The Libby Jurors - In A World Of Their Own Invention

As the Libby jury resumes deliberating this week it is worth keeping in mind a couple of points.

First, although they have access to trail exhibits (including a transcript if Libby's grand jury testimony), the jury does not have transcripts of any of the witness testimony they heard last month.  Consequently, they are relying on their own memories plus any notes they took to recreate critical testimony.  It it quite possible that on at least a few topics, the eleven jurors have offered an even dozen versions of that testimony - ironists among them may be wondering how they can convict Libby for forgetting what they themselves can not remember.  With the passage of time, this may be helpful for the defense.  Regardless, the jury is almost surely weighing a recreation of the evidence that differs from trial testimony on key points.

The second point is that the jury knows much less about the circumstances of the Libby case than do outside observers; for example, the jury is unaware of the controversy surrounding Andrea Mitchell and the question of whether she did or did not receive some sort of a Plame leak which she may or may not have passed to Tim Russert.

Eventually, the jury will come back with a verdict - if you don't like it, blame them, or the jury system itself.  And if a few of them hit the talk show circuit, we may learn just how far from the actual evidence they happened to wander.

MORE:  Current events - the judge and attorneys are dancing around the jurors notes.  (1, 2)

Byron York has an excellent summary of the jury's progress to date.

RE THOSE GRAND JURY TRANSCRIPTS:  Cecil Turner makes a good point - in the grand jury transcripts Libby and Fitzgerald review different legal theories as to why Libby might be lying, and Libby makes a number of good points in that exchange.

The defense theory would be (I suppose) that Libby and Cheney discussed Ms. Plame on July 7, following the Wilson op-ed; Libby then lied and risked legal peril simply to
spare his boss some embarrassment.  Or more dramatically, Cheney told Libby that Ms. Plame's status was classified on July 7, so Libby lied to conceal that.

Since Cheney was not called, and since no evidence was presented showing that Grenier, Harlow, Schmall, Grossman, or anyone else was aware of her status or considered it to be an issue, the second scenario seems unlikely, to say the least.  I would have thought that if Fitzgerald had a witness prepeared to testify that he told Cheney about Ms. Plame's status, we would have heard from that witness, and Cheney as well.

Comments

[Jane]

Good Morning everyone!

[goddessoftheclassroom]

Please forgive my ignorance, but WHY can't the jury have a transcript of the trial testimony? Is that usual? It seems ridiculous to me.

[Dwilkers]

Because it takes a long time and a lot of labor to make a transcript. My understanding is that it isn't even normally done unless the case is being appealed and even then the side appealing has to pay for it.

[Dwilkers]

I'm a bit surprised at all the talk about the 'juror's own notes' BTW. Down here jurors aren't allowed to take notes in a trial, or at least we weren't in any of the cases where I was a juror. Must be a difference in rules between districts, or perhaps the rules have changed. Its been quite a few years since I was on a federal jury.

Althouse thinks the jury's question(s) indicate they are leaning towards conviction (sorry if its been linked already).

[Jane]

Is that usual?

Yeah, that's typical. Their memories are suppose to suffice, which is funny when you think about it in the context of this case.

Because it takes a long time and a lot of labor to make a transcript. My understanding is that it isn't even normally done unless the case is being appealed and even then the side appealing has to pay for it.

It doesn't take that long, every night the testimony is shoved into a machine that spits out a transcript if someone orders one. That constraint has nothing to do with why a jury doesn't get one. I trial is supposed to be based on impressions not transcripts.

[Jane]

"A TRIAL" not "I trial"

[paladin2]

In the final analysis there are three sets of facts in any case: the actual facts, the facts presented to the jury and the facts as determined by the jury. The more complex the facts, the greater the divergence between these sets.

[chad]

My opinion is worth what you pay for it, but I agree with Ann Althouse. Tom me the question indicates they think he is guilty and just want cover for themselves. That's a shame because I think Fitzgerald put on a very poor case.

[chad]

Sorry that should have been To me not Tom me

[savard]

Tom's point about the memory issue coming more in to play as this drags on is well made. I also still believe as I posted earlier that the jury has just as much distrust and "Derangement Syndrome" for the media as for Bush...that's why they're hung. They don't like either one of them.

[Nick Kasoff - The Thug Report]

I've always thought it was asinine that a jury doesn't get a transcript of the testimony. It would indeed make the outcome "based on impressions." But it could just as well be a false impression as a true one. In this case, my only consolation is that Libby surely had much better lawyers than the prosecution, so if there is a false impression, it is likely to be in his favor.

Nick Kasoff
The Thug Report

[lonetown]

This case is full of ironies and will be in the future in the light of the intense partisanship of this period.

[Jane]

WEll the real problem is that juries ultimately believe what they want to believe.

In the 80's a plaintiff lawyer who was willing to take a civil case to trial around here could pretty much name his price to settle it instead. Juries loved awarding money.

Then the insurance companies did some marketing to the jury pool - telling them that every penny they gave out in awards came out of their pockets and forced their insurance premiums to skyrocket (a premise which has no relationship to the truth).

Juries bought it and awards started to plummet. A case worth $750,000.00 in the 80's is worth about $75,000.00 today. That's not because of the merit of the case, but the pre-concieved notion of the jury pool. Juries now walk into Court thinking that they pay for a verdict.

Right or wrong, most liberals think that it is a fact that this administration lied us into war, and furthermore it goes after its enemies. They consider that to be a fact, and they walk into Court with that notion.

[centralcal]

Good morning Jane.

Byron York has a good recap up this morning, with a quote or two from Andy McCarthy. I love the line about the juror's question regarding reasonable doubt. Andy says it is like asking why is the sky blue?

[Tom Bowler]

Right or wrong, most liberals think that it is a fact that this administration lied us into war, and furthermore it goes after its enemies. They consider that to be a fact, and they walk into Court with that notion.

Agreed, Jane. Fitzgerald went forward with his case with those facts as having been implicitly established. IMO.

[Great Banana]

Jane,

Then the insurance companies did some marketing to the jury pool - telling them that every penny they gave out in awards came out of their pockets and forced their insurance premiums to skyrocket (a premise which has no relationship to the truth).

Just out of curiosity, are you saying that huge jury awards have / had no effect (or is that "affect", I always get that wrong) on premiums?

- GB

[Curly Smith]

Complete hogwash. There is no reason that the Libby jurors can't be expected to have total recall of the witnesses. Just think about those year-long trials... Are you suggesting that those jurors wouldn't remember all of the intricate details?

One question though - if one opts out of the trial by jury does the Judge have access to the transcripts prior to delivering a verdict?

[clarice]

Yes, the court gets overnight transcripts.

[secarr]

Jane! "(a premise which has no relationship to the truth)."

Oy! Who ultimately bears the cost of excessive verdicts then?

I nearly spit out my coffee when I read your statement. Fact is, we all pay through higher premiums and higher costs. I know for a fact that civil defendants "pass along" the costs of verdicts. It is priced into the goods and services in which they deal. If verdicts are excessive, the the corresponding prices for goods/services will be excessive. If a "bad actor" is put out of business by large verdicts, then that lessens competition and allows remaining competitiors to increase prices. Not to mention the loss of jobs and the loss of wealth creation to the overall economy. There are significant costs associated with jury verdicts and they do affect us all. There can be differing opinions as to the overall cost/benefit analysis, but you can't reasonably deny that the costs are there and are passed along by individual tortfeasors in one form or another.

[Jeff Z]

"...telling them that every penny they gave out in awards came out of their pockets and forced their insurance premiums to skyrocket (a premise which has no relationship to the truth)."

...because Daddy will pay for it, I guess.

Liberal economics in one easy lesson...

[SunnyDay]

GB - example - medical malpractice - jury awards huge payment. That does not raise the premiums of health insurance, it does raise the premiums of medical malpractice insurance, though.

I'm an insurance agent - IMO, it affects what doctors do in their every day practice - they will run more tests, for example, to avoid making a mistake. Is this good or bad? depends, I guess...

This is why no defense attorney wants me on their jury. ;)

[Other Tom]

Last Intrade transaction was .70.

[clarice]

fdl:

Walton: I received what you all proposed I should say. I think I'd be inclined to deviate somewhat from what both parties are requesting and tell the jury that the instruction that was given to them regarding reasonable doubt fully explains what that concept means and tell them that they need to go back and review in its entirety and reevaluate what I told them in their assessment of reasonable doubt. It is my belief that is what is contained in what I presented to them, what the govt's obligation is in satisfying reasonable doubt. I don't think I'd be inclined to indicate what the govt is requesting, because I'm not sure what they're asking. If the govt has to prove guilt beyond all doubt, then I'd say no, and I have some concerns about responding in the way the govt has suggested. I'd be inclined to say that I don't fully understand what they're saying. Any comments.

Bonamici: The govt's request is merely that the court address the specific language the jury used. THe govt would object to directing them to the previous instructions.

Walton: I don't know what they're asking me. There was a situation where a woman's car fell on a child, it wouldn't be humanly possible that she pick up the car, but she did. I don't know what they're asking. I don't know whether they're asking whether govt has to prove guilt beyond all doubt.

Bonamici: What the govt has proposed is that your HOnor instruct the jury that the govt doesn't have to prove beyond human possibly–use their language so we're not injecting any language into it. We assume the jury has already read the instructions. Merely re-reading this back to them is not answering the question. If the defense had argued that the jury must acquit if it is humanly possible that the Defendant did not recall these events, we would have objected and the court would have provided a supplemental instruction. If the jury is believing that this is the statement of the law, then they need guidance.

Walton: I just don't know what they're asking. Bc the instructions tell them, the govt doesn't have to prove beyond mathematic or scientific certainty.

Fitz and Jeffress rise.

Fitz: My only point being, if you look at their note, after writing it at 10:30, they worked on it, then sent it out. If they had written, we'd like clarification of reasonable doubt. They said, "specifically." THe answer is no, and if we answer their specific question, that is not required to be proved. If you say no, but then referring to the reasonable doubt instruction. They've sent out a very specific note. I think we should do what the Supreme COurt says. THey've asked, do you have to prove that it is not humanly possible. If I'm a juror that sends out a note with that specificity.

Walton: I want to answer it if I understand what they're asking. They may be asking something that goes beyond what the govt needs to prove.

Fitz: I don't know how much more specific they could be.

Walton: Humanly possible is a nebulous term. I think I should ask them what they mean.

Fitz: Will the clarification be directed to humanly possible?

Walton: Yes, I'll indicate I don't know what they mean by that term.

Fitz: It'll be directed at those words?

Jeffress: The defense position is that the answer should be the opposite. WRT inviting the jury to ask further questions WRT the definition. Precedent directed judges not to inker.

Walton: I was one of the judges they needed to tinker with. THe court of appeals, yeah, they rebuffed me, but I eventually won.

Jeffress: once the court starts tinkering, you diminish the reasonable doubt standard.

Walton: I'm going to ask them to rephrase it. Maybe they'll come back and say, does the govt need to prove beyond all doubt.

[SunnyDay]

secarr, I don't know your profession, but I'd bet that defense attorneys would not want you on their jury either.

There isn't a simple answer to the issue. Somebody always pays. Money doesn't come out of thin air.

[Neo]

Do the jurors snack on "trial mix" ?

[MayBee]

I'm wagering that Fitzgerald talks Walton into doing more than simply reissue the jury instructions on reasonable doubt. I feel that in today's transcript.

I didn't get the tinkering bit, but that sounded to me like Walton fighting Wells.

[Sue]

Seems to me this judge has, from the beginning, leaned towards the government on every ruling. He is about to do it again.

[clarice]

Fitz wants an instruction saying the prosecution needn't prove it's case beyond all possibility. The defense wants the judge to stick to the script--the standard instructions. He's going to repeat the instructions and indicate he doesn't undertand the question.

[SunnyDay]

He is about to do it again.

Yep, Sounds like he's done it before, too.

[american in europe]

If the jury is hung up, I wonder if there is a single hold-out or a group. I haven't been following the trial too closely, but I seem to recall that one of the jurors is a retired journalist. Do you suppose he/she knows from experience how the Washington press corps gossips, and therefore refuses to buy the testimony of the journalists re Libby/Wilson/Plame? As they say, it takes one to know one...

[MayBee]

He is on the first question too.

Lawyer friends- what do you think of adding more quotes than the indictment included in the charge?

[clarice]

Re the first question (fdl):

Wells: what the govt is trying to do, we submit, is to expand the charging language in cout one, to make it track the far more expansive language in count five. What they've provided your honor is the pages that track count five, which is a lot longer. The language we have provided is the language in the indictment. If you look at what the GJ charged, it charged there were three false statements that comprised the instruction. This is what the GJ charged. That Libby advised Cooper on July 12, that other reporters were saying that Wilson's wife worked at the CIA and Libby didn't know whether this statement was true. That is what the preliminary instructions tracked, You can't do what the govt is asking, the govt is asking you to amend count one to pick up the charging language from count five. They can't collapse the perjury charge, which is from their indictment. THey can't convert a limited concise statement in count one to a more expansive statement in count five. That's what they are trying to do. That would be inappropriate. The govt should not give them anything beyond what's in the indictment.

Fitz: we couldn't disagree more. Perjury is the more specific count. The obstruction count includes language about the GJ. It generally says he obstructed the GJ, then it says, it was part of the obstruction that defendant made the following false statements. Then it goes on paragraph 33, to say that at the time of the statement he knew it was false. The sections we have provided are all about these issues. The obstruction is more general than the perjury charge.

Walton: I might agree with you that if there were passages that specifically relate to Cooper.

Fitz: That's what they are.

Walton If they're just general statements regarding Valerie Wilson. They've specifically requestion guidance on Cooper.

Fitz: these do relate to convesations with Cooper. I could walk you though it. March 5, page 184, we suggested line 23, what did you tell Matthew Cooper. It's a description of the Matthew Cooper conversation.

Walton: [reading, Fitz looks up from time to time to monitor his reaction, Walton still reading]

[Other Tom]

Fitz is asking Walton to commit reversible error.

[Curly Smith]

Money doesn't come out of thin air.

It does if you run a Carbon Offset business...

[Sue]

Fitz is asking Walton to commit reversible error.

And it sounds like Walton is about to agree to do it.

[MayBee]

He's going to repeat the instructions and indicate he doesn't undertand the question.

yes. But if they say "humanly possible" or something similar, Fitzgerald will talk Walton in to saying more. He seems quite open to that.

[Sue]

The wild card in this trial has been Walton. And he continues to bail the prosecution out.

[SunnyDay]

I wonder if there is a single hold-out or a group

I enjoy hearing the experiences of the lawyers, and I think it's fun speculating. It will be interesting to see who came the closest to what's really going on. I assume we'll find out eventually. These jurers are bound to be going on talk shows, giving interviews.

[SunnyDay]

Money doesn't come out of thin air.

It does if you run a Carbon Offset business...

Posted by: Curly Smith | March 05, 2007 at 06:36 AM

BWAHAHAHAHAHAHAHA

[PMII]

The judge continues to make me believe that you are guilty and must prove yourself innocent.............

[eric]

The judge is right. The word "humanly" has at least three definitions. "No" is not neccesarily the correct answer. The judge shouldn't try to establish a dialogue with the jury. That could only create more confusion. He can only read the instructions.

[Larry]

Corporations don't pay increased costs of doing business. Their customers do. How much did a pack of cigarettes cost before/after the enormous damages awarded to smokers. Current smokers are paying those damages.

[Other Tom]

I really recommend Byron York's piece at NRO today. The guy does have a knack for presenting things succinctly.

[Pofarmer]

This is what the GJ charged. That Libby advised Cooper on July 12, that other reporters were saying that Wilson's wife worked at the CIA and Libby didn't know whether this statement was true.

I still can't beleive that someone was charged on that convoluted piece of crap statement. What was the GJ thinking? Especially when Libby's statement to this effect nearly matches Coopers own notes?

[hit and run]

SunnyDay:
It will be interesting to see who came the closest to what's really going on.

Can't stay and chat, but will submissively submit my submission again:

Deliberations.....

One person says, "Yeah, so-and-so said this on the stand"

And another comes back with "No he didn't"

And a third say, "Let's review the notes"

And a fourth say "Hey, did Libby have access to his notes on his first appearance?"

And a fifth say, "Cheney eats babies for oil!"

And an sixth say "Clouds! I see clouds!"

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

And an eighth says, "OK, you're stranded on an island with one person - from this trial - who would you pick to be there with?"

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

And a tenth say, "My kids first soccer game is this Saturday"

And an eleventh say, "Hey, are we having pastrami again today?"

And a twelfth say, "WTF are we here for again?"

Posted by: hit and run | February 22, 2007 at 09:43 AM

[hit and run]

Oh and before I leave...

My advice after scanning through the weekend comments...No bitter recriminations aimed at our family, folks. Keep smiling.

I love you all.

[PMII]

I really recommend Byron York's piece at NRO today. The guy does have a knack for presenting things succinctly.

Posted by: Other Tom | March 05, 2007 at 06:47 AM

Thanks for the recoomendation!

[Neo]

I wonder if there is a single hold-out or a group

If the reports that no juror looked "beset" on Thursday are true, I'd say it is a group.

Those other statements about no jurors looking at Libby IMHO don't mean anything. If you, a juror, are really looking at the facts, you don't need to look at him. If they had been staring at him, I'd wonder if they were looking for an opening to show mercy.

Based on my own juror experience, I'd peg the jury at about 8-3 for a acquittal, but this could vary by count.

[Other Tom]

I think we're gonna need lots more H&R before this day is over.

[clarice]

I second that motion,OT. Every place needs a chaplain w/ beer.

[PMII]

h&r,

I don't think you had to repost - we have all been remembering your post. I've always figured you would be right but just didn't want to believe it.

[Larry]

...smokers?

When I encountered animus vs. ultra-rich insurance companies, my reply was that I hoped my insurance company was making money, especially when time came for me to make a claim.

[clarice]

fdl
Fitz: When your Honor indicates that you've read that I can move onto the second transcript. March 24, govt exhibit 2, page 116, line 18 through 117 line 10, and again it's specifically about the Cooper conversation. It starts quote, when you told Cooper that the reporters were saying, who were the reporters you were referring to?

[Bonamici and Zeidenberg whispering, Walton reading, one of the female associates for Team Libby was clearly heavily involved in this response, she's standing behind Wells and Jefferss, kibbitzing]

Fitz: 128 line 1, he states that when he heard it from Russert and Rove he didn't think it was classified. And when I talked to reporters, he said, "I don't know if it's true."

Walton: Where's he make specific reference to Cooper?

Fitz: I realize it's the next one, 182. Two more sections, 182 line 14. It's the same. Uniformly telling reporters he didn't know whether it was true. He says every reporter he told that Wilson's wife works at the CIA, the section about the Russert answer, 191, line 22. It goes to the following page, that's the one where he's asked about Russert and he mentions Cooper. The question was asked by the GJ, if he thought it wasn't classified, why was he so careful. Among one of the things we didn't know that he had a wife. They go directly to the question of Libby telling Cooper that he didn't know about the wife. Given that their question is what they should evaluate, we think this is a fair response.

Walton: I'd agree that the defense language is too restrictive. My concern is that the jury be instructed in such a way that they understand that these passages relate to Cooper, that it would be appropriate to consider anything he would have said before the GJ that relates to his conversation with Cooper.

Wells: Maybe we're getting back to the issue of what is meant by the question. If what is meant by the question–they're trying to figure out what is the charge.

Walton: They're asking where in the transcript where he made the statements that amount to obstruction.

Wells: I agree with that, if that is the question they cannot go beyond what is charged in the indictment.

Walton: the govt did not say there was only one passage they were referring to.

Wells; They said there were three false statements, You cannot go beyond the GJ charge.

Walton: They're saying, where in the transcript. The govt's position is that in other parts, he made reference to that same convesation and jury should be able to consider that part of the GJ testimony as well.

Wells; It's not a matter of consideration. All I'm asking your honor, is that if you just stay with the indictment.

Walton: I understand that, I'm trying understand whether these passages fall within the purview of what is alleged in subsection B.

Wells: What the GJ charged is specific language. The GJ was very specific.

Walton: are you saying that the only thing in the transcript is what you've referencesd.

Wells; What I'm saying is what the charge is. To consider whether this statement was a false statement. I have no problem if they read all the Cooper statements. We can't go beyond the charge.

Walton: Why are you saying that what the govt referenced are not dealing with this statement?

Wells; I didn't even know if he had a wife–that's not part of the statement that GJ charged. If they want to read that part of the testimony for evaluative purposes. We can't amend the language of the charge. We predicated the preliminary instructions on tracking this language, we did everything based on our understanding that B relied on the false statement. What the govt is doing is trying to expand the nature of the charge. I have no problem as to what the GJ wants to charge.

Walton: are you saying there's nothing else in the transcript that falls under what's alleged in Paragraph B. I Would agree that to the extent that there are other statements that go beyond B, it would be inappropriate for them to assess whether he made a false statement. My question is is there language in what the govt offered that goes beyond the charge.

Wells, I think they're asking about the charge.

Walton: the govt didn't say that what Cooper said was page X, line B. If there are other passages that fall specifically under that language, I would agree with the govt. Counsel needs to sit down to see whether there's agreement…I agree if what he said expands on passage B, but if there is in fact language in his GJ testimony that would fall under the language as alleged in paragraph B, it'd be inappropriate to limit it. I need to look at the transcript to make that call. You need to sit down to see if you can reach agreement on that. I won't tell the GJ that the scope of this can be expanded.

Wells; Maybe the right answer is not to direct them to any pages, but to say that the charge WRT the obstruction, is to quote Paragraph B, we can tell them they can review all the GJ testimony. I'm just saying there's a very specific charge. Fitz says perjury.

Walton I guess you're saying I shouldn't even tell them what you're saying I should tell them. They're asking for guidance, so they can focus on the portion of the transcript that relate to charge B. Maybe that's their role, to search the transcript.

Wells: right, I just don't want this jury to be confused that the charge is anything other than the charge in B.

Walton: I wouldn't instruct them beyond it.

Wells I think the most important response is that the charge is what was in the indictment. I'm more concerned with the charge.

Walton: I just don't know whether there are other statements that he made.

Wells: Maybe the right response is to say it's in the instruction, and they are free to rely on any testimony in GJ.

Walton: I think it should be more specific than that. If they are able to discern from the transcript, statements that relate to B, they are able to consider those statements.

Wells; I am in no way trying to restrict them. The charge is what is already in instructions. We based defense from day one. [Fitz stands]

[hit and run]

Sorry, phat phingers hit post bephore I phinished...

Me: I love you all

...almost as much as I love Jeralyn

;-)

[clarice]

Walton: if the govt wanted to refer to these, it could have. We can't usurp the role of the GJ.

Fitz: The jury wasn't asking what's charged.

Walton: Where in the transcript did he make statements that are covered by this charge. My concern is is it appropriate for judge to point them to parts of the transcript. I'd be making myself part of the fact-finding process.

Fitz: what if we told them the charged language is what's in the instruction. You can use both transcripts. The parts where he refers to Cooper are as follows. It wouldn't be changing the charged language.

Walton: My concern is am I making myself part of the fact-finding process when I designate where in the transcript they should refer to. That's the GJ's role to make that cut, the jury can make that same assessment. I'm having problems with me stepping in and telling them these are the parts o fthe transcript.

Fitz: What if the jury said, we can't find where in the transcript Addington testified.

Walton: I wouldn't have a problem with that. If they asked, tell me which part of the Addington transcript related to a particular charge. It's their job to decide whether that passage relates to the charge. I don' t have a problem telling them they have to review the transcript to identify those parts that relate to B, they need to assess whether this part of Count One has been proven.

Fitz: Count Five, we've already given them guidance.

Walton: BUt that's because you set that out. I don't think that's a problem to indicate what I did in the instruction. But if that wasn't done for the obstruction charge, I have a problem telling them what to refer to.

Fitz: One moment your honor.

9:50

Fitz: If we can consult with the defense on specific passages. But back to the first question. We suggest this langauge: What the court does not understand what you mean by "not humanly possible. In order to properly respond to this question, the jury should explain its use of that term.

Jeffress: I think giving them that kind of homework to define what they mean by that terms is going to get them debating something that has nothing to do with the guilt and innocence.

Walton: My job is to be more than a bump on a log. To do what's being suggested is the judge's job. I've got to tell them I don't understand what you're asking in that regard. If you can further explain, I'd help them.

Jeffress; It's not just the term humanly possible.

Walton; That's what they're asking. What I have concerns about is that particular language.

Jeffress; It says is it necessary for the govt to provide evidence that it's not humanly possible to not recall. If you ask them to define that, we'll have the jury back there debating what that might mean. That'll not advance the ball.

Walton: I'll draft something. We'll take a short break.

[secarr]

Sunny, I am a defense attorney (civil not criminal). I am a civil defense attorney's dream juror, and so, I will never be allowed to serve on a civil jury. Everyone pays for emotional juries and indulgent judges. Individual defendants pay in the short term, but those costs are eventually passed along to everyone. I could not believe that Jane was suggesting otherwise.

[theo]

As much as I adore Jane -- and I really do -- I have to agree with secarr on this one. I have no doubt that insurance companies put out misleading stuff but the fundamental point that big jury awards cost someone and that someone could be closer to you than you might think is a sound one.

[Pofarmer]

After skimming through Clarice's posting's, it seems as if the jury is having trouble figuring out the charges. If they can't figure out where in the testimony relates to which charge?

[clarice]

The judge finally caught on to the law there--he cannot go beyond the charge in the indictment because that is the testimony the gj said was perjury--Fitz of course would like the jury to consider everything ..

[theo]

So far I am relatively happy with where Walton seems to be going. He is not going to directly answer the "not humanly possible" question but is going to tell them to re read the "reasonable doubt" instructions and say that he does not understand specifically what they are asking. Debating with the jury is likely to lead to frustration and perhaps a hung jury.

On the first question, he has agreed with the essential defense argument that the charge cannot be made broader in answer to the question. That is important.

Let's see what he comes up with but so far not so bad.

Clarice -- any indication that he is going to re instruct them on memory?

[BarbaraS]

What Jane is saying is that insurance companies have reserves. Settlements come out of these reserves. Over the years these reserves become sometimes astonomical. To increase costs is just an excuse.

[clarice]

theo--I haven't seen any indication on that--nor do fdl's notes indicate the defense requested that..pity

********
fdl:
:54

So Jeffress was drafting language, and Libby was standing behind him, peaking over his shoulder. This is actually a very interesting moment, showing Libby's involvement in his own defense. Jeffress finished, handed it to Wells, Libby walked away. Meanwhile, Fitz seems to be working on his own. Now the two teams are discussing, Wells is pretty heated. Zeidenberg and Kedian pacing. Kedian chewing on her fingernails. Libby digging under the table for something.Getting a happy mint out. Offers one to Jeffress.

Libby reading over Wells' shoulder again.

Lots of discussion about whether 1) they don't think Russert is credible, 2) they don't realize they only have to find one false statement (the folks here have confirmed that the verdict form does not specify each prong of the obstruction charge) 3) they jury is just confused about the obstruction charge.

(Me:I don't know what fdl is talking about--IIRC the obstruction charge prongs are separate, the jury must be unanimous on only one--if they were unanimous on Russert why are they bothering w/ Cooper?)

[Neo]

I can't believe this banter among Walton et al.

When I was a juror, the only question we ever sent to the the judge was answered with "you have to figure that out yourself, refer to the evidence."

[MarkO]

Walton: My job is to be more than a bump on a log.

Sure.

[jsyk]

I still think note #1 is very good news for the defense. It seems to indicate the jury does not find Russert credible. Maybe the defense bringing up Russert forgetting the phone calls to the Buffalo News did the trick as to reasonable doubt.

And I think Walton is ruling much more for the defense than I thought this morning. He could of gone with the prosecution on Note #2 and just said "No".

[boris]

Perhaps she just meant that in general civil payouts are not a significant cost of doing business. Everybody pays, but the bad actors get hit the hardest.

Don't necessarily agree but there is an argument that awards play a useful role in the market.

[theo]

(IIRC the obstruction charge prongs are separate, the jury must be unanimous on only one--if they were unanimous on Russert why are they bothering w/ Cooper?)

Exactly.

Which is why I thought the first question was good for Libby on Count 1. They must have disposed of or passed over the first two prongs of Count 1. They would not get to the third -- and weakest -- otherwise.

[theo]

Agree with jsyk's 7:16 post.

[Jane]

Just out of curiosity, are you saying that huge jury awards have / had no effect (or is that "affect", I always get that wrong) on premiums?

GB,

Yeah - The most profitable part of the auto insurance policy is the part that covers bodily injury. An insurer could pay out 100% of its reserves on every single case filed, and still make a profit. What is unprofitable, or maybe less profitable, is property damage. At least that's what I found out in the early '80's when I was a risk manager. I would guess that it remains the same today. So the whole, "it comes out of your pocket" thing, is a joke.

[Other Tom]

I am very confident that the securities class action suit does much more harm than good to the economy. The guy who taught me securities law observed that if the securities act of 1933 had been passed in 1840, the American west would never have been developed.

Meanwhile, count me among the hopelessly lost as to what is going on in the courtroom.

[SunnyDay]

secarr and theo - yes, I agree with all of what you said.

[boris]

So the whole, "it comes out of your pocket" thing, is a joke.

Except that it forces a need for insurance, who are happe to meet the need, very profitably, in return for being called "evil insurance companies".

The premiuns that feed the reserves most definately come out of our pockets.

[theo]

Other Tom --

SO far so good in the courtroom this morning it appears.

One of the real problems with class actions is that they make some plaintiff lawyers very rich and they give gazillions of these dollars to Democrats to pass even more onerous regulations.

On the other hand, the whole process does provide employment for class action defense counsel, which is a very good thing in my opinion.

[maryrose]

The suspense is killing me. Why must Fitz argue every minute point. Why not proced as they do in other trials. You can't conflate charges together. Who the hell cares what Libby said to Cooper. His {Cooper's} own notes and testimony impeach him. He was new at the job and fumbled terribly. That's why he no longer works there. At least Miller was in jail for awhile. Cooper managed to bypass that too, Good thing he is married to Grunewald... It's the only thing that keeps him viable. Otherwise he would have suffered Jayson Blair's fate.

[clarice]

"March 5, 2007 -- JERUSALEM - A retired Iranian general linked to the killing of five American soldiers in Baghdad vanished mysteriously in Istanbul last month, Israeli media reported yesterday.

Arab newspapers are hinting the CIA and/or the Israeli spy agency Mossad are behind the disappearance of Gen. Ali Reza Askari, the reports said.

Askari, a former deputy defense minister, arrived in Istanbul on a flight from Damascus on Feb. 7, left his luggage in his hotel room - and vanished.

The missing general was in charge of Iranian undercover operations in central Iraq, said the Debkafile, a Web site that often reflects the thinking of those in the Israeli security forces.

Askari is believed to have taken part - or have links to - the armed group that stormed a U.S.-Iraqi command center in the holy city of Karbala on Jan. 20 and killed five U.S. troops, the Web site said.

The attackers wore military uniforms and used vehicles often driven by foreign dignitaries in an attempt to impersonate Americans.

A Middle East intelligence source said the United States could not let the outrage stand and had been hunting the general ever since, the Web site said. "

http://www.nypost.com/seven/03052007/news/worldnews/terror_linked_iranian_in_kidnap_puzzle_worldnews_oron_dan__post_correspondent.htm>Good

[CAL]

Re: Bad actors get hit the hardest.

No. Deep pockets get hit the hardest. It is a f undamental problem with the system and jury awards based on nothing but the existence of the deep pockets exacerbate it no end.

[Other Tom]

Theo, Bill Lerach's firm has definitely made possible the education of my grandchildren and those of many of my partners. And he has built himself a magnificent palazzo in nearby Rancho Santa Fe. And the individual shareholders he "represents" get about $23 each when the cases settle, as they always do.

[Great Banana]

GB - example - medical malpractice - jury awards huge payment. That does not raise the premiums of health insurance, it does raise the premiums of medical malpractice insurance, though.

I'm an insurance agent - IMO, it affects what doctors do in their every day practice - they will run more tests, for example, to avoid making a mistake. Is this good or bad? depends, I guess...

So, big awards cause the doctors to run more tests, etc. but does not cause an increase in health care costs or health care premiums? Interesting analysis.

Of course all jury awards are passed along to the consumer.

the question is, what is the correct amount of a jury award for things like "pain and suffering" etc.? I don't think anyone argues that injured people should not be compensated when someone else was negligent.

Instead, the issue is what is appropriate compensation? Is it $10 million dollars for spilling hot coffee on yourself by driving with the hot coffee between your legs?

The idea, however, that jury awards do not affect prices is not persuasive. There is an argument to be made that jury awards are not the sole cause, or even the major cause, of premium increases, but I don't see how anyone can claim that there is no effect.

[Pofarmer]

The guy who taught me securities law observed that if the securities act of 1933 had been passed in 1840, the American west would never have been developed.

Could you give me the condensed version please?

[theo]

Other Tom --

Roger that.

[Jane]

Theo,

I maintain that both you and Secarr are wrong, wrong wrong.(And even Sunnyday who is never ever wrong!)

Look at your insurance policy. What you are paying so much for is the bashed fenders, the broken headlights, stuff like that. These are the claims which come with great frequency, and are covered for those at fault and those not at fault, by in large.

As for large verdicts - pit those against defendant's verdicts, which are more and more frequent, and you will see what I mean.

I'm telling you, this is not propaganda, it's accounting.

Now, what am I missing in the Libby trial?

[Sue]

And I think Walton is ruling much more for the defense than I thought this morning.

I may have to take back what I said earlier. I suspect he thought about reversible error, since he mentioned it.

[theo]

Jane --

Because of my high regard for you and because you seem to believe this point so passionately, I can only assume that we are missing each other's point.

I am no expert on property damage versus personal injury claims. Maybe there is something in what you say about which is more profitable or whatever.

My point, which I cannot think you seriously disagree with, is that large jury verdicts cost SOMEONE money and whoever pays it cannot endlessly pay it without either going broke or passing along those amounts as a cost of doing business -- i.e. -- to raise premiums. There is no magical source of money -- either the federal government or insurance companies -- that we can tap into without consequence.

"Reserves" are just accounting, that is for sure.

[PMII]

Insurance---

Many years ago, my agent told me that 80% of auto accidents result in bodily injury $ being paid out. They all believe it's free money.

[verner]

"The missing general was in charge of Iranian undercover operations in central Iraq, said the Debkafile, a Web site that often reflects the thinking of those in the Israeli security forces."

Let's not forget, the Turks hate Iran. The mullahs have stirred up all kinds of "Islamist" trouble there.

Oy, time for Dana Priest to pull out her pen and write another article about "extrordinary rendition." Then Human Rights Watch can accuse the Bush administration of violating Askari's civil rights...

[MarkO]

Has there ever been a better time to be a lawyer? Every possible squabble goes to court. Each bill Congress passes is more work and more fees. Had the Securities Act of 1933 been passed in 1923 JFK would not have been president.

There was a time when being a partner in a major law firm was akin to being a tenured professor at an Ivy school. That’s what I thought when I went trudging off to law school instead of playing with the Beatles. (Right) It was unheard of for partners to move laterally into another firm. There were no “regional” offices. No advertisements. That was when lawyering was a profession. Now, it’s a business. Medicine is a business. In some spots, the clergy is a business.

As you can see from this trial, this “profession” has adopted business-like standards of conduct: bait and switch; false advertising; product disparagement; success at all costs. Moreover, it has taken on a nasty tone among lawyers.

The rise in the income of lawyers has had one singular, negative consequence: very few qualified lawyers will give up handsome living to become judges. Even for life.

Ain’t the free market something?

[clarice]

This judge's compensation is less than that of a first year associate at a firm representing NBC. Think about that.

[Tomf]

Costs cannot exceed revenues indefinitely.

[BarbaraS]

One insurance company rarely bares the sole cost of any settlement. Insurance companies farm out these liabilities amongst themselves to avoid this.

Automobile ins. rates are astronomical. How often do you have a claim? rarely or never for most people. What I said before is that insurance companies build up reserves and sometimes these reserves get to be astronomical and certainly more than is needed. These reserves are invested and get interest and dividends which build them up even more. Insurance companies raise prices to replenish these reserves that are not needed. Raising prices are just an excuse.

Do you actually think that retailers who raised their prices when gas increased so much have lowered their prices now that gas is down I haven't noticed. Insurance companies and retailers will raise their prices to whatever the process will bear. That is just business. They do it because they can.

[SunnyDay]

Posted by: Great Banana | March 05, 2007 at 07:35 AM

OK, IANAL, but you are saying I said something I did not say. I was describing the direct, immediate effect on premiums, not the overall diffuse effect on everything.

You guys are way to picky for me to try to debate with you. I'm out. No big deal. Forgive me if I don't answer any other challenges to any statement I've made. It's interesting, but not that interesting. ;)

[Another Bob]

MarkO | March 05, 2007 at 07:53 AM

Add to your list an undue love of the "process" and use of "process" to rationalize clearly unjust outcomes.

[clarice]

Walton in.

Fitz: Thank you for your indulgence. Where it now says, I do not understand what you're asking me, we'd change it to "I do not understand what you mean by humanly possible." If they said not to a scientific certainly. If we don't tell the jury what's unclear, we have little chance to have them clarify such that we ca understand. We should clue the jury into where the ambiguity is.

Jeffress: I think this is going to be absolutely clear to the jury. You've said I don't understand what you mean. In a way it's nitpicking for the govt to want to clarify this. We think this is perfectly clear to the jury and good to go as it is.

Walton: I'll make the suggested change.

We still haven't adjourned. Don't know whether we're going to send this to the jury or whether we're waiting for their answer. Fitz is now discussing something with the Defense.

10:55

[Larry]

"Reserves" are just accounting, that is for sure. Posted by: theo | March 05, 2007 at 07:48 AM In most states, reserves are required by law and at least have a theoretical relation to actuarial risk. I was not in P & C, but I know from L & H experience that actuaries have become increasingly accurate in forecasting mortality and morbidity. Just like dogs that chase cars and pros who putt for pars, insurance companies that don't make money don't last long.

[davandbar]

This judge seems to have just caved in at the last minute for the 100th time during this trial!
As we hear the back and forth, he seems to be agreeing to everything the defense is contending. He even states he will rule that way. And then, after a short break, fitz makes one statment and he does a complete reversal for them! Is he a puppet on a string or what? It's driving me crazy!

[Rick Ballard]

I wonder if possible/Impossible!! was debated a bit by the jury wrt to Russert and the question is tied to that debate.

It's very nice of Walton to open a dialogue with jurors during deliberations. Maybe he could go in and sit with them - just to help them through the hard parts.

[Tomf]

"I'll make the suggested change."

WTF???

[Jane]

My point, which I cannot think you seriously disagree with, is that large jury verdicts cost SOMEONE money and whoever pays it cannot endlessly pay it without either going broke or passing along those amounts as a cost of doing business -- i.e. -- to raise premiums.

Theo,

The point of insurance is that it is a pooling mechanism. We all pay $1000 a year so that in the event that one of us has a claim for $3000 we get paid for it despite the fact that we only paid $1000 in premuim. Those who have no losses bear the costs in exchange for the peace of mind.

Over the course of the year, the insurer collects $100 million in premiums. Of that amount, 1000 claims are made in the amount of $90 million. Of the 1000 claims 800 are settled for a total of $1.5 M, 200 go to trial, 150 are defendant's verdicts, 30 are awarded amounts less than the final offer and 2 receive awards of $20 million each.

The insurer has made a sizable profit and will bitch and moan and complain about runaway juries all the way to the bank.

I'm telling you, if you look at the numbers it will bear me out. Oh and do you remember Learned Hand? It was he who postulated that all claims could be predicted to close to a certainty over a period of time in both frequency and severity? I've made those calcuations and he is right. The profit is always built in.

[clarice]

Well the case of the missing crime is rapidly looked to be expanding to the case of the missing crime and the indictment written in sand. (The count makes no sense--well, here let's just expand what was covered..) Gee willikers. This is first year law school stuff.

[boris]

The profit is always built in.

Odds favor the house in the long term.

[bRight & Early]

Odds favor the house in the long term.

Posted by: boris | March 05, 2007 at 08:11 AM

Or their wouldn't be a house.