Monday Tuesday Morning Thread

Let me highlight my current hopeful guess from the last post as to what the recent jurors notes may be about, and note that the judge may be on the verge of a ghastly error.

I have not seen the notes, so this is speculative, natch [OK, here is the note in question, from the never-daunted Marcy Wheeler]:

Is the prosecution alleging that Mr. Libby did not make the statement to Cooper as presented to us in the Indictment OR is the allegation that Libby did know Mrs. Wilson worked for the CIA when he spoke to the FBI on 10/14/03 or 11/26/03?

Is the prosecution's allegation in Count 3 that Mr. Libby DID know that Mr. Wilson's wife worked for the CIA when he made statements to the FBI on 10/14/03 OR  11/26/03? (Page 74/75 …"that Mr. Libby did not know if this was true.")

In determining Count 3, are we allowed to consider Mr. Libby's grand jury testimony?

Well - I would say yesterday's speculation was overheated and my following attempt at guesssing what was going on missed the mark, but I'll leave it in after the break.

It has been suggested that we have a very detail- and process-oriented jury.  If that is so, they may simply be pinning down details and loose ends before doing any voting - after all, it would be a shame to vote and then start arguing afterwards about what the vote meant.  So it may be that they are nowhere near unanimity that Libby lied on either date or both dates.

Let me illustrate - here is the relevant intro to the contentious Count Three:

2. On or about October 14 and November 26, 2003, in the District of Columbia,

I. LEWIS LIBBY, also known as "SCOOTER LIBBY,"

defendant herein, did knowingly and willfully make a materially false, fictitious, and fraudulent statement and representation in a matter within the jurisdiction of the Federal Bureau of Investigation...

The jurors question [we have inferred] amounts to, should the highlighted "and" really be an "or".  Why ask?  Well, one or more literal-minded jurors may have argued that they can not remember Agent Bond's testimony to the necessary level of detail - specifically, they may wonder whether Libby discussed Cooper at both FBI interviews, or just one of them. 

Taken literally, if Libby only discussed Cooper at one interview, he can't have lied about him at both interviews.  Furthermore, if the jury can't (beyond a reasonable doubt) agree on which FBI interview included the Cooper discussion, then maybe (one might argue) they can't be unanimous on when he lied.

That seems like an absurd over-analysis of the indictment by the jurors, but that may be all that is going on.

As to the other question - can they consider what was said to the grand jury in evaluating the FBI testimony - it *may* be that the point of the question is that Fitzgerald cited a specific FBI interview in the course of asking a question about Libby's interaction with Cooper, and this citation has provided the jurors a clue as to the date and content of Libby's interaction with Cooper as described to the FBI.

In this scenario, the jury certainly can *not* consider Fitzgerald's characterization of the FBI interview as definitive - although he is an officer of the court, Fitzgerald was not under oath during Libby's grand jury testimony; Agent Bond was under oath at the trial, and her description of Libby's FBI interview must be trump Fitzgerald.

Well - that is just a guess without having seen the note, but if the judge has misinterpreted the question and allows the jury to consider Fitzgerald's paraphrasing of the FBI interview as evidence, he has made a ghastly error.

ERRATA:  Gee, I enjoyed Monday so much I wanted to do it again.  Title corrected.

Comments

[hit and run]

We'll be waiting for you here on Tuesday whenever you would like to join us...heh

[Nick Kasoff - The Thug Report]

Yes, Tuesday. Welcome back to the future, sir.

Seems strange here that they didn't have two separate counts, one for each date. Logically, if a single account accuses him of lying on both dates, and he only lied on one date, he is innocent of that count. Not that I expect the court to hold to that logic ...

Nick Kasoff
The Thug Report

[Jane]

Oh dear, TM has the wrong day? Is there nothing left for us to rely on?

[Jane]

In this scenario, the jury certainly can *not* consider Fitzgerald's characterization of the FBI interview as definitive - although he is an officer of the court, Fitzgerald was not under oath during Libby's grand jury testimony; Agent Bond was under oath at the trial, and her description of Libby's FBI interview must be trump Fitzgerald.

I think you are over-estimating this jury.

[hit and run]

And to think, MayBee almost on Wednesday...

[hit and run]

Jane:
Oh dear, TM has the wrong day? Is there nothing left for us to rely on?

Jane, I rely on a 'good morning' from you.

[Jane]

Awww H&R - where ya been? Working?

[hit and run]

Had other things occupying my mind. Still do. Just checking in and lurking.

[Publius]

Way OT, but it's early:

If Judge Roy Moore can be required to remove the Ten Commandments from his courthouse in Montgomery to keep separate the church and the state, why should not Obama and Hillary be removed from the church pulpits in Selma for the same reason?

[hrtshpdbox]

It's a struggle to put a good spin on a jury that wears silly t-shirts, can't construct a good sentence, and takes too long. I don't expect much when the defense isn't permitted to make its case, and the prosecution veers way off course after failing to make its case (despite being given free rein to do so). And, unfortunately, its difficult to imagine the President willing to take a bold step and end the nonsense soon; I'd guess he's already determined that Libby twists in the wind until January '09.

[Bill Murray]

mmmmmmmmmmmm....... errrrrrrr.......mmmmmmmmmm

stretch................ scratch......rub eyes.....stretch................

mmmmmm.. today looks just like yesterday

[PMII]

It's probably just me, but sometimes it feels like groundhog day (the movie)

[Jane]

I sure hope today doesn't feel like yesterday in the Libby trial!

[Tina]

Interesting site. I have lurked and posted here sparringly for awhile. I agree the jury notes/questions have not made much sense.

[Bill Murray]

I, for one think today is the day. Just a hunch, but I think a very, very few on this jury is tiring rapidly of this charade.

I know I would be, and I also know if I had "reasonable doubt" about guilt, Moses descending from the mount with his stone tablets would never sway me.

[savard]

I don't know about all of you but I'm getting lockjaw chewing on this same bone.

[centralcal]

Good morning Jane. It is always nice to check in in the morning to the aroma of coffee.

Tom M. - please let's not repeat Monday!

H&R I miss you. Can't tell you how much. When the merry-go-round debates last for hours here, I keep looking for you to holler - over here! the fun is over here!

[Jane]

I second that opinion centralcal. If there was ever a time for levity, it is now. FDL has a post up saying "the vultures are circling". It would really bum me out if they were right.

[cboldt]

On the record (right or wrong) that "date unanimity" is a Count One issue, not a Count Three issue.

[centralcal]

Jane: yeah I saw FDL this morning. Problem is the vultures started circling way back when the "leak" investigation started. They have circled and circled, ad nauseum. I no longer pay any attention to them.

I guess the note never hit - what's it called? - Pacer?

[Pofarmer]

That seems like an absurd over-analysis of the indictment by the jurors, but that may be all that is going on.

Three PHD's would put that about right.

[Pofarmer]

why should not Obama and Hillary be removed from the church pulpits in Selma for the same reason?

Because they're liberals and they're better'n us. They don't really beleive that shit.

[clarice]

I think you're right on both counts. Cboldt , I think they are circling back to another count to try to figure out the date.

The LATimes is running a series on the case w/ York arguing the Libby side and some idiot whose name I can't remember, the prosecution's.

Point Counterpoint

[Cecil Turner]

So it may be that they are nowhere near unanimity that Libby lied on either date or both dates.

I'm just reading tea-leaves like the rest, but it seems to me that if they agreed on the other counts, the jurors would most likely pitch this one as unimportant. And it also seems to me the questions proffered to the court are most likely from the majority, not any disagreeable minority. Seen through that prism, the common thread in the notes appears to be an attempt to garner ammunition to support talking points. If so, that (and the time taken) would most likely be an indication of a persistent holdout(s). If it were in fact "vultures circling," it seems to me they'd all be at the bar (the kind where folks drink . . . not where lawyers argue) doing the post-game show.

[centralcal]

Cecil, I think you are right. The longer this has taken, the more I think that there is division in the jury -- and I think there is more than one lone holdout.

At some point, they will have to tell the court that they are hung.

[Jane]

Cecil,

Lawyers sometimes argue at the bar you drink at, too.

[jsyk]

I got counseled by a lawywer friend of mine last night to ignore jury notes. You can't tell what is going on from them. We don't know anything until they come back with a verdict.

[Pofarmer]

Oh well. If this is ever over, I see the left has it's scandal generators fired up on several other points. It would be nice if they would actually debate policy. Except they don't have any, so that's kind of moot.

[Sue]

The left is waiting for this trial to be over so they can start their next campaign. The investigation into who leaked actual covert operatives to the LA Times. Right? Right?

chirp...chirp...

Never let them fool you that this about the leaking of a covert operative. It is about taking down the Bush/Cheney administration.

[capitano]

Blogger Connecting the Dots says someone should break the news to the Libby jurors that they don't have a lifetime appointment.

[Pofarmer]

I think I've figured out the obstruction charge and materiality . Libby's testimony obstructed the investigation that he was the first leaker and that Cheney had ordered him to out Valerie Plame. Probably had a hit out on Joe too, even though I see that's not charged.

[secarr]

Now, now, Pofarmer, the left does have a policy. It involves taking as much of other peoples money (taxes) as possible in order to perpetuate (or buy) their own power at the added expense of your freedom. It is the one thing they are consistent about.

[Nick Kasoff - The Thug Report]

Yeah, sure, this is a horrible scandal. Meanwhile, Congressman William Jefferson is nearly a member of Homeland Security Committee, and has asked a federal court to return documents seized in a raid last year. Seems like he should be the real scandal right now, not Libby.

Nick Kasoff
The Thug Report

[rarango]

How many plamiacs does it take to....

Oh wait, wrong question.

How many Plamiacs think that in the event of a hung jury or not guilty verdict, congress will investigate the leak? Nahhh..they have Walter Reed AMC in their sights.

[Jane]

From FDL:

Here are the questions:

Is the prosecution alleging that Mr. Libby did not make the statement to Cooper as presented to us in the Indictment OR is the allegation that Libby did know Mrs. Wilson worked for the CIA when he spoke to the FBI on 10/14/03 or 11/26/03?

Is the prosecution's allegation in Count 3 that Mr. Libby DID know that Mr. Wilson's wife worked for the CIA when he made statements to the FBI on 10/14/03 OR 11/26/03? (Page 74/75 …"that Mr. Libby did not know if this was true.")

In determining Count 3, are we allowed to consider Mr. Libby's grand jury testimony?

This is the same question they've been struggling with since their first question, it seems. There's so little in the actual allegation that they're having a hard time getting their teeth into it.

[Tom Maguire]

We'll be waiting for you here on Tuesday whenever you would like to join us...heh

Yikes! Friends don't let friends blog without drinking. Coffee, in the morning that is.

[Bill Murray]

Right on secarr.
Reminds me of the joke of two attorneys walking to court and meet the homeless man.
The conservative attorney gives him 20 bucks and his card, tells him to look him up and he will help find a job.

Strolling further they meet another homeless man. The liberal attorney gives the man directions to the welfare office, takes 20 bucks from the conservative attorney's pocket, gives 5 bucks to the homeless guy and keeps 15 bucks for admin fees.

[Tom Maguire]

I have lurked and posted here sparringly for awhile.

Spar with H&R. Float like a butterfly, sting like a bee..

[jsyk]

Those questions don't look that bad to me. Certainly don't justify all the speculation yesterday. I have no idea why Walton implied in court that the jury had concluded Libby lied on one of the dates. I don't get that from these questions.

[Jane]

So the jury wants to consider the outing of Plame in both these questions, and that issue is not before them.

Is that a correct read on things?

[Charlie (Colorado)]

If Judge Roy Moore can be required to remove the Ten Commandments from his courthouse in Montgomery to keep separate the church and the state, why should not Obama and Hillary be removed from the church pulpits in Selma for the same reason?

Because churches aren't courthouses and senators aren't objects of religious veneration?

[boris]

It's time to have the jury paraphrase their interpretation of the charges in plain english. If it doesn't match the actual legalese in meaning, mistrial.

[Jim]

Note for your "Not too important file" that FDL is headquartered in Los Angeles. Also there is Warner Bros., the studio who just agreed to do the Phlame/Wilson movie!!

Justice in America gets closer to politics than True Justice.
George Washington would be astounded!

[secarr]

Jane, I've come to the conclusion that there are some real idiots on that jury, sorely in need of a remedial english course. I don't think that they are concentrating on Saint Valerie, though. This jury KNOWS that Armitage was the "leaker."

[WA Moore]

Is Sylvia on this jury?

[gogeo]

Never let them fool you that this about the leaking of a covert operative. It is about taking down the Bush/Cheney administration...

Maybe I'm getting 'Deliberation Madness,' maybe I've been reading too many of sylvia's posts...but the entire case smells. The fact that Fitz knew from Day 1 who the leaker was, and that he spent so much time questioning Rove, and finally ended up charging Libby, in a case where memory is so key, and everyone's memory is so lousy...

Someone asked if Libby had been offered a plea bargain...in exchange for...what?

Is it a coincidence that those most investigated were key aides to Cheney and W? Is it really just about 'getting' the administration, and is Libby on trial because he refused to 'roll over?'

You see? I'm starting to sound like sylvia, but this sounds plausible to me.

Filing a case this weak is not about justice. Fitz's comments from Day 1 suggest this case is about, indeed, bringing down the administration.

If true, that's a pretty potent commentary on W's 'turn the other cheek' mentality.

[boris]

If Clarice had masterminded a covert op to have Cecil and Charlie insert me into the jury, this is exactly the kind of disinfo I would be using to tie the deliberations into knots. You know what I'm talking 'bout.

[Patrick R. Sullivan]

Wells should request a mistrial. This jury is so confused they don't even understand what crimes are being tried.

[Other Tom]

Totally lost, and the starter Bloody Mary hasn't helped. Do we know anything about how these questions were anwered, or have the answers not been worked out yet?

I, too, find these questions difficult to square with much of the discussion from various quarters yesterday.

[clarice]

boris, it's perhaps time for the judge to tell the jury that if the allegations are unsufficiently clear to be meaningful, they should acquit on them. If is the prosecution's job to frame the issues in a may that normal people can make sense of them.