Who Stole the Strawberries ?

TM is still apparently locked out. JOM has been transfixed by what appears to have been a Fitzbreakdown during closing argument. "Who stole the strawberries?" the crowd cries out.(We are a literary crew.)

This morning the defense signalled a belief that the prosecution would attempt to exceed the boundaries of appropriate rebuttal, and from the often garbled summaries we are reading he appears to. Will the defense be able to use these missteps to get further jury instructions and perhaps even a sur-rebuttal? Maybe.

Per fdl this is how the day ended:

"

Walton: Sometimes during course of argument. Lawyers say things they don't mean to say. I want to say a couple of things to make sure. Reference to AG guidelines, those were admitted for a limited purpose, so you could assess whether Fitz' interaction was consistent with those guidelines. Argument that Libby would have been aware of those guidelines. There is no evidence before you [snipping FDL profanity].Walton THe truth of whether someone could be harmed based on disclosure of covert identity should not be dismiseed. What is relevant here is what, if any impact, things had on his state of mind.

Walton Considering the hour, we'll recess at this time. Same time tomorrow. I hope my voice will hold out. I've been fighting a cold, my throat is being challenged. Based upon my calculation, it'll take 1.5 hour, I'll give you half, then give you the other half. With that I would hope that sometime before 11 the case will be submitted to your for your proceedings. Continue to avoid havign contact with anyone associated with, also with media coverage of this case. I trust you will continue, and have not had any contact with media coverage. I assume it hasn't happened. I implore you to continue to avoid media coverage."

Clarice Feldman

Comments

[Patrick]

1.5 hours for instructions. Ouch. It will be hard to keep the attorneys awake for that, much less the jurors.

[james]

Fitz is a raving moonbat. I kind of suspected, but I did not think he would come out and display it for all the world to see.

[Joe Gloor]

And so ends the prosecution's case.
Not with a bang or a whimper, but with a nervouse breakdown.

[james]

"THe truth of whether someone could be harmed based on disclosure of covert identity should not be dismiseed."

What? Sounds like Walton gave up on trying to tell the jury not to even think about Plames status.

[michaelt]

So both sides get 45 minutes tomorrow?

Who goes first?

[clarice]

I don't know what this means:"Based upon my calculation, it'll take 1.5 hour, I'll give you half, then give you the other half. "
It sounds like perhaps Fitz has 45 minutes left and then Wells gets a 45 minute sur-rebuttal, but he could be referring to arguments on verdict forms and jury instructions.
If anyone knows, I'd appreciate it.

[Ralph L.]

From the comments at FDL, Mickey:
"I’ve been lots of places, seen lots of things, but I got to say that an hour of Patrick Fitzgerald is right up there with Machu Picchu and the Forbidden City. It’s a rare moment when you just know you’re experiencing something that’s going to be in a history book"
Machu Picchu and Peking: Oxygen-deprivation and tyrannical bloodletting. It fits.

[topsecretkk9]

--What? Sounds like Walton gave up on trying to tell the jury not to even think about Plames status.--

James

I think that's just a typo - I think he said the opposite. Should be dismissed - should NOT be considered.

[Patrick]

Clarice,

I think Walton is talking about jury instructions. He will read them to the jury, but take a break in between.

[vnjagvet]

That means one hour and a half for Judge Walton to read jury instructions. He will break it up into two 45 minute sections. The jury will get the case at 11 am. IOW, the jury retires to the jury room then.

Then it must elect a foreperson and begin the process of reviewing the evidence.

Unless something is unusual, it is unlikely to reach a verdict tomorrow, IMO.

[lurker]

There is no evidence before you [snipping FDL profanity].Walton THe truth of whether someone could be harmed based on disclosure of covert identity should not be dismiseed. What is relevant here is what, if any impact, things had on his state of mind.

Huh?

No evidence before the jury of what?

The truth of someone could be harmed based on disclosure of covert identity...not dismissed? The only proof is that Armitage tape. And Fitz failed to prove that Libby harmed Plame or anyone else on the disclosure of covert identity. Since Walton told the jury to completely disregard the issue of Plame's identity, now he's telling the jury that they need not dismiss this issue.

Is this grounds for appeal?

[clarice]

In case you are just coming to this, I will repeat from Libby's filing today which cboldt has posted:

"The Court has allotted each party three hours for its closing argument. The government intends to use one-third to one-half of its time for rebuttal. Although we do not suggest that the government will engage in deliberate impropriety, the length of its proposed rebuttal raises concern that it may reserve crucial contentions until that argument, when the defense will have no chance to respond. In light of this concern, we submit this brief to alert the Court and the government to the relevant principles that govern rebuttal argument. To the extent the government's rebuttal violates these principles, we will object, seek appropriate instructions, and if necessary request surrebuttal.

ARGUMENT

Fed. R. Crim. P. 29.1 addresses the order of closing arguments. The Advisory Committee Note states: "The rule is drafted in the view that the fair and effective administration of justice is best served if the defendant knows the arguments actually made by the prosecution in behalf of conviction before the defendant is faced with the decision whether to reply and what to reply." Courts have interpreted Rule 29.1 and the common law principles on which it rests to

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Case 1:05-cr-00394-RBW Document 299 Filed 02/20/2007 Page 2 of 4

mean that "[a]s a general rule, Government counsel should not be allowed to develop new arguments on rebuttal, but should be restricted to answering the arguments put forth by defense counsel." Moore v. United States, 344 F.2d 558, 560 (D.C. Cir. 1965); see, e.g., United States v. Steele, 685 F.2d 793, 802 (3d Cir. 1982). "[T]he primary purpose of the rule announced in Moore is to protect defense counsel from surprise." Hall v. United States, 540 A.2d 442, 448 (D.C. 1988); see, e.g., United States v. Gray, 292 F. Supp. 2d 71, 91 (D.D.C. 2003) (same).

Courts have found government rebuttal arguments improper when they have presented new theories or interpretations of the evidence. 1 In United States v. Russo, 74 F.3d 1383 (2nd Cir. 1996), for example, the court found improper introduction of a new chart column, which reorganized information already in the record, because "[t]he prosecutor took a step beyond the existing evidence to create a new line of argument." Id. at 1396. In United States v. Gleason, 616 F.2d 2 (2nd Cir. 1979), calculations introduced for the first time in rebuttal effectively confronted the defendant with "a new theory (albeit based on record evidence) at almost literally the last minute of a long trial," and thus "[f]airness would dictate that a copy be furnished to [defendant] well enough in advance of its use to permit a reply." Id. at 26. And in Steele, the government's rebuttal introduced a new factual interpretation, supported by a chart, and thus "denied the defendants the opportunity to respond and rebut [its] contentions." 685 F.2d at 802i see also, e.g., Bailey v. State, 440 A.2d 997, 1000-04 (Del. 1982) (reversing conviction where prosecution "sandbagged" defense by reserving bulk of argument until rebuttal); Presi v. State, 534 A.2d 370 (Md. Ct. Spec. App. 1987) (reversing conviction where prosecutor referred to

--
1 Other forms of improper argument, although not peculiar to rebuttal, are particularly likely to cause prejudice and lead to reversal at that stage, because defense counsel have no opportunity to respond. See, e.g., United States v. Holmes, 413 F.3d 770, 776 (8th Cir. 2005); United States v. Carter, 236 F.3d 777, 793 (6th Cir. 2001).

2

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Case 1:05-cr-00394-RBW Document 299 Filed 02/20/2007 Page 3 of 4

financial records in rebuttal that had not been addressed in initial prosecution closing or in defense closing).

A recent case from the United States District Court for the Southern District of Texas demonstrates the limits on rebuttal argument. In United States v. Nguyen, 2006 U.S. Dist. LEXIS 36401 (S.D. Tex. June 5, 2006), the court granted a new trial because of the government's improper surprise rebuttal. The rebuttal argument turned on the flight itinerary of one of the defendants, which had been mentioned only in passing during the trial. Although the rebuttal argument responded to a defense argument that the defendant was at the scene of the drug transaction as a bystander rather than as a participant, the court found that "the government had ample opportunity to engage this argument during its initial closing." Id. at *3. Because the government waited until rebuttal to make an argument it could readily have made in its initial argument, and thus denied the defense an opportunity to respond, the court concluded that even surrebuttal (which it had permitted) did not cure the prejudice. See id. at *5; see also United States v. Nguyen, 2006 U.S. Dist. LEXIS 37142 (S.D. Tex. June l, 2006).

To ensure that Mr. Libby's right to a fair trial is protected, we will monitor the government's lengthy rebuttal argument closely in light of the limits set out above, object where appropriate, and if necessary seek curative instructions and surrebuttal."

http://noeasyanswer.blogspot.com/

[topsecretkk9]

Lurker

I hnesty think she was typing too fast and the meaning is the opposite - should be dismissed, should NOT be considered.

[lurker]

topsecret,

Ah, I think you are right. Do NOT consider the issue of Plame's identity since the status of her identity is not considered part of this case.

[bjc]

I am unclear as to whether there will or will not be a rebuttal from Libby's team. Can anybody enlighten me?

[Feedup]

Clarice,

Did today play out like you imagined?

Where do you think everything stands?

Thanks!!!

[granny]

I liked this comment at FDL; and no, it was not signed EW:

"Dear Mr. Fitzgerald, I’m in my early 50s, but I have not yet gone through the “change” and would very much like to have your baby. My husband understands and approve. I have plenty of money for fertility treatments. Please let me know, Yours truly, litigatormom"

[JM Hanes]

Shoot, if it means giving the prosecution 45 minutes to rehabilitate Fitz's rebuttal, I might almost be inclined to take a pass if I were the Defense. OTOH, I can see how it would be hard to resist the stew Fitzgerald just served up:

"Eye of newt, and toe of frog,
Wool of bat, and tongue of dog,
Adder's fork, and blind-worm's sting,
Lizard's leg, and howlet's wing,--
For a charm of powerful trouble,
Like a hell-broth boil and bubble.

I don't see how TeamLibby could have even imagined a better way to close out the day, than with the Judge Walton admonishing the jury not to take Fitzgerald's argument to heart.

[Patrick]

The electronic markets are predicting a conviction. At first, I thought that only reflects the poor coverage of the media. However, I assume that the population of people actually betting on that trial is quite small, so wouldn't many/most of them be reading the coverage on the blogs? I wonder. Also, if I understand the terms, conviction means "on at least one count," so the bar isn't that high.

[vnjagvet]

"dismissed" could have been "discussed".

If it was, that would make sense.

The defense asked for that instruction at the sidebar, I am pretty sure.

[Patrick R. Sullivan]

'Sometimes during course of argument. Lawyers say things they don't mean to say.'

What a wuss Walton is! Fitz meant to say every word of it. He knew he was going to lose, and pulled out all stops.

The question is why Walton allowed it. I wouldn't be at all surprised to see a motion for a mistrial from the Defense.

[boris]

Walton: "Sometimes during course of argument. Lawyers say things they don't mean to say."

Should be applied to Libby then. Dismiss the case judge.

[james]

topsecret

So, Fitzgerald gets to tell the jury that people are dying because Libby leaked, and the judge let's it slide.

I assume the Libby team will ask for a new trial, based on the doc clarice has shown.

[clarice]

"No evidence before the jury of what?" that Libby knew the DoJ guidelines limiting subpoenas to reporters. Fitz tried to argue that Libby named Russert knowing that it would be hard to get reporters to talk. He picked an odd place to argue that as Russert spoke to the FBI w/o a subpoena as we all know--and then pretended to fight one.

feedup, I have been traveling all day and arrived home a short while ago. All I know about the closing arguments is what has been posted here.
I think the argument is weak and the prosecutor nutz and the appointment unconstitutional..so while I hope the jury is rational enough to acquite, if they do not, I believe the Ct of Appeals or SCOTUS will act.

I also think if there were any justice at all Comey and Fitz will someday be called to account in some significant way for this travesty.

[Patrick]

I do not think either side will be getting another shot at the jury. Waltons curative instruction covers his rear end regarding Fitz's improper argument, and Fitz backtracked. The time Walton referred to is for instructing the jury on the law.

[JM Hanes]

vnjagvet:

If Judge Walton was just referring to jury instructions, I'm not clear what he meant by "I'll give you half, then give you the other half." The prosecution & the defense aren't involved in delivering the instructions, are they? Or is there some other element of the process I'm missing?

[steve]

So I'd like to ask the lawyers: How hard is it to sit still when the opposing counsel starts pulling stuff like Fitz just did? Do you just hope the jury is turned off by it? Do you object? Or do you move for a chance to respond or for a mistrial?

[Jane]

I missed everything. Before I go back and look, are we feeling upbeat or not tonite?

[clarice]

***acquit,**********

[Other Tom]

I'd be very surprised if there were any surrebuttal. I can't understand from the non-transcript, but I believe Walton is talking about jury instructions, and as someone said, he's allocating time for argument about some of them.

I know it sounds like Fitzgerald is over the top, but it's not unusual for rebuttal arguments to skirt the edges of what's allowed. I think the case against Libby is pretty strong and pretty well presented, and in this venue it would be very surprising to me if he were to walk. Sorry to say it.

FWIW, someone has reminded me that the judge sanctioned Clinton for civil contempt for his lies. No issue of materiality, and no jeopardy.

[clarice]

***acquit,**********

[Other Tom]

Steve--it's hard as hell, about the hardest thing I can recall doing in the practice of law, other than having an adverse verdict come in.

[topsecretkk9]

Man, how disingenuous

--Don't you think FBI desesrves straight answers. --

when you think about Armitage withholding his Woodward chat and NO indictment.

[boris]

are we feeling upbeat tonite?

With the prosecution jumping around like they've got ants in their pants with their hair on fire it sure looks like they're not happy. Works for me.

[Alcibiades]

I think Andy McCartney should be deeply ashamed of himself if he ever reads this not a transcript.

I spent a long time being really cautious about believing that Fitz was a moonbat based on AM's professional opinion of his colleague.

This just passes everything, however.

Joe Wilson is a saint, Libby is eeeevvil for treating VP, not as a person but as an argument, the Iraq War is lie - so that's ground to convict just there.

This is a sad day in American justice.

[clarice]

From the "good leaks bad leaks" of his presser, Fitz signalled his deification of the dynamic duo and their Soros funded, Kerry backed VIPers. No one should be surprised by this show today.

[steve]

Through the blurry haze of the blogscript, it sounded like Fitzgerald was actually blaming Libby for the leak of Plame's name. In theory, that should help discredit his case. But with this jury, will the Armitage tape and Woodward's testimony be salient? Did the defense hammer on that in their closing to make sure the jury got it that Libby didn't leak first?

[Rick Ballard]

Jane,

It was pretty much standard closings until Fitz's rebuttal. In the last five minutes he provided work for the appeals courts (should Libby be convicted) for a year or so.

He also provided proof that he is an unscrupulous man who is undeserving of the office he holds. Coincidentally he provided extraordinary proof that cooperation with government agents is an unwarranted risk.

They don't need help - they can just make it up on their own.

[Gideon]

Wish someone would report the demeanor of the jury during the closing.

[Patrick]

JMH
the instructions are largely agreed to by both sides, they simply tell the jury what the law is, i.e. what the jury must do in order to convict. The attorneys argue about some of the instructions on the margins, but overall, they tend to be standard. The Judge simply indicates he will take a break half way through reading the instructions, and pick up where he left off, and complete them.

Jane, I think it's a wash. For me, the crucial issue is whether the jury recognizes that Libby was focused on responding to Wilson's charges as a whole, not focused solely on Wilson's wife.

Clarice, on appeal, I feel his best argument is the constitutionality and legality of the appointment. I would be very surprised to see Walton overturned on any of his rulings during trial. But, I've been surprised before.

[Feedup]

Clarice,

Can you clarify your last post...Please

[vnjagvet]

JMH:

"I'll give you half, then give you the other half."

I believe he was addressing that remark to the jury. Half refers to the instructions.

That is why he said something to the effect that he hoped his voice would hold out.

At least that was my take.

[Barney Frank]

Other Tom,

--Steve--it's hard as hell, about the hardest thing I can recall doing in the practice of law, other than having an adverse verdict come in.--

If you think it's hard to take as a lawyer you ought to try it from the clients chair sometime.

[steve]

OT: Well, I'm glad you lawyers are human, public opinion to the contrary notwithstanding. I know I had to contain my frustration with similar antics as a high-school debater, where the stakes were several orders of magnitude lower.

[Alcibiades]

vnjagvet

Do you mean half for the jury to ask the judge questions about the instructions?

Or what?

[boris]

The point of the Fitz histrionics was to get the jury to punish Libby for doing what was on the defense tape of Armitage talking to Woodward. Out of all the players in this sham scam, they were the only two who placed any significance to the wife detail early on.

If the jury gets that, they'll come back with "How much can we award Libby in punitive damages?".

[Rick Ballard]

Alcibiades,

The "judge" was indicating that his voice wouldn't hold up so he's going to do 45 minutes, then break, then do another 45 minutes.

[Other Tom]

No thanks, Barney. Having been a lawyer I hope to hell I never become a client. Among many other things, the money flows in the wrong direction.

[steve]

Boris: That could happen, and I hope you're right. There's also a chance that a bunch of anti-Bush jurors, predisposed to see nefarious conspiracies, will seize on Fitz's closing to motivate construing everything in the government's favor.

[clarice]

feedup, If you go to the right side of the main page, you will see Fitzpatrick press conference. It's what he said when he indicted Libby. In it he made clear that his investigation was not to determine who leaked Plame's identity. He regarded leaks from Wilson and his supporters as "good leaks" and those from the WH responding to those base charges as "bad leaks" and only "bad leaks counted. Therefore, he never, for example, sought to interview Kristof. In filings noted in the AT article posted by Syl for me last night he indicated that Wilson and [redacted} had spoken to Kristof and Pincus . Redacted is clearly Plame, and he had no trouble at all w/ that.

He viewed Wilson, the serial liar, as a noble "whistleblower" and his job to go after whoever he believed undercut his blarney.

[Holly]

Fitz' closure made me physically ill. I wonder how many other defendants have been similarly railroaded by Fitz.

[Sara (Squiggler]

Off Topic, and should go to its own thread when TM quits banging his head.
Poll: Americans believe We should stand behind President Bush during Wartime

The survey was conducted nationwide February 5-7 among a bi-partisan, cross-section of 800 registered voters. It has a margin of error of plus or minus 3.5 percent. The survey was commissioned by The Moriah Group, a Chattanooga-based strategic communications and public affairs firm.

The survey shows Americans want to win in Iraq, and that they understand Iraq is the central point in the war against terrorism and they can support a U.S. strategy aimed at achieving victory, said Neil Newhouse, a partner in POS. The idea of pulling back from Iraq is not where the majority of Americans are.

* By a 53 percent - 46 percent margin, respondents surveyed said that Democrats are going too far, too fast in pressing the President to withdraw troops from Iraq.

* By identical 57 percent - 41 percent margins, voters agreed with these statements: I support finishing the job in Iraq, that is, keeping the troops there until the Iraqi government can maintain control and provide security and the Iraqi war is a key part of the global war on terrorism.

* Also, by a 56 percent - 43 percent margin, voters agreed that even if they have concerns about his war policies, Americans should stand behind the President in Iraq because we are at war.

* While the survey shows voters believe (60 percent- 34 percent) that Iraq will never become a stable democracy, they still disagree that victory in Iraq (creating a young, but stable democracy and reducing the threat of terrorism at home) is no longer possible. Fifty-three percent say it's still possible, while 43 percent disagree.

* By a wide 74 percent - 25 percent margin, voters disagree with the notion that "I don't really care what happens in Iraq after the U.S. leaves, I just want the troops brought home."

* When asked which statement best describes their position on the Iraq War, voters are evenly divided (50 percent - 49 percent) between positions of "doing whatever it takes to restore order until the Iraqis can govern and provide security to their country," and positions that call for immediate withdrawal or a strict timetable.

* 27 percent said "the Iraq war is the front line in the battle against terrorism and our troops should stay there and do whatever it takes to restore order until the Iraqis can govern and provide security to their country."

* 23 percent said "while I don't agree that the U.S. should be in the war, our troops should stay there and do whatever it takes to restore order until the Iraqis can govern and provide security to their country."

* 32 percent said "whether Iraq is stable or not, the U.S. should set and hold to a strict timetable for withdrawing troops."

* 17 percent said "the U.S. should immediately withdraw its troops from Iraq."

The survey also found that voters thought it would hurt American prestige more to pull out of Iraq immediately (59 percent) than it would to stay there for the long term (35 percent). Public Opinion Strategies "scored the best win-loss record among the major polling and media firms in the 2004 election" and was named Pollster of the Year in 2002.

[Jane]

It was pretty much standard closings until Fitz's rebuttal. In the last five minutes he provided work for the appeals courts (should Libby be convicted) for a year or so.

Pray tell. BTW I caught a bit of hardball at the gym and Shuster and Matthews were talking about a pardon, so I figured it went okay.

[Feedup]

Clarice,

Thanks!

Just too much data for my old brain!

[topsecretkk9]

PS. I feel bad TM is locked out of his own blog -- like the time his keyboard fritzed and he sounded like he had been to the dentist with gobs of cotton in his mouth. I hope he's able to break in soon.

[Sara (Squiggler]

Boris -- wasn't there some reference that State might have been interested but no evidence OVP was? (I think it was in reference to Wilson Story vs. Wilson/Plame story.)

[Rick Ballard]

"This is a sad day in American justice."

Did a client's check bounce?

'Cause otherwise it's just another day in the legal process game.

[Shel]

Long time lurker here. I really hope that Fitz came across as rabid and frothing in front of the jury as he did in the Not-a-transcript.

This whole trial was ridiculous. The charges anemic and Fitz? I am still searching for an adjective for him--though the comparison to Captain Ahab seems very apt.

Thanks for all your insight.

[Alcibiades]

OT:

Did you guys hear that Edwards recently told a bunch of Hollywood liberals that Israel is the world's greatest short term threat to world peace:

The aggressively photogenic John Edwards was cruising along, detailing his litany of liberal causes last week until, during question time, he invoked the "I" word -- Israel. Perhaps the greatest short-term threat to world peace, Edwards remarked, was the possibility that Israel would bomb Iran's nuclear facilities. As a chill descended on the gathering, the Edwards event was brought to a polite close.

[Sara (Squiggler]

From Jeralyn:

Cathie Martin is an important witness. Except for the one time with the Vice President and Libby, she never had another conversation about Mrs. Wilson. Might be different for the State Department, but for the OVP, the wife was never part of the message.

[vnjagvet]

alc:

The Judge reads to the jury a series of instructions on what law they should and should not consider. In a case of this complexity, that takes a while.

Both sides will have submitted a complete set of proposed instructions to the Judge.

He then decides which ones to give and which ones to reject. Each side then will object to some of the ones he gives and some he chooses not to give. These objections are necessary to preserve appeal rights in the event an important instruction is wrong or missing.

All of this instruction stuff is outside of the jury's presence until he reads the ones he has decided on.

In some courts, the written approved version of instructions are sent out with the jury. In others, the jury must rely on its memory and notes. The latter is not easy.

[lurker]

OT over at MacRanger's:

Court holds up Military Commissions Act

However, Patrick "Leaking" Leahy plans to accelerate efforts to pass a revision to the law that would restore detainees’ legal rights.”

Yah, right. Will he get the votes?

Amazingly, we haven't heard him leaking the classified NSA information just yet.

[Michael]

Those of you who shudder at the MSM coverage of this trial can thank your lucky stars that you're not German.

For chuckles I went to check out the basically sedate, middle-of-the-road Frankfurter Allgemeine Zeitung to see what up from the kraut POV. The gist of the article is that this trial has shined a light into the creepy dark recesses of the White House and especially Cheney's office. It bides its time demurely until paragraph 13 (of 14) to mention what Libby is actually charged with.

Here are some quick quotes in quicker translation, not necessarily building a theme but demonstrating, say, a pattern of veracity or verisimilitude:

"But even if Dick Cheney did not appear on the stand...the trial gave extraordinary insights into machinery of the White House which Cheney, particularly, otherwise knows how to conceal."

"Just months after the beginning of the war, as it was becoming evident that things weren't going as planned, the former American Ambassador Wilson wrote in an NYT op-ed that intelligence agency reports on the existence of WMD in Iraq were at least in part false".

....in medias res as I translate, I apologize that I become bored. The article is not slanted enough to justify extensive citation.

I do have a question, though. Is it accurate that the Wilsons have accused Rove and Cheney of a revenge plot in civil court? That one struck me as a howler, but maybe I've just missed something.

[topsecretkk9]

I sure hope MaidMarion was able to go to the courthouse today.

[boris]

State might have been interested but no evidence OVP was?

Well the INR memo and the Armitage Woodward tape esatblish State interest in Val. Their is a substantial paper trail for OVP interest in Joe but none for Val. Seems like a fair claim but you may recall something more specific.

[Rick Ballard]

Shel,

The comparatives currently available are:

1. Javert

2. Clouseau

3. Clouvert

4. Captain Ahab

5. Captain Queeg

6. Jabber the Nut

I lean toward a composite although I would give Captain Ahab and/or Javert top billing if forced to choose.

[JM Hanes]

Other Tom:

I does sound (read) like Zeidenberg did a yeomanly job of presenting the Prosecution's case. He tied it all together effectively by working his way through the witnesses and pounding away at "9 conversations with 8 people. He claims to remember none."

I thought TeamLibby pretty much managed to hit the most relevant points though, and Fitzgerald's rebuttal struck me less as skirting the issues of what's allowed than as almost off the wall. Perhaps it was less disjointed in person. If he persuaded the jurors that Libby (and Cheney!!!) thought Val was important all along, he might be able to pull off a conviction. Couldn't believe he actually went back to throwing sand, though.

I wouldn't dream of trying to predict what the jury will do, but if anybody was begging for jury nullification, I'd say it was Fitzgerald asking them to nullify the defense.

[lurker]

York's article about whether Fitz proved his case against Libby...

The Libby Trial: Did Fitzgerald Prove His Case?

[Ralph L.]

My 3 juries (that I was on) convicted on 2 armed robberies and a crack sale with maybe 5 minutes instruction total, no exhibits in the jury room. 15 & 6 years prison time (third a juve) after one day trials. Money talks. and talks.

[Alcibiades]

In others, the jury must rely on its memory and notes. The latter is not easy.

Technically speaking, what is the point of that? We're a note taking society.

[clarice]

Michael, Wilson has such a civil suit against Roce, Libby, Cheney and Armitage which I am certain will be dismissed soon.
Here, if you've missed it is Jeralyn's blog on the defense closing argument:
http://www.huffingtonpost.com/jeralyn-merritt/libby-defense-closing-pa_b_41669.html>Closing

[Sara (Squiggler]

Boris: I meant to quote from defense closing via Jeralyn, but it tracks exactly with what you said:

Cathie Martin is an important witness. Except for the one time with the Vice President and Libby, she never had another conversation about Mrs. Wilson. Might be different for the State Department, but for the OVP, the wife was never part of the message.

[Dwilkers]

I'd put it 60/40 in favor of Libby being convicted on at least one count. There are a a few of reasons, not least of which is the DC jury.

I don't think its right, and I wouldn't vote for conviction if I were on the jury for the simple reason that, from the transcripts I've read, the charges haven't been proved.

If I were a betting man though, and I had to bet one way or the other, I'd bet on a conviction.

[clarice]

I remain optimistic--no convictions.

[Sara (Squiggler]

Clarice, we had a question before you got here on how they could quote about Miller testimony when it appears the Miller counts are OUT.

[Christopher Fotos]

I do have a question, though. Is it accurate that the Wilsons have accused Rove and Cheney of a revenge plot in civil court? That one struck me as a howler, but maybe I've just missed something.

Well Mike, that's Wapo's version anyway last year.:

Former U.S. ambassador Joseph C. Wilson IV and his wife, former CIA officer Valerie Plame, said yesterday that Vice President Cheney, presidential adviser Karl Rove and other administration officials knowingly lied and abused their power to get revenge against the couple for criticizing President Bush's rationale for going to war in Iraq.

btw, I tried to post four times today and couldn't get in. And for the record, every one of my comments advanced the discussion and were quite witty.

[Sara (Squiggler]

I still think a hung jury is more likely than any straight out conviction(s).

[boris]

My prediction ... if the jury is bamboozled enough to go for one they'll go for a bunch. It's more fun to be optimistic though, aquittal or mistrial.

[Rick Ballard]

Acquit on 1,3,5 - hung on 2,4. Watch for Walton to throw a temper tantrum when they hang.

[topsecretkk9]

I think hung jury - I think more in Libby's favor though.

[Christopher Fotos]

My 3 juries (that I was on) convicted on 2 armed robberies and a crack sale with maybe 5 minutes instruction total, no exhibits in the jury room. 15 & 6 years prison time (third a juve) after one day trials. Money talks. and talks.

The single jury I sat on, all the way through a verdict, returned not guilty in a theft case. That was with an all-white jury, a black defendant, and a signed confession. And to this day I am very confident and happy with that result. And btw most of not all of us thought the prosecutor did a better job of presenting the evidence he had to work with than the defense. We thought the defense attorney was disorganized and took all day to make pretty simple points. But we voted for his client anyway.

One random data point.

[cathyf]

So I'd like to ask the lawyers: How hard is it to sit still when the opposing counsel starts pulling stuff like Fitz just did? Do you just hope the jury is turned off by it? Do you object? Or do you move for a chance to respond or for a mistrial?

I'm no lawyer, but I assume that you are looking around the room -- if the judge and jurors are sitting there in slack-jawed horror and astonishment, you just sit quietly and take notes...

[Sara (Squiggler]

I think the following may play big inside jury deliberations:

Wells afternoon:

In a case where what is at stake is a man's reputation and a man's freedom, the benefit of any confusion must go to Mr. Libby. No witness has given any direct evidence that Libby is a liar. There's been no smoking gun exhibit. Circumstantial evidence is good evidence, just like direct, but it must be built on a strong foundation if you are going to convict someone. And it's not here.

GX-55, DOJ letter describing scope of investigation (9/30/03.) It was about the unauthorized leak of possibly classified information to Novak. That was Mr. Libby's state of mind.

[ARC: Brian]

In the last five minutes he provided work for the appeals courts (should Libby be convicted) for a year or so

I asked this in another thread a long time ago, but don't remember getting a reply.

If Libby is convicted on at least one count, what is his next step with regards to incarceration? Can he remain on bond until his appeals are heard or does he go to prison until then?

I know in the case of Marth Stewart she elected to server her term rather than wait for the appeals because it was killing her media empire. In Libby's case it seems to me that he has a built in stopgap of January 19th, 2009.

[PaulV]

If fitz's argument went beyond the pale and justified a mistrial would Walton wait for the jury verdict to see what the verdict is. Libby would be cleared of any counts the jury found him not guilty on. The mistrial would cover only the guilty counts, if any. Otherwise Fitz could get a new shot. Some counts seems so weak he could use Rule 29 after the verdict.

[Other Tom]

The hearing on the defense motions to dismiss are now scheduled to be heard May 23. The Wilson family will discover that Judge Bates is an extremely far cry from Judge Walton, and you can take that to the bank.

Nice opinion out of the DC Circuit re Gitmo. Leahy may gather up his votes, but he'll never get enough to override the veto. That would be a very nice issue around which to frame the 2008 election.

[clarice]

"Clarice, we had a question before you got here on how they could quote about Miller testimony when it appears the Miller counts are OUT"

Don't know. I remember some Fitzgab about it being background or something.My guess--or hope--is that the jury will say they have enough on their plate to deal with what is actually before them in the verdict forms/jury instructions that dealing w/ stuff not for them to decide is a waste of time.

Well, yes, it may be a hung jury instead of an acquittal, but that should end this for good anyway so it won't bother me.

I never saw a case where reasonable doubt seems so clear.

[Syl]

Reading from FDL it seemed to me fitz was talking too fast and raving. but I wasn't there. But throwing stuff out like the numbering of the talking points? Good grief! Makes him sound a leetle bit desparate.

See? See? this used to be a 3 and now it's a 2! That's proof that Libby lied!

And there were TWO streams? See? See? so Miller was telling the truth! Libby Lied! See? See?

I wonder if any of the jurors have a bleeding scalp from all the head scratching.

[Rick Ballard]

I'd like to know the feelings of the juror who layed out more than $200 for T-shirts. It was a nice ante.

[Ralph L.]

What determines if jeopardy is attached when a judge declares a mistrial? Prosecution error only?
I doubt the defense wants one without jeopardy.

[clarice]

cathyf , keeping a poker face is hard work.
So, is not getting sucked into a judge's craziness.
A freind once told me of arguing a case in the Sixth Cirtuit before the notoriously stupid Judge Calabrezi. The judge ate up the opponent's time by insisting a case under the National Labor Relations Act had some social security law relationship. It didn't, and the poor shnook wasted all his time trying to disabuse the judge of that nonsense.
My friend got up, Calabrezi asked the same thing of him, and he (a) wanting to make his argument and (b) knowing the judge's clerk would never let him make such a fool of himself said,"That's a good question, your honor, which unfortunately, I didn't research, but you may well be right."He then proceeded to argue the actual case before the Court.

[Other Tom]

If an adverse verdict comes in on one or more counts, the first thing that will happen is a Rule 29 motion asking the judge to overturn it. The parties brief it and argue it (a few weeks, probably), then the judge decides--my guess would be he would do it fairly promptly after the argument, and that he'll the motion. Then the appeal process begins. Whether the defendant is imprisoned pending appeal is up to the judge, but I am very confident that Libby will be out pending appeal. I have no idea what the timing of the appellate process is in the DC Circuit, but it ain't speedy anywhere. Even if you get a bad verdict this week, there'll be no jail time for a long time to come. At some point I expect we'll see a pardon if necessary.

[topsecretkk9]

Well the link isn't working for me, but here part of the Dean's world feed...

Prediction in the Scooter Libby Trial Dean's World- Libby trial - 47 min 39 sec ago My prediction is that of the remaining charges against Libby that haven't been dropped, Scooter will be convicted of two of the charges. Which may be overturned on appeal, and will... Categories: MBA Libby Trial feed...

[sferris]

Let's hope the jury returns a guilty verdict so we can at least continue probing into Shooter's role. Bring on Cheney.

[clarice]

Ralph, jeopardy never attaches in a mistrial which logically is regarded as a trial which never went to a conclusion.

[Sara (Squiggler]

Ralph: Doesn't jeopardy attach as soon as the jury is sworn in?

There is something called dismissal with or without prejudice, but not being a lawyer, I don't know what would be what.

[Sue]

we had a question before you got here on how they could quote about Miller testimony when it appears the Miller counts are OUT.

Even thought the counts against her were thrown out, her testimony can still be considered when they decide the overall truthfulness of Libby.

[Sara (Squiggler]

See, I didn't know what I was talking about. Thanks Clarice. Does anyone think Fitz would have the cajones to try and retry this case? I cannot even imagine it.

[Other Tom]

There'll be no more probing of Libby for a long time in the event of a guilty verdict, and none at all if there's a pardon. Dream on all you want about Cheney; that's right up there with your 22 imminent indictments and your sealed indictment of Rove.

For any count on which the jury acquits, that's it. For any on which it hangs, there's no issue of double jeopardy--the prosecution can either re-try it or not; it's up to him. Except in this case either the president or the AG will very likely bring it to a screeching halt if it comes to that.

[ARC: Brian]

Even if you get a bad verdict this week, there'll be no jail time for a long time to come. At some point I expect we'll see a pardon if necessary.

Ok, thanks OT, that was my impression as well, but things seem strange in D.C..