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March 02, 2007


M. Simon

No weekends off until a verdict is delivered.

An incentive program if you will.

Plus it gives better odds against jury contamination.

James Malcolm

The Jury asked a bizarre question and I've been waiting for TM to analyze it. Where are all the fanatic bloggers on the question of proof about forgetting?


The jury sent two notes. Here they are for late comers:

As count 1 statement 3 (pages 63 & 64) do not contain quotes, are we supposed to evaluate the entire Libby transcripts (testimony) or would the court direct us to specific pages/lines
We would like clarification of the term "reasonable doubt". Specifically, is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond reasonable doubt.



All the speculation and analysis is on the "movie" thread.

You will find lots of talk there.



The Jury asked a bizarre question and I've been waiting for TM to analyze it. Where are all the fanatic bloggers on the question of proof about forgetting?

Posted by: James Malcolm | March 02, 2007 at 04:47 PM

It's OK--you can get David Corn's take at FR:

Libby Trial: More Waiting, More Jury Notes


I am still trying to wrap my brain around that "reasonable doubt" note.

It almost sounds as if the question has a bit of snark in it. It sounds a little Fitz-like, and that is highly disturbing to me.

I hope my interpretation is way off.

Christopher Fotos

We would like clarification of the term "reasonable doubt"

Holy cannoli.

Where are all the fanatic bloggers on the question of proof about forgetting?

Looking for drink, though some fantatic bloggers and commenters probably have a head start on me there.

But I'll be pondering deep jury mysteries, I promise.

Carol Herman


And, one week later, the jury will go home with nothing to show for their journey through plame and fortune.

While Fitz? He'll play a game of reinvigoration. He'll go after Cheney and Rove. Again. Hot on the trail of finding out who "leaked" into the DEPENDS without permission.


It is a snarky question and hard to interpret w/ all those negatives. But it gives the Judge another shot at the reasonable doubt and memory instructions, the latter being useful to resolve this.

Carol Herman


Nope. Waltoon is home free, Clarice. If the jury finds "guilty on all counts," what kind of an APPEAL could WELLS pull off in a political town that DC is? With everyone reading the WaPo. And, many deciding that "protecting a Jew isn't worth it."

That Waltoon didn't allow Libby a decent defense? Okey dokey. Case gets sent back to none other than waltoon, himself. For 2nd bites of the apple.

Ditto for Fitzgerald as he hops to it and tries to indict Cheney and Rove.

What a scam.

While Ruth Bader Ginsberg may be dying? Per the link to Jan Crawford Greenberg's sense of things. She saw a very weakened Ginsberg in court. And, then what? The icing on the cake, when Bush sends AG Gonzales UP to the HILL for confirmation as a hispanic in the 5th Supreme-O seat?

Hope is for the young. What does experience tell ya?


As to the appellate questions, I think the strongest is the limitation on the impeachment evidence of BOTH Mitchell and Russert; the appointment; and the closing (which I believe was telegraphed by Wells in the May pre-trial heraing).
If the Court agrees on the last, will they find the Judge's admonitions sufficient to correct the error? They usually do, no matter how fictional that is.


But it gives the Judge another shot at the reasonable doubt and memory instructions, the latter being useful to resolve this.

That is very true, Clarice. Thank you.

If there is a hold-out (or holdouts) for acquittal, I hope they have feet of iron.


Since it's a little slow, here's an article with a legal theme. Very fine, IMO:

Who Needs Jacques Bauer?

The subtitle is: The Napoleonic Code is more conducive to counterterrorism than the U.S. Constitution.


It's a very good article, azaghal. Thanks for bringing it to our attention. Maybe PUK can scheme a prize-scam where we give free trips to Paris for suspected terrorists in the US.

glenda waggoner

Sounds like the jury could have benefited from the
memory expert the judge denied. Also, the fact the
jurors even came up with this question sounds like
they ARE "reasonably doubting" this prosecution.
If not, sadly, ? BDS? will be ajudicated in appeal.


glenda, when my wife told me the news that was one of first things I thought--he wouldn't allow a memory expert to testify in a case that's all about memory? While I'm as skeptical as the next about professional experts, a professional's perspective may have been useful.


Well according to this quick google I just did I found this: "The longest modern deliberation was a 2003 Oakland police brutality case where a jury took four months."

So we are just getting started.

Other Tom

I think the fatal flaws in the scope of the appointment are the strongest grounds for appeal. I think the excluion of Mitchell is next. I don't think any other grounds have a chance at all.

I also think Scooter better bring his toothbrush to court next week.

Best spin I can put on the reasonable doubt question is that there's a holdout, and he's a moron. But at least he's OUR moron.

At the same time, we must also note that the person who crafted up the reasonable doubt question is laboring sweatily with English as a second language.


I think the question about reasonable doubt is great news for Libby. One could think it likely that he was fudging, but do we know this beyond all possibility? What proof has the government made - short of the contemporaneous conversations about Plame, that Libby remembered THAT WEEKEND about Plame. The prosecution would have been better off if they had had something of a more concrete nature during that timeframe, like some Libby authored Plame memo during that weekend. But Fitz didn't have any of that.

So how do we know for sure Libby didn't forget? Maybe the guy has early Alzheimers. Or a drinking problem. Or he had a bad fight with his wife. We can use our logic to deduce Libby's a lying fool, but can we really read into his mind and know beyond all doubt - not really. That's why perjury is so hard to prove in general.

Carol Herman


Actually, if this case reaches the Supremes, I'll guess that Clarence Thomas writes the majority opinion. And, he won't be kind to waltoon.

So sad it takes this kind of money to find a peek at justice's ankle.

And, ya know what? I blame Bush! It's his fault for letting Libby suffer. ANd, it's double his fault for putting our volunteer army at risk. WHere he just goes about his business as if everyone else just jumps on their sword for da' man.



I've criticized you for earlier comments about J. Walton. So I suppose it's only fair for me to say that your comment above was cogent, topical and mostly non-inflamatory.

Well done.

I disagree about Justice Thomas, though. He is rarely in favor of expanding/protecting defendants' rights. (And he is far more civil than Justice Scalia.)

(FWIW I think your 'waltoon' references are beneath you. But that's for you to decide, not me.)


Where did the jury come up with the reasonable doubt question? I just found this in the transcript (sorry no link) of Wells' closing argument. (More context at TalkLeft , but here's the money quote.)

Again, there is no smoking gun document. There is no expert testimony that he could not have forgotten.

I mean, nobody took the stand and said, based on an empirical evidence, there is some study that says it's impossible for him to have forgotten in October what he was told in July. The record is barren on that point. There is no type of physiological evidence or scientific evidence. It's just barren.

But the jurors don't have a transcript of the closings. So maybe it just really hit home with one (or more) of them.


Reposted from dead thread

First my rewording of the second question:

We would like clarification of the term "reasonable doubt." Specifically, is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt.

Is it necessary for the government to present evidence that it is impossible for someone to forget an event in order to find guilt beyond a reasonable doubt?

I am reading through the jury instructions and What I don't get is:

1)Does Walton need his eyes check because it is like size 30 text with quadruple spacing - actual text could be compressed to 5-10 pages max?

2)What the difference between obstruction and purjery is?

3)On page 77-78 it talks about that the fraudulent statements have to be material to the case and I don't see how they were. Was any evidence presented to show that it was?

hit and run

Hi, Jeralyn!

hit and run


Jeralyn- Interesting! Just being nosy here- is the transcript from Jason Leopold? Someone was here a few weeks ago telling us that Jason had purchased the transcripts.
I transcripts of Fitzgerald's closing were posted on that Fitzerald blogspot blog as well. I long to see more.


As usual, I agree with Other Tom on his two points for appeal. There were several errors made by the Courts in arriving at the shape of the trial, including the monstrous collusion between Fitzgerald and his prize witness, Russert. Some of those could be found to have created an environment in which a fair trial was impossible. I don’t know enough about those proceedings to give a comfortable suggestion.

In addition to OT’s two, I feel strongly that the wild closing constituted reversible error because it contained reference to “facts” not in the record and, using those facts, it appealed to the passions and prejudices of the jury. Any sober observer would realize that Fitzgerald’s closing was, at the least, unfair. Moreover, there were the rare events of an objection and a “curing” instruction that, in the real world, had no effect. Can anyone here really remember what the Judge said without looking it up? That said, many Courts of Appeal are loath to fiddle with a jury verdict. The will of the people, twelve, ok, eleven, good men and true. Often these seemingly unfair issues are re-categorized either as jury questions or, as would be likely with the closing, harmless error (because of the “instruction”) Maybe we can look at it this way: if Fitzgerald had brought those issues into the trial at any point, he would have opened the door to the “big” case. It is error to have him argue the “big” case and open the door just as everyone leaves. (stop me before I metaphor again)

Finally, and I don’t really mean that, I think that it was reversible error to permit NBC to stonewall all impeachment by the means I have so endlessly described. All the rulings that blocked Libby, including the SP’s failures to go after the other reporters, did not permit Libby the ability to confront the witness because he was denied access to evidence that could impeach that witness’s credibility.

The odds of reversal, in general, do not favor a defendant found guilty by a jury.

As I recall, one of the first things I posted here was my view that this system is, at its very best, unfair.


Jeralyn from TalkLeft:

That's a very intriguing suggestion. If that's the case, how much do you think the judge's handling of the question could influence the line of thinking the jury takes?

Also, I have a question about Libby's level of knowledge and was hoping you might know the answer. Did any prosecution witnesses other than Judith Miller and Ari Fleischer testify that they told Libby or Libby knew either that Valerie Plame was the name of Joseph Wilson's wife or that she had been involved in sending him on his trip?


"Again, there is no smoking gun document. There is no expert testimony that he could not have forgotten."

I agree that question does sound similar to the closing. That lawyer must have made quite an impression - that's why he gets paid the big bucks I guess. The way the juror question is framed, it's in effect asking "Where's the beef?" Or "how do we know it's not possible for Libby to forget and where have you shown us that?". So Libby should be feeling pretty good this weekend.


Other Tom:

Well said. I do think MayBee's hyposthesis may be a better spin, but Jim E. offers a logical counterargument.


As count 1 statement 3 (pages 63 & 64) do not contain quotes, are we supposed to evaluate the entire Libby transcripts (testimony) or would the court direct us to specific pages/lines

OK, so that's this one:

"That Mr. Libby advised Matthew Cooper of Time Magazine on or about July 12, 2003 that he had heard that other reporters were saying that Mr. Wilson's wife worked for the CIA and further advised him that Mr. Libby did not know whether this assertion was true."

So they're still hung up on the Cooper count, which should be the easiest one to acquit, since Cooper's notes essentially agree with it? That really doesn't bode well for Libby getting an acquittal.

Unless, of course, it simply means that they couldn't find the relevant stuff in the 8 hours of transcripts to compare and are trying to do a thorough job.


If Libby had testified he probably would have said ...


No wonder Ms. Merritt is paid the big bucks. The money quote is right. It is exactly what the juror or jurors that are arguing for acquittal are using.



I think the judge may have put his admonition regarding the accidentally inappropriate arguments made by Fitzgerald in writing for the jury.

But, that was probably unnecessary, wasn't it, Pat? This was a unique situation. It is almost certain that no one on this jury has ever been told to disregard things a prosecutor raised in closing. And, with a man's liberty at stake. This is something they wouldn't forget 10 days later. They'd remember it if they were sitting on the beach three months later. Madness, madness, madness.


If a juror or jurors is remembering what Ted Wells said in closing, and using his argument in deliberations, that means he made a connection to at least one juror and when someone feels a connection, they are more likely to dig in.

Barney Frank

Other Tom,

--I also think Scooter better bring his toothbrush to court next week.--

I nearly used that exact phrase earlier today.
I'm afraid that second question (and the impending answer to it) pretty much cook Libby's goose. I know others are able to see it differently, so maybe we're mistaken. Hope so, but I doubt it.


It sounds to me, and again, we're all talking tea leaves, that one juror (or a minority of them) keeps making that point about Fitz not proving Libby couldn't have been mistaken to the point where the others are so frustrated they want the judge to tell him or her that's not the test.

The transcripts are for sale at exemplaris.com. Anyone can buy them.

Sue, I wish I got the big bucks for blogging as well as lawyering. I sure have lost a lot of time at the latter this past month.


Thanks, Jeralyn.
The transcripts are for sale at exemplaris.com. Anyone can buy them.

I'm giggling, because you did sooooo not answer my question. You must be a fantastic lawyer indeed. But as I said, I was just being nosy so of course it's fair for you not to answer. :-)


ps. oh, if you were suggesting I could buy them because I long to read more of them, let me clarify that I don't long to pay those hefty prices to assuage my curiosity. Yikes!


If I were a juror, I'd just say to hell with it, it's too damn confusing, declare him not guilty on all counts, and go home. Who can really figure it out anyway.


What I think is interesting is that even if Libby was lying about Russert, he STILL could have said what he said to Cooper (lied to him so it wouldn't be considered confirmation). And it does look like Cooper's notes support that.

IOW, Libby did not NEED to lie about Russert to support his claim about Cooper.

(And Cooper testifying he took it as confirmation is totally bizarre.)

inquiring mind

Given the jury question about reasonable doubt, what are the odds that one or two of the remaining eleven will look something up in a dictionary or on the internet over the weekend?


Well-- some, according to the WaPo see this as a good sign:
"The concept of reasonable doubt is among the most controversial issues in jury deliberations, experts say, because it is a vague term that people interpret differently. Though the standard is meant to require a very high probability of guilt, research conducted with juries after trials has demonstrated those who worked together to reach a unanimous verdict nevertheless may have used different benchmarks of what constituted reasonable doubt.

Northwestern University law professor Ronald Allen, an authority on trial evidence and procedure, said the Libby jury is wise to seek clarity but added that it is unlikely that any judge can dispel the standard's ambiguity.

"Some people might say beyond reasonable doubt is 99 or 98 percent," Allen said. "Some might say any doubt at all [is unacceptable]. There is literally no test."



As I posted earlier today, I am very much in agreement with Other Tom on the "reasonable doubt" note. It sounds very much like there is a holdout. And that holdout is a moron. But at least he/she is "our" moron.

Anything is possible, but that reasonable doubt note pretty much seems to indicate that they will find guilty on at least one count.

The note on Count 1 on the other hand was pretty encouraging.


Odd, neither the Wa Po(article just cited) nor the NYT sees it that way.
http://www.nytimes.com/2007/03/03/us/03libby.html?_r=1&n=Top%2fReference%2fTimes%20Topics%2fPeople%2fL%2fLibby%2c%20Lewis%20I%2e%20Jr%2e&oref=slogin>Reasonable doubt


Clarice --

Of course you are right that there is no precise definition of "reasonable doubt." I assume the judge will simply read again his instructions on that point. But there is no question that proof beyond a reasonable doubt does not mean that the prosecution has to prove that it is not humanly possible for the defendant to be innocent. Maybe the juror who so thinks will continue in such an absurd belief but I doubt it. If that belief is all that stands between Libby and conviction, then TM's appeal questions are totally in order.

I know that the defense made a lot of the Andrea Mitchell issues during the trial but I think Walton ruled correctly on those. I think the Fitz closing argument will give at least a decent argument on appeal. I suppose the government will argue that Walton's admonition cured the error, but that is hardly a slam dunk conclusion.


I repeat, I think the judge will reread his instructions on reasonable doubt AND memory issues. He may clarify the bit about "humanly possible". I don't know how much he would risk going beyond the standard instrcutions. The correct answer if a juror feels he has a reasonable (that is not illogical reason to him ) to doubt the prosecution's theory of the case he should not convict.


Clarice --

The NYT has not gotten very much right yet about this case. I would not value their opinion highly on this note.

In fact, all the NYT article does is relate the obvious -- the term "reasonable doubt" has an almost mystical significance to it. But whatever it means, it most certainly does NOT mean that the proof must make innocence "not humanly possible."

I could be wrong of course, but I read the note as being written in a way to corner a hold out juror by asking if an extreme and untenable understanding of "reasonable doubt" is in fact the law. The writer clearly does not believe so. It is hard to imagine why the jury would send out this question unless the answer would cause someone to drop a "reasonable doubt" objection. And such an objection is almost surely the last line of defense.

We shall see.


From the NYT article:

In his instructions to the Libby jury, Judge Walton said, “A reasonable doubt, as the name implies, is a doubt based on reason.”

He also said that “if after careful, honest and impartial consideration of all the evidence, you cannot say that you are firmly convinced of the defendant’s guilt, then you have a reasonable doubt.”

He also noted, however, that “the government is not required to prove guilt beyond all doubt or to a mathematical certainty or to a scientific certainty.”


Clarice --

We are close to agreement. The judge will not venture far, if anywhere, beyond what he has already said about "reasonable doubt." But that definition already says that "certainty" is not required.

I understand your point that if "reasonable doubt" is subjective and if one juror subjectively believes that their doubt is "reasonable" there will not be a unanimous verdict to convict. But if that is the case then the note was a waste of time. I painfully conclude that the holdout juror indicated that he/she would fall in line of the judge indicated that "not humanly possible" is not the test for "reasonable doubt." Otherwise there was no point in sending the note.

To the extent that we continue to disagree, I hope that you prove to be right on this. But what the heart wants and what the head thinks are two different things here.



If the juror was using 'mathematical certainty' (or being accused of using such) that juror could easily fall back on:

if after careful, honest and impartial consideration of all the evidence, you cannot say that you are firmly convinced of the defendant’s guilt, then you have a reasonable doubt.

I think a lot is going to depend on the personalities and strengths of arguments. (well, duh, syl).


If the 'holdout' just has a feeling Libby is not guilty, that's not going to be enough against the others' certainty he is (if that's what's going on),

If, on the other hand, the 'holdout' can point to anything like memory lapses of other witnesses to back his/her position then he/she can more easily stand firm.

I don't want to even start thinking of interpersonal dynamics.


Syl --

You make a good point. A juror can conclude that he/she is "firmly convinced" of guilt without believing that the prosecution has proven that innocence is "not humanly possible."

I think Clarice's argument -- I think -- is that a juror is free to say "I have doubts and I declare them to be reasonable and you cannot convince me otherwise." This is absolutely true. But the note reads to me -- again I could be wrong -- that a holdout juror was saying that "I think there is reasonable doubt because the prosecution has not proven that it is not humanly possible for Libby to have forgotten" whatever. (I assume the Martin/Schall/Grenier/Grossman conversations.) If the hold out is persuaded that it is not the standard then reasonable doubt goes away.

My interpretation of the second note, anyway.


Syl --

Once again you make a good point. A juror willing to stand their ground no matter what can hang the jury for sure.

But the note does not indicate that most think he is guilty beyond a reasonable doubt and one or two do not. If that were the count, this note would not be relevant. THey would send a "deadlock" note.

What this APPEARS to be is that they have argued this long and hard and appear to believe that the disagreement is actually about what is "reasonable doubt." At least one juror seems to think that "reasonable doubt" exists because the government's evidence does not rule out innocence "beyond human possibility." If this juror is now persuaded that this is NOT the meaning of "reasonable doubt" then presumably they will change their vote.

Of course, if the hold out(s) really do have what they believe to be "reasonable doubt" about guilt as that term is defined on Monday, then the note served no purpose.


I've been reading treatises on this ..it is a common problem and scholars recognize it is. But I haven't yet found a case where to clarify it to a juror any judge departed from the standard jury instructions.

It is not a mathematical formula. Obviously if you believe the defendant is not guilty because an invisible pink unicorn told he wasn't, that is not reasonable doubt.
If you find that he is not because he could have forgotten or mispoken that doubt is reasonable no matter that others viewing the same evidence believe otherwise.

I think it odd that this is more troublesome to us than the WaPo and NYT which seem to think it is not a bad sign for Libby.

Sara (Squiggler)

Theo: Which witnesses for the prosecution did not raise reasonable doubt by their own faulty/sketchy testimony?

And you are doing the same thing Fitz did. You are calling what transpired as imparting information as a conversation. Giving a bullet point briefing or reading a sentence or two from a report is not a conversation.

T.J. King

I have heard some say that the defense objection to Fitz's overstep in closing was less than emphatic and alsmot timid. Is it possible that they expected it, wanted to allow it to continue so they could later use it as a basis for appeal, but be on record as objecting?


Sara --

I do not understand your question. (And, FWIW, OJ was guilty.)

The issue is not whether you or I think there was reasonable doubt here. My point is that the note indicates that the majority of the jury believes that there was proof beyond a reasonable doubt and is looking for the judge to push one or two holdouts into agreeing with them by instructing the holdouts that "reasonable doubt" is merely a "firm conviction" and does not require proof to the level that establishes that innocence is not "humanly possible."

Clarice --

Yep, this is a common problem and courts are very reluctant to go too far in trying to define "reasonable doubt." But it is pretty clear that to prove guilt beyond a "reasonable doubt" one does not have to establish that innocence is not "humanly possible."

I would not hang too much on what the NYT and WaPo think. They get a lot wrong on this trial. I suspect that the reporters who wrote these stories have less trial experience than either of us.



Of course, if the hold out(s) really do have what they believe to be "reasonable doubt" about guilt as that term is defined on Monday, then the note served no purpose.

Well, it seems that note was originally written in the morning--possibly edited later--and not handed over 'til late in the day. What that means I don't know. So I don't know why I brought it up.

But, of course, there may be more than one holdout, one of which has real reasonable doubt (as opposed to unreasonable reasonable doubt? My head hurts!). And this note simply asks for clarifications of one of the arguments used.

Or not.



TJ King --

THat is possible. However, based on my experience, something else is more likely. If you think that the other side is going too far but you are not certain that the judge will agree with you, it is common to hesitate whether to object or not. IF you object and the judge overrules you, all you do is highlight that this particular argument is hurting your case and you know it. The jury will assume that the judge is right in shutting down the objection so you look weak and desperate.

In my experience, such objections are one of the toughest calls a trial lawyer has to make. Testimonial objections are tricky too but those usually sail over the jury's head.

Just my opinion, but I think the timidity was based on lack of certainty about whether to object or not.

Remember, you have no advance script. You have to decide in real time whether to object. It's not easy.


You mentioned that you “welcome legal advice”. I gather you mean figuratively [as in the spark that ignited David Shuster’s Emily Litella episode].

So – I’m a lawyer. Who does trials. Lots and Lots of trials. And a former prosecutor. And for half a decade a federal prosecutor [You know how it can be – after five years they figure you should have done a bit more for the boss’ retirement package.] And for a lot longer a criminal defender. And I won. A lot more than I lost. A lot.

I mean no offense by my comments on your suggested grounds. They are evocative, and fun, and I gather the point of the exercise is to promote ideas from others.

And for Scooter’s sake, that can only be a good thing, because his ranks are getting thin - he’s already worn out his top gun – and his #3 guy shot his bolt on the greymail thing and won’t show his face on appeal. His #2 guy is a sticker, though. Things get too much hotter and it might be worth the President’s while to shovel the Snow off his driveway, pony up some megabucks and let Jeffress play with the White House press corp.

This comment threatens to get too unwieldy if I try to tackle all 4 of your suggestions in detail so I’ll do the first one and preview the next three.

Your first suggested ground amounts to going after the process of how Fitzgerald compelled her testimony. You even started the ball rolling on the criticism when you wrote “one might argue that it is water under the bridge”.

Two thoughts. (1) I’ve had many - too many to recall – a new client come in for a consult and say something to this effect – “Then when the cops busted in I tried to flush it all but I missed some and they scooped it up. And now the cops want me to go down and talk to this grand jury into Big Louie and I’m thinkin’ maybe somebody’s gonna want to ask me about where I got the stuff and I don’t imagine Big Louie would be all that pleased with me if I squealed. So I dunno, counselor. Do you think I might maybe in some trouble here? Do you think maybe I need a lawyer?”

I usually try to think of something to say that shows I’ve put a lot of thought into the special and unique circumstances of my potential client’s rare and highly unusual dilemma – something like: “What do you think?” And you know what? Since we both know the answer already and we both KNOW we know, it kind of breaks the ice and builds a bond.

So TM, when you say “water under the bridge”, after I lot of thought and consideration, I’d like to respond with this “What you said, my man.”

(2) Or, if you’re like one of those court of appeal panel spaniels and you expect some big magilla argument in legalese, here’s a peek at the brief:

The appellant readily acknowledges that the validity of the jury’s verdicts on Counts #2, 3, 4 and 5 do not appear to depend in any way whatsoever on the testimony of the witness Judith Miller; and that Count #1 does not contain an specific reference to the witness Judith Miller and that the jury instruction on her evidence was in precisely the words his attorney’s submitted to the trial judge on his behalf; and that given the nature of the verdict on Count #1 it is not possible for this court to determine whether the jury gave any credibility to even the oath of the witness Judith Miller; and that the trial record is replete with other rationales for the jury’s finding on Count #1; and that the current trend in the law since 1984 has been constituted a substantial retreat on the so-called ‘Fruit of the Poisoned Tree’ doctrine; and that it was the actions of the Appellant which left it to the jury to make what it wanted from the “Aspens” letter, including that it was open to the jury to conclude that it represented an attempt on by the Appellant to influence the witness Judith Miller to testify in some fashion other than completely consistent with her oath; and that it was open for the jury to conclude that the manner in which the witness Judith Miller testified meant the “Aspens” letter succeeded in that sense.

However - the Appellant submits that it’s high time this Court cut a new path and make some brand new law that has no counterpart in any jurisprudence in the English-speaking countries of the world.”

Okay, I've closed the brief now. If you want to see more, it'll cost. [Clear proof of my professional status]

Like I said – I like your answer the best, TM.

The coming attractions in a flash:

Ground # 2: Defense wanted Mitchell? Defense could have called Mitchell itself. And what in the world do you mean by a “remand” remedy?


Ground #3: Nope. Well, not any of the current line-up of Team Libby anyway. Maybe Scooter could give Ken Starr a call. He’ll eat anything! Anyway…


Ground # 4: Fitz overboard!!! Severe inflammation of the jury? Ach, and I haven’t even gone through all the Post-It notes yet. Plus, as I think you, TM, would be the first to agree that SHE, MT, would be the first to admit: MT’s live-blogging isn’t exactly a verbatim transcript.

So – this one. Hmmmm. I must agree that ground does look worthy of risking getting one's whatevers into a pretzel over. Long as you don’t give yourself a permanent injury.

We'll have to do this again sometime ... and again sometime... and again sometime... And maybe get a suitable theme song.

Meet Again
Don't Know Where
Don't Know When

I'm sure someone can beat that. Anyway, wet kisses all 'round and we'll see y'all in court!

- LabDancer


T.J. King:

On the morning of the closing arguments, Clarice posted a defense filing outlining the basis for the objections they expected they would be making. It's probably at cboldt's also.


Syl --

As you point out, there are a lot of possibilities. The note may even be a headfake or an academic question.

However, my working assumption is that they would not ask the question if the answer did not bring them closer to a verdict. If someone else says "I have plain old reasonable doubt without going to the 'not humanly possible' place" then they have a hung jury and they would not bother with this note.

But maybe my assumption is wrong. FWIW, I think this note is bad news for Team Libby and I have explained why I think so.

We shall see.

Sigh indeed.



I don't care who you are or what you do for a living, you're wrong on #2. Wells tried, Walton denied.



then they have a hung jury and they would not bother with this note.

This is a pretty relaxed group. If they have a hung jury they simply do not know it yet.



btw I think the note is bad news too. But I have [reasonable] doubts.


Well I'm going to defend the supposed "our moron".

The only provable moron is the note writer.

Do you think that person is empathetic to opposing views?

Or is he filtering that person's opinion in an effort to humiliate them?

I still think this person lacks the ability to put themselves in the shoes of others.

They don't even give a damn if the judge, lawyers or anyone else has trouble deciphering their scribble.

Also it has always been the same person writing ALL of the notes.

That is evident by the style of the f's and s's alone.


Also I am not saying that the note writer is a moron but that would be the only evidence you would have to work with...



The jury instructions advised this group of 12, then 11, to also consider the "believability of the witnesses". What is your opinion on the believability of the government's witnesses, especially Tim Russert. And if, say, Russert is not wholly believable, is that tantamount to reasonable doubt on his testimony and the counts related to his testimony? Grateful for your thoughts on this.


MaidMarion had reported that one of the jurors seemed to have made a connection with Wells. This one could be a 'holdout'.

And there was another report today (in one of these threads and I don't remember if it was Isikoff or someone else) that the jury was spotted in the lunchroom (or something) and they were all sociable except one who was glum and separate.

Okay! There's our holdout!

But wait! The juror MaidMarion reported is female. The one hanging back at lunch was male.

Sooooooo.....can we make new theories out of this?

Sara (Squiggler)

Well it seems to me that the reason we have juries of our peers rather than juries of lawyers and the legally trained is because jurors are supposed to judge based on their life experiences as to what is reasonable or not.

Anyone remember what happened during the Peterson trial deliberations? There was a lawyer on that jury and the jurors finally rebelled against his anal retentive style and reasoning expectations and got him booted off.

We've got the Consumer Protection Attorney probably spouting off the legaleeze and we've got Ph.D.s who probably don't like anyone telling them they are wrong about anything, and we've got a mixture of others who will be bringing their own biases, pro or con for Libby/Administration to the table. And based on some of the jury questions during the trial, we also seem to have at least one and maybe more who are wondering what the heck they are doing there if this was supposed to be a leak investigation and Armitage and Fleischer, the two leakers, got immunity.

Since they did not come to a verdict of guilty the first or second day, I think it safe to assume that some of Wells/Jeffries case has had some impact. To think otherwise, is to say the defense lawyers wasted their time with cross examination.


Okay, I'll give it a shot.

I tried something similar earlier and it was shot down. But I'll forge ahead anyway.

Say there is one holdout - but it's for conviction. Specifically on Obstruction vis-a-vis Russert (the 'surprise' bit).

This holdout is arguing for conviction and trying to convince the others of his position and not getting very far. All he hears is 'reasonable doubt'.

And discussion ensues about the standard and their reasons to acquit on this charge and there's some confusion. But he keeps arguing that Libby couldn't have forgotten all those 'discussions'.

Then one of the others, in exasperation, says 'fitz didn't PROVE that Libby couldn't forget'. Well, that sets him off and he says that's not the standard at all. We'll ask the judge. And he writes the question.

He's the foreman, you see.

But they decide to hold off sending out the question. More discussion and some of the other doubts get cleared up.

They're getting ready to leave, and the foreman edits the question to show that's the only question they have left and to 'prove' his point to the others.

Well, I think it was worth another [hopeful] shot.


Isikoff on the jury's demeanor.


theo: I think there is reasonable doubt because the prosecution has not proven that it is not humanly possible for Libby to have forgotten" whatever. (I assume the Martin/Schall/Grenier/Grossman conversations.)

A number of commenter's who's opinion I respect, such as theo, Other Tom, and to some extent our host, the original Tom, seem to find it almost unbelievable that Libby could have forgotten by July 10 that Wilson's wife worked for the CIA. Perhaps I'm blinded by partisanship, but I don't get it. First, most of these "conversations" weren't actually conversations -- they were brief mentions. Second, they all occurred about a month before. Third, some may not have occurred at all.

Consider all the witnesses that testified to having discussed Plame with Libby.

Grossman testified he mentioned Plame's CIA affiliation to Libby in a face-to-face meeting around June 11. Only in his original FBI interview, he said he told Libby over the telephone, and in court he didn't even remember his original version was different!

Grenier originally told the FBI he wasn't sure whether or not he mentioned Plame to Libby. Only his later guilt pangs allowed him to reconstruct a memory of telling Libby. His testimony has no value.

Martin is the most believable as a source for Libby about Plame, but her story is not without problems -- the main one being that she originally thought she'd mentioned Plame to Libby in July, but the evidence indicates it was actually around June 11. Given the timing, it's certainly within reason that Martin was the source of the information Cheney conveyed to Libby. Although Martin testified that Libby was in the office with Cheney when she mentioned "the wife's" CIA affiliation, it seems to me neither inconceivable nor even unlikely that she may have misremembered the exact circumstances.

Schmall remembers nothing of the supposed June 14 conversation with Libby about Plame. All he's knows is that his notes for that day contain the annotation "Joe Wilson" and "Valerie Wilson." What led him to write down those names is entirely conjecture. If he wrote the names down for further action, where was the evidence that any further action was taken? Did Schmall know the names prior to the June 14 meeting? As far as I know, he didn't testify either way. (As an unrelated aside, I still think there's something hinky about that note. I'm surprised the rules of evidence allow a non-verified copy to be entered into evidence, but they do seem to.)

Addington testified that Libby asked him about what paperwork would be involved if aCIA employee sent spouse on trip. Yet in his original FBI interview, he left out the part about the spouse, and only said Libby asked him about what paperwork would be involved if CIA sent someone on a trip. For that reason alone, his testimony should be dismissed. But even if we accept that he mentioned the spouse, it was never clearly established when the conversation occurred. Though the discussion of the NIE declassification seems to put it around the 8th, Fitz, himself, contended that the declassification was still in doubt at a later time. If the discussion occurred after June 10th, it has no bearing on what Libby knew on the 10th.

Miller perjured herself in denying she remembered any sources other than Libby, and in claiming to independently recall what she read from her notes. Therefore, she shouldn't be believed. But even ignoring that issue, her testimony regarding what Libby told her is unbelievable. If Libby knew, as is claimed, that Plame worked for the CPD, he wouldn't have said she worked for a "bureau" and he wouldn't have said she worked for WINPAC. The assumption Libby could not have forgotten about Wilson's wife's employment status is contradicted by the testimony that supposedly supports it.

So these are the witnesses that make it impossible to believe Libby forgot about Ms. Wilson by July 10. I'm not convinced.

JM Hanes


Do all former prosecutors talk that way?

Offhand (meaning I haven't looked it up), I thought Count 1 does mention Miller specifically, and that only one of the Miller conversations was tossed -- unless the jury instructions differ substantially from the indictment. I also thought the Defense wanted to call Mitchell and that it was Judge Walton who actually nixed it.

I have no idea precisely what you were previewing in #3, but assuming, for the sake of argument, that Fitzgerald's appointment was in fact, unconstitutional, at what point in time or trial, and by whom, would that defect actually be addressed? Judge Walton specifically declined to rule on the constitutional issue when it was raised by the Defense. In essence it's been deferred out of existence if, as you suggest, it is not a viable basis for appeal.

I realize that the ultimate remedy for the problem in this case is Congressional: they need to give the DOJ Special Prosecutor regulations the force of law, or explicitly prohibit the practice altogether. I sure don't expect any action on that front any time soon, if at all, though -- which means that, barring Presidential disapproval, an Attorney General could appoint his best pal as Special Prosecutor to investigate anybody he wants to go after, for anything or nothing, anytime he likes. If the practice here is the model, that appointee could proceed without bothering to file any reports, submit to supervision, or even expose his expenses to an audit. Regardless of whose ox is currently being gored, that's not a precedent that any civil libertarian should regard with equanimity.


Let me append to my previous comments an observation I've been meaning to make for quite a while. An often made argument is "how could all these witnesses be wrong." Disregard for the moment that there really aren't that many witnesses, and consider that apparently lots of people knew about Plame, and lots of them talked to Libby. And almost surely, the FBI and grand jury went to everyone of them and asked if they perhaps mentioned Plame to Libby. And if a few said "I might have," the investigators became very interested. It's not like the witnesses against Libby were selected from a random sample.

JM Hanes


On #4, Forgot to mention that the Defense filed a precautionary motion of some sort -- a sort of pre-objection, if you will (but probably won't!) -- on the matter of the anticipated Prosecution rebuttal. I assume they did so with an eye to the future, and while I don't know what Wells & Jeffries specific record on appeals might be, I gather they've apparently won some cases too.:) That said, however, reluctance to overturn jury verdicts is clearly a serious hurdle.

Completely aside from the issue of appeals, I think the fact that the jury appears to be struggling to figure out what they are supposed to convict or acquit Libby of actually doing, speaks volumes about the quality of the indictments in this case. I'd have thought by now that I'd have gotten over how unprofessional professionals often turn out to be, but this whole investigation & prosecution has still been quite a shocker.


Just for the record, I know it should be, "commenters whose . . . ." Why mistakes that are invisible when I hit "Preview" suddenly leap out at me after I hit "Post" is a mystery that may never be solved.


The appellant readily acknowledges that the validity of the jury’s verdicts on Counts #2, 3, 4 and 5 do not appear to depend in any way whatsoever on the testimony of the witness Judith Miller

That's not true. Fitz claimed the Russert counts (1, 2, and 4) could be proven without Russert's testimony, based on the notion that Libby could not have been surprised at hearing Plame worked for the CIA, since he already knew. A significant part of the evidence that he knew was Miller's testimony that Libby mentioned Plame on June 23 and July 8. As JM Hanes points out, if Miller's testimony applied only to the Miller prong of the obstruction charge, why wasn't it struck when the prong was dropped (and why did Fitz argue it in the closing rebuttal).


Defense wanted Mitchell? Defense could have called Mitchell itself.

But Walton wouldn't allow them to confront her with her prior statement that she knew about Plame prior to Novak. So they could call her, just not to testify about things that help their case. Good deal.


And for Scooter’s sake, that can only be a good thing, because his ranks are getting thin - he’s already worn out his top gun – and his #3 guy shot his bolt on the greymail thing and won’t show his face on appeal. His #2 guy is a sticker, though.

My understanding (perhaps mistaken) is that appeals are often handled by a separate team of attorneys.


LabDancer, regarding an appeal based on Fitzgerald's appointment: Nope. Well, not any of the current line-up of Team Libby anyway. Maybe Scooter could give Ken Starr a call. He’ll eat anything! Anyway…

Perhaps where you practice, snark is a substitute for argument. If Libby is convicted, I'll eat an Easter Bonnet if the Constitutionality of Fitzgerald's appointment isn't an appeals issue. The defense wrote a well-reasoned 40 page brief challenging the appointment, and it's inconceivable that they'd abandon the issue on appeal; and unlikely that the main purpose of the dismissal motion wasn't to preserve the issue.



I have already paid my fare on your Fleischer forgot bandwagon. Regarding the idea that Libby truly forgot, I am currently pushing a related theory, in which Libby's lack of knowledge about Wilson's wife means that he does not know the name "Plame" and that he is genuinely surprised when Novak, Russert, or maybe even some other journalist tells him that she arranged Joe's trip.

Under this theory, in his FBI interviews and Grand Jury testimony, Libby's surprise is genuine, but he makes the absolutely, positively immaterial err of attributing it to learning that Wilson's wife worked at the CIA.

The assumptions on which my current view rests are that there is no evidence that Libby knew Plame's name and her role in sending Joe before July 10 except for the testimony of Miller and Fleischer, that Miller is not credible, and that, therefore, it is, as T.R. himself has said, "impossible" for Libby to have told Fleischer what he did not know.

I have put half my eggs in this basket, but reserved the other half in case Jeralyn comes along and decides they are a suitable object to throw at Hit and Run. If this should come to pass, I will transfer the balance of my eggs to your basket.

Oh, and Happy Birthday, Jane!


I see it going down like "12 Angry Men".

One lone juror, a moron, our moron, has to convince 11 others, make that 10 others, to acquit on grounds of "REASONABLE DOUBT".

The turning point will come when one of the angry ones, a lawyer and also a moron, realizes he has forgotten his dental floss.

"I have forgotton my dental floss!, I cannot not remember never having not forgotten that floss before. Let's have another vote!"

Other Tom

I feel pretty strongly that the judge will say nothing beyond the instructions themselves. I also feel strongly that I must go back to bed now.


If the judge didn't understand the first note, how is it possible he will understand this note.

Dp for Life

IMO, any question on reasonable doubt by a jury shows a division (albeit potentially slight) in the jury on the fundamental question in the trial. Anytime a prosecutor hears a jury come back and ask for clarification on reasonable doubt, he can not be happy and must admit he really didn't do his job. oh poor fitz, if you win you will have to admit the jury did all the work for you.

The tone of the note requesting clarification of reasonable doubt probably indicates at least a majority + foreman are leaning toward conviction despite Fitz's failures. But the fact the note was even sent speakes volumes. Obviously someone believes that the Government has not proven that instead of lying, Libby didn't "possibly" just forgot his comments or interaction with others as virtually every other witness who took the stand. What a ridiculous case.

The art of the "possible" has resulted in many of acquitals. Lets hope so here.



I think you are correct - it could be a holdout for guilty!


Good Morning Everyone!


I've been pretty gloomy about the way the deliberations have been going but here is a more upbeat take. I was very concerned last week when the jury was asked about Count 3...the weakest count.

The reasonable doubt question would make me think that they have not reached a consensus on any count yet...let's keep hope alive.


"I don't care who you are or what you do for a living, you're wrong on #2. Wells tried, Walton denied."
Posted by: Syl | March 02, 2007 at 11:59 PM

Syl – You are right: I was wrong on why TM’s suggested ground #2 won’t work. If permitted, I should like to plead the “Leap To Judgment” variation on the insanity defense – I leaped to judgment without looking for where the net was and – yeicchhk – please don’t look. Please accept my apology. I’ll try to make sure there is no recurrence of such a fiasco.

Nonetheless, I decline to abandon my assessment to TM’s suggested ground # 2 [which if I recall correctly was to the effect of na ga ha] and sacrifice the point the whacky funster in me [strike those last 5 words]that was asked to stick its neck in the meat grinder because of the incompetence of others.

I hate resorting to this, but it looks like I’m going to have to go the bullpen and call in my Legal Closer.

Here’s the set-up pitch:

Wells [Libby really] was entitled to call any damn witness he wanted – and Walton had no ability to stop him. But that is not the same thing as Wells being entitled to get a witness he has called to say any damn thing Wells wants – which is exactly what he was pursuing – and exactly what Walton indicated he wouldn’t let him do. When Wells persisted, Walton gave him a shot at showing exactly how he would go about it – at which that point Wells gave up the shot.

Here’s the money pitch: A party cannot call a witness for the sole purpose of impeaching that witness with a previous inconsistent statement, and then be allowed to argue that the jury is entitled to consider that previous inconsistent statement as one link in a chain where the rest of the chain is made up of speculation.

I know, not much fun, no wit at all ....just ... correct.

ARC: Brian

TM, you've forgotten the biggest appeal point. The one where Judge Walton, in trying to assuage the jury on reasonable doubt, says in his jury instructions, "Reasonable doubt means whatever you want it to mean, just make sure you are fair to the goverments case. They spent a lot of money you know..."

Not that I expect such a thing. I expect he'll re-read the jury instructions. Which since they have them in front of them is not going to move anyone.

My real worry is that the jurors are doing more "home research" over the weekend, and we lose another one.


Happy Birthday Jane!

Syl: Regarding your post upthread --

Okay, I'll give it a shot.

"I tried something similar earlier and it was shot down. But I'll forge ahead anyway.

Say there is one holdout - but it's for conviction."

I said a similar thing yesterday and I think your theory is as possible as the others who feel the hold out is for acquittal.


Lab Dancer,

Not to bust your balloon but any prosecutor who doesn't win most of his cases is not a prosecutor for very long. The real question is whether you won the hard cases, and did so honestly.

Thanks guys for the celebratory good wishes. Let the fun begin!


Although Theo sees this as negative "Specifically, is it necessary for the government to present evidence that it is not humanly possible" I see it as a positive. One might think that the government does not have to present a case that something is not "humanly possible" to convict, as reasonable doubt does not mean beyond ALL doubt.

However, in order to find someone guilty, the prosecution must show someone is guilty, and I would argue they should well try to show that it is NOT humanly possible to mistake something before they are found guilty. I mean are they going to present some case like "Yeah ladies and gentelmen, we have a pretty good reason to believe the guy may be guilty of murder. That's why you should sentence him to death". No.

The prosecution has the burden to show that no other alternative exists, and then it is up to the jurors to figure out of this scenario is true. They then might decide that there is a good case to support guilt beyind all doubt, and a fool-proof case to decide guilt beyond all reasonable doubt. But I think the prosecution has to rise to the level of at least presenting a case beyond all doubt.


Sue, I wish I got the big bucks for blogging as well as lawyering. I sure have lost a lot of time at the latter this past month.

::grin:: It seems Plamegate has gotten us all, one way or the other.


Happy Birthday Jane!!!!!!!!!!


But I think the prosecution has to rise to the level of at least presenting a case beyond all doubt.

Posted by: sylvia | March 03, 2007 at 05:57 AM

Sylvia - you are exactly wrong, unfortunately. It says right in the jury instructions .... "the government is not required to prove guilt beyond all doubt ..."

TalkLeft has the jury instructions.


""the government is not required to prove guilt beyond all doubt ..."

I think there may be a difference between "proving guilt" and "presenting evidence" as my post above explains. They should at least present the evidence that there is no other alternative, and then up to the jury to evaluate whether this is as being beyond all reasonable doubt.


Birdseye asked me hours ago my opinion on Russert's credibility.

Since I was not in the courtroom when he testified I cannot say for sure. But unlike others here, I do not see any really plausible reason for Russert to lie about this. It is of course possible that he is mistaken -- that he forgot that he knew about Plame and forgot that he told Libby -- but that seems unlikely to me too.

I also think, as much as I hate to say it, that Fitz made a good point in closing, one that I had made earlier even. Russert's testimony is not all that crucial. The witness who really nails Libby if his testimony is believed is Fleischer. Because if Ari is right and Libby told him about Wilson's wife on Monday, then Libby is lying about hearing it "as if for the first time" from Russert on Thursday.


Well jsyk, I read the jury instructions. I guess I was mixing up criminal cases and civil cases. If this were a criminal case, I think my point would hold, as the jury instructions state, but as this is a civil case, a lower standard applies, some say it's a 50% standard of guilt.

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