the party at the time.
Similarly Fitz picked his contradictions out of eight hours of Libby testimony, not at all out of random air. If he had grilled Russert or Miller or anyone else including you for eight hours he could probably find at least that many silly contradictions in remembrances.
Alas, I will miss this case when it is over!

[Chants]

I thought I read somewhere where they stipulated that Dickerson was denying hearing it from Ari.

Posted by: Sue | February 23, 2007 at 08:08 AM

Sue, you are correct. I am wrong. The Dicerkson denial is in evidence.

[Carol Herman]

FROM CAROL HERMAN

PO-FARMER, 100 butt kicks wouldn't pass muster. Falls into "cruel & unusual," except in San Francisco bath houses.

DORF: 28-F? Is this a multiple of 4-F (By reason of insanity, and Catch-22?)

Since Fitz' reBUTTal brought in the "big case," there really wasn't any way for waltoon to cure it. Appeals are based on what's been WRITTEN. And, there's plenty of wording, out there, the Appeals Court can refer to, in dismissing/reversing this travesty of justice.

Then? Who'd be the most surprised? Probably the jurors. With their Ph.D's, unable to guess that their road to stardom will even last as long as Judge Seidlin's.

DECODER RING: Going nowhere

Or? Hum The 12th of Never.

[topsecretk9]

It's plausible there is a juror or two just having a hard time keeping everyone straight ( that's understandable ) and so to make matters easy they asked for pictures.

[clarice]

Jane, I cannot recall the case but the federal mandatory sentencing guidelines were ruled advisory at some point--I think many judges chafed at them, particularly the draconian sentences on drug possession.

[Walter]

Jane,

The Supremes threw out mandatory sentencing guidelines in Washington state, California, and the Federal System. Most judges follow the guidelines on a "voluntary" basis.

Here's a link to some of the guidelines that would apply to this case.

[Jane]

WEll that's good news Clarice, and I loved your comment at the website you linked!

[clarice]

Thanks,Jane.

[Jane]

Obviously I don't keep up on this stuff since it doesn't affect my practice. But the more I hear what goes on in most places, the more I think I'm practicing law on a separate planet.

[Cecil Turner]

Handwriting: male or female?

Kinda sloppy . . . I'd be tempted to buck the odds and go "male." And a serious extrovert, judging from the signature excursions outside the lines.

Yes, your right it's not obvious at all that a juror is asking about the possible mix up by Libby of Russert/Novak.

I suspect it isn't, or they'd have asked for just those. More likely, it's to help jurors pick out whose testimony went with which face on the witness stand (probably to help weighing credibility).

[hit and run]

Rick:
Dear Juror 7

Juror 7?

According to my not-a-transcipt of the deliberations, juror 7 isn't the one I woulda hoped for...

And a seventh say "I gotta pick between a journalist and a politician? Thow 'em all in jail!"

I was hoping for Juror 12:
And a twelfth say, "WTF are we here for again?"

Or 9:
And a ninth say, "Wells sure looked good in that suit and tie"

[Rick Ballard]

Daniel,

It's not the gj perjury trap that really counts. What counts is Agent Bond's explantion concerning the necessary refinement of her and Agent Kirk's notes into something of utility in the 302 plus Eckenrode's refinement of Russert's account into another 302.

The 'deep massage' technique of 302 production should be of some concern to the jury. No massage, no perjury trap. No special treatment for Fleischer and Russert, no corroborating testimony based upon 'prosecutorial needs'.

[Charlie (Colorado)]

BTW, check out Abby Road. Paul is clearly dead.

I don't have to check out Abbey Road: I saw last year's Superbowl half time.

[Carol Herman]

FROM CAROL HERMAN

Dear Daniel,

Fret not. There will be more. This case is just the tip of the iceberg, in a story that will eventually go down like the Titanic.

Which reminds me of a joke. Just before the Titantic "tilted," the bar tender had asked for "more ice." Last caption? TWO MUCH ICE!

The best "halp" for waltoon, who lacks the capacity for V-8 "moments," is to have this jury, at some point, just throw up their hands; and acquit.

You also know none of them have any artistic abilities. Because even the "art history professor," can't draw stick figures they could then use to distinquish just guilt from innocence. Let alone, the "cast of characters" on this island of dispair.

First? It was started, as was Dan RaTHer's raTHer unusual "investigative reporting," to sink Bush's 2004 chances at re-election.

Then? Kerry tossed Wilson "out." But seemed to reserve his "magic cap," given to him by "some CIA dude." Well, maybe it was just a condom from Val's pocket? You'll never know.

Kerry's best kept secret is that he wears a hairnet in bed. And, his magic cambodian hat? Just a threat to Trent Lott. To show that some of the best senate hairdos could have "covers." While, some? NOT.

[Dudley Robertson]

Juror Notes:

Take the two notes together. Seems to indicate an effort to outline the evidence in detail. Who said what when.

Is that good or bad for Libby?

[Charlie (Colorado)]

Remember your assignment to explain the Mayan calendar.

Too short, nice holidays.

[Carol Herman]

FROM CAROL HERMAN

Actually, the most fascinating part of the TWO NOTES, is that the bailiff marked them as COURT DOCUMENTS. For purposes of future retrieval.

And?

It may signify a desire by the jurors to get their hands on Fitz's reBUTTal visual. NOT a very good sign of life for this case, on appeal.

[Walter]

Sue,

Tom mentioned that Dickerson stipulation in a post. I've opined that the defense is better served by having the jury infer from his assertion that he told Gregory that Russert could well have known than by impeaching him with Dickerson. Especially since Fleischer is otherwise impeached by Pincus. So, I've been looking for that stipulation. So far, no dice.

Tom didn't repeat it in his summary the next day, but IIRC he has not changed his original post.

TM, Oh Great One! Your* humble servants are confused by the incomplete glimpses they perceive of your infinite understanding. Help us to achieve oneness!

*My son brought a note home from school yesterday. It reads, in its entirety:

Dear Spike,

Your great!

Love, Tonya

So, do I appreciate the encouragement? Or should I be more concerned about the quality of teacher's aides these days?

[clarice]

Speaking of notes--there's a hot one now on the market from Jackie Kennedy to Joan telling her to stop putting up w/ Ted's outrageous philandering and interfering family.
Woowoo
Throw the bum out

[Sue]

So, I've been looking for that stipulation. So far, no dice.

Thanks. And I think you are right. They are better off thinking Ari told Gregory/Dickerson and impeached himself with Pincus.

[Carol Herman]

FROM CAROL HERMAN

Alas, Walter, anyone who can tell the difference between "your" and "you are" in contraction form; isn't working school rooms, anymore.

And, let me state, as a lay person, that there's a road to hoe, between the jury's return. And, then waltoon's "sentencing hearing." Where I do remember someone, here, mentioning that could be the place where CHENEY SHOWS UP IN COURT TO OFFER A DECENT TESTIMONIAL TO LIBBY'S CHARACTER.

ANd, the bigger mystery? Now, just when can WELLS punt to the Appeals Court, huh? What if that comes BEFORE the sentencing structure is cobbled into place? Huh?

[Anarchus]

Taking the two notes together suggests the jury is trying to create a communications diagram showing the different links between key parties maybe with lines, arrow and dates/times.

If I'm Libby, that's very good. IMHO, the stories of so many witnesses are logically exclusive that the more the jurors examine the case closely, the more likely they are to decide that it's grossly unfair to convict Libby of mistakes (or lies if you prefer) that multiple witnesses have made.