Monday Post-Game Show

Let's have a Monday post-game thread, and do check the Firedog UPDATE - apparently the jurors sent out a note suggesting they are confused about whether they need to find that Libby lied in both FBI interviews or just one of them, and as the discussion evolved observers formed the possibly-mistaken impression that the jury had in fact concluded that Libby had lied on at least one of those dates.

In reverse order, the key update:

UPDATE:  We are now hearing that Walton may have been engaging in hypotheticals and there is no indication from the note that the jury has reached a finding of fact, but it's hard to know because we were listening to them argue about something we hadn't seen.  More as we know it.

MSNBC is mentioned as having a hand in this - if David Shuster, Fabulist, is involved, relax.

Here we go, with the FDL of today's action:

Morning questions (held over from Friday): FDL 1, 2, 3); Jeralyn Merritt has text of the note and response.

Jockeying over new questions asked on Monday (1, 2)

And finally, "Guilty?", with the UPDATE noted above:

It was my impression in the courtroom (and MSNBC confirms, based on courthouse sources) that there are three new separate questions, all about Count 3, the Cooper false statement charge.

At one point, I believe Walton said (and others who heard it confirm that this was their impression as well) that the jury has reached a unanimous decision regarding the fact that Libby lied.  Walton had issued some instruction, however, that they need to decide that he lied on October 14th and November 26th dates (both FBI interviews), but now says he should have used the word "or" instead of "and" — i.e., if the jury all agrees that Libby lied on either of these dates, they have reached a unanimous guilty verdict.  (The indictment itself says "and.")

Well - if this jury can't find reasonable doubt on the Cooper charges, I'm a beaten man.

PUTTING ON A HAPPY FACE:  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 into 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...

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 that Libby may have lied (or not).

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.

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.

That said, I would love to see a note that I wanted to spin down, rather than up - a jury note along the lines of "Was Fitzgerald involved with the Duke debacle?" would be a real mood-lifter.

A MOOD LIFTER!  Here we go, from Reason: "The Madness of Patrick Fitzgerald".  Yeah, but when I write "Fitzi's Dishonor", you will see the wrath of a righteous man.  Of course, talk is cheap, and it's been a week now...

FOR PUNTERS: Libby at Intrade.