Madness! Madness! Madness!

One of my favorite posts from FDL's trial commentary was Pachacutec's Who's Your Daddy. He wrote:

A trial is a complex thing.  There's all the evidence, rules of evidence, legal stuff and rules for jury deliberations, but anyone who has interviewed jurors after a trial (and I have) knows that it's often the unpredictable elements, the very human elements, jurors hang on to and remember.  As I watched opening statements this week from inside the courtroom, as preoccupied as I was with taking notes of the competing arguments, I was also most attentive to the ebb and flow of human energy, the little looks and asides, the personalities and the dynamics of people and perceptions, as best I could read them, drawing on my experience and my doctorate in psych.  I want to share a little of what it was like to be in the courtroom, through my perceptions of how the players came across.

Here's the thing:  in my view, the three dominant personalities in the room - Pat Fitzgerald, Reggie Walton and Ted Wells - are all engaged in a complex game of "who's your daddy?," both among themselves and, perhaps most especially, for the jury and the media.  Think of it as an alpha male American Idol for the jury and the public, where the ultimate prize is the jurors' trust and confidence, with public perception a very close second.

I love the post partly because I always find Pach's insights into human dynamics so fascinating. But also because it really did describe what was going on in the courtroom in early days--a battle to see whether Wells could take over the courtroom, Fitzgerald could stop him, or Reggie Walton could find enough Solomonic decisions to keep the trial moving forward, however ploddingly.

Yesterday's close was about many things. But most of all, it seemed to be the resolution of all these tensions in an unexpected way.

Only it all got started by someone who never figured in these calculations of alpha male dominance. You see, one of the most important moves of the day came when Peter Zeidenberg stood up and said to the jury:

Defense didn't have to give opening statement. On behalf of defense, Wells elected to give opening. He painted different picture, told you about WH conspiracy to scapegoat Libby. Effort to make LIbby into sacrificial lamb so that Karl Rove would go free. You've heard witnesses testify, you've heard witness after witness, you've heard them testify about one or another conversation with Libby about Valerie Wilson during the time period that Libby claimed he had no memory of Wilson's wife. You heard Russert testify, take an oath and say he never spoke to Libby about Wilson's wife. In direct contrast to what Libby claimed. Now did you hear any evidence about a conspiracy to scapegoat Libby? If you draw a blank, it's not because of a problem with your evidence. [It's because the defense never proved their argument that there was a WH conspiracy against Libby.]

It was an important point because the Defense never proved this point--it never brought witnesses like Andy Card and Scottie McClellan and Dan Bartlett and Karl Rove himself they would have needed to prove their point. More importantly, it got under Wells' skin.

You see, this kind of accusation is precisely the kind of thing that would get under an alpha male like Ted Wells' skin--particularly if the accusation rings true. He couldn't let the accusation lie there because it would suggest to the jury that he hadn't proven his larger case. But he couldn't let it lie because it would damage his own ego. So rather than launching right into the prepared closing statements, rather than summoning rage for Scooter Libby, his purportedly aggrieved client, Wells started by summoning his own rage. The most remarkable thing about it was his voice. It was higher pitched than the voice of his rage persona. And he stopped breathing--his voice became pinched and forced. This was real rage, but it was rage in the service of Ted Wells, not rage in the service of Scooter Libby.

By getting under Ted Wells' skin, Zeidenberg managed to do two things. First, he exposed to the jury what Ted Wells looks like when his emotions are real, rather than a schtick adopted in the service of the client. And critically, he goaded the Defense into using 20 minutes of their alloted time defending themselves, rather than Libby. And for the rest of their closing, they were racing to catch up. Wells was flipping through PowerPoint slides just glossing over the content. He announced he was taking time from Jeffress, who apparently looked up with a forced smile to hide his anger. As Wells went over his time, Jeffress more openly seethed. Then he, too, went over his alloted time.

By goading Wells into a response, Zeidenberg sowed real animosity between Libby' defense lawyers, whose each clearly believed only he could save the day (IMO, Jeffress might have been able to do so, but not Wells).

All this came to a head with Wells' last words. You see, Wells really does have a schtick, one that the journalists who have seen him before all recognize. He finishes the rational part of his case. Then he spends the last 20 minutes or so summoning rage for his client. He brings all the emotion summoned for his client to a crescendo. And then he weeps, demonstrating clearly to the jury how deeply he believes that his client has been wronged.

But remember that 20 minutes that Zeidenberg goaded Wells into wasting? Well, it meant that Wells had no time to get into character, and he went immediately from a rushed but rational argument about memory into his emotional appeal.

Don't sacrifice Scooter LIbby for how you may feel [about] war in Iraq or Bush Administration. Treat him the way he deserves to be treated. He worked every day to be NSA for this country. Analyze it fairly. Fight any temptation for your views if you're Democrat whatever party. This is a man who has a wife [and] kid[s]. He's been under my protection for the last month. Just give him back. Give him back to me, give him back.

Followed by an abbreviated choke, a catch of his brreath. Without the crescendo, it sounded more like a death rattle than any truly felt emotion. And compared to the real rage Wells had shown earlier in the day, it looked fake. Utterly, completely fake.

Because Wells reacted to Zeidenberg's barbs, he showed the jury true emotion that made all his elaborate schtick--the thing that Wells does best, normally--look like an act.

Which set Fitzgerald up perfectly.

Fitzgerald stood up and, with his voice raised for almost the only time in the trial, yelled,

Madness! Madness! Madness!

Followed by:

Outrageous! [in mock outrage] The govt brought a case [about] 2 phone calls. And they just want you to speculate. [now with quiet, rational  voice] The defense wishes that were so. Saying it, Saying it loudly, pounding the table, doesn't change the facts.

Fitzgerald took Wells' mock outrage and mocked it right back. Not only did his judicious (ha! like that word) use of emotion grab the attention of the jury in a way that Wells' sustained faux outrage no longer could. But with just a few words, Fitzgerald managed to belittle the entire argument the Defense had been making.

But Fitzgerald wasn't done with reappropriating Wells' schtick. After doing a number of things with his rebuttal--finally establishing Valerie Wilson as a person, getting weedier than I have ever been, countering Jeffress' "Perry Mason moment" with his own, accusing Cheney of obstructing justice--Fitzgerald returned to his explanation of why obstruction was so important. He wasn't yelling, like Wells had done. Rather, he used the same barely controlled outrage voice he used in the press conference where he announced charges against Libby. His voice cracked, as it had before.

And he flipped Wells' outrage on its head. Rather than Libby as the aggrieved party, he put the American people in the role of aggrieved party. He picked up Wells' language about what Scooter deserved, and asked, "Don't the American people deserve the truth?!?!?!" Then he picked up Wells' language about "giving Scooter back" and flipped that too.

If as a result his wife had a job, she worked at CPD, She gets dragged into newspapers. People want to find out was a law broken when people want to know, who did it. What role did Defendant play. What role did VP play? He told you he may have discussed this with VP. Don't you think FBI desesrves straight answers. When you go in [that] jury room, your commonsense will tell you that he made a gamble. He threw sand in the eyes of the FBI. He stole the truth of the judicial system. You return [a guilty verdict] you give truth back.

It perfectly mirrored Wells' argument: Faux outrage, Real outrage; Libby and his family, Valerie and her live; Give Libby back ... or give the truth back.

No better way to put this trial--you can give Libby back, or the American people can have the truth back. Wow.

But never forget--it was all set up when Zeidenberg, not on anyone's radar as the alpha male in this trial, forced Ted Wells to defend himself, rather than defend Scooter Libby.

Comments

[greenhouse]

Wow EW, you got me on the edge of my chair with my big toe shooting up into my boot!

ESSELENT!!!

[RJ]

Can Bush pardon Libby soon?
Doesn't he have to get rid of Fitzgerald first?
If Libby is pardoned, can he be called to a grand jury again
and asked for the truth?
Can someone be pardoned for all future lies?

[Redshift]

Wow! Yesterday was the one day I actually had to work, and couldn't follow the liveblogging at all. Now I really have to go back and read all the way through the Wells posts. (Thanks again!)

[Redshift]

Can Bush pardon Libby soon?

Yes, but there's no advantage to doing it before he's exhausted his appeals (if he's convicted) and he probably won't do it until he's leaving office.

Doesn't he have to get rid of Fitzgerald first?

Only if he wants to continue to protect his administration. ;-) And it's not as easy as it sounds to get rid of him, and he can't get rid of the Wilsons' civil suit.

If Libby is pardoned, can he be called to a grand jury again and asked for the truth?

Yes, and he loses the ability to take the Fifth in the civil suit as well.

Can someone be pardoned for all future lies?

No.

[whenwego]

Now, THAT is real analysis of courtroom drama. Never heard it on MSM either. You are excelling yourself! I believe this would be a great first chapter of your book on the trial!

[Jeff]

This is just great, especially the account of Fitzgerald's performance. I'm only skeptical that Wells was out of control. Maybe he executed poorly, but I'm sure he knew the claim that the defense hadn't made good on the Libby-as-scapegoat opening was coming and had a response calculated in advance. And I think what he was trying to do was to blunt the force of the prosecution's claim by turning it into a personal thing between the lawyers, not something that really had to do with Libby and the case at all.

In other words, it was a calculated part of the act, though maybe he executed poorly and in particular took too much time.

[mickey]

EW,

Do you have a thought about Jeralyn's Libby Trial: Missing the Forest From the Trees? Were y'all at the same trial?

[Jodi]

I think that most here look at events concerning the Wilson case through very tinted glasses. They have high hopes and fervent expectations. Their likes and loves are totally fixed.. Their dislikes and hates are likewise.

I don't presume to know the effect of Fitzgerald or Wells on the jury. The jury and to a certain degree the judge was their target, their audience. Fitzgerald and Wells as well as their staff are like trained gladiators, trained athletes. They have studied, practiced and refined their craft. They would play to the jury as a whole and to particular individuals on the jury. We will have to hear from the jury to know how their efforts worked. (And by the way, I am sure that any good lawyer looks for that kind of feedback after each and every trial to reinforce their best techniques.)

Judge Walton's directions seemed fair and to the point.

The case was as muddled as the people's memories. There was no doubt that memory failures and/or deliberate failures to tell the whole truth prevailed for most every witness called, and of course the defendant was on trial for same.

The question that the jury must decide is whether some or all of the defendant's miscues were deliberate lies, or maybe a better way of saying it is whether he deliberately sought to impede the investigation.

Personally I don't think that he could have misremembered so consistently so many times. So my guess (only a guess) is that he tried to keep his testimony (FBI, investigators, GJ) consistent AND very unequivocating. That was his mistake. Cheney and Rove didn't seem to make that mistake. My quess is they equivocated ("not sure" "well maybe") and stuck with what they had written down. On the other hand maybe they didn't have so many chances as Libby. I mean by chances, the number of "contacts with outside people" involving the Wilson case, so it was easier for them, and in the case of Cheney, maybe they aren't so busy having many lackeys to take care of the details.

What does grandmom say here? "The proof of the pudding is in the eating." Now we see what taste the jury has left in its mouth.

[kaleidescope]

Long ago in a galaxy far away I worked in a downtown San Francisco law firm. The head of the litigation department was Bill Alsup, someone I like very much, now a federal judge.

Bill defended his client -- a large bank -- in a consumer class action involving bounced check charges. It was a jury trial and Bill lost.

Having the money to do so, the firm interviewed the jurors to find out what mattered to them, what didn't. It turned out that the jurors really didn't like Bill, and didn't take what he said very seriously, because he wore the same belt every day of the trial.

[mickey]

"... because he wore the same belt every day of the trial."

There are people with more than one belt?

[emptywheel]

Mickey

That's why you and I arent' trial lawyers, I think.

Jeff

I just spoke with a journalist whose work on this I know you trust. I think she agrees that Wells' performance was terrible there, that it was a huge mistake. She thinks there's on juror who is with the defense right now, but believes after a week that won't be the case.

I know we're biased. But even the unbiased media folks saw what we saw yesterday. I don't think Fitz necessarily made the best factual case. But he had the jurors there.

[obsessed]

Brilliant post. I wonder if Jeralyn wandered into the wrong courtroom by mistake.

[scareccrow]

Great summary, emptywheel. You capture the dynamics and let us hear/feel them "as if they were new." What I found interesting about Well's reaction was that he seemed not to have expected Z's attack. But he knew he'd made the promise, knew the judge has scolded him for not following through (on that and other things) and knew the prosecution was both skeptical and pissed about the diversion. So why was he surprised?

Either the guy isn't that good, or, as you suggest, his ego got the better of him or --- he knew this was coming and the whole response was canned/planned faux anger trying to get the jury's sympathy -- except he didn't pull it off very well.

Great live blogging the whole time.

[clbrune]

Thanks for all your coverage of this EW.

Your post tells a compelling and dramatic story. I think you're hanging out with Jane too much ;-)

It's a beautiful account of outfoxing, manipulating character flaws, and Wells' selfdestruction--a classic tale.

On the other hand, it could be that Zeidenberg simply wanted to emphasize how the Defense was full of outlandish and unsupported claims (WH conspiracy to sacrifice Libby). Then Wells blew it. And Fitz responded like a pro.

I was struck by your coverage of Wells decision to take some of Jeffress' time, when you wrote:
"Jeffress made a nice smile when Ted said he was going to take Jeffress' time. But one of the associates made an "oh no!" look when he said it."

Ha ha ha..."OH NoooOOOOOOooooo!!" It's like that associate saw the iceberg coming ;-)))

In a different part of the closing, Fitzgerald seemed to indicate that this whole investigation would have never taken off but for Russert's willingness to comment to Eckenrode. Is it astonishing that all this would hinge on one singular event? And if so, will Libby (and possibly Cheney) sit up late into the nights ahead and bitterly curse, ""I should have blamed WOODWARD...dammit!! It should have been WOODWARD!"

;-)

[karen]

EW - Riveting. Thank you so very much for everything you do and have done.

[bellesouth]

One of my favorite moments yesterday was when Wells said he must've been drunk (or drinking? can't remember). Yes, he must've been! I can't believe he admitted it! Then someone over at The Lake posted that that was the Mardi Gras defense!

[Rayne]

Nice job, Marcy, very emotive. Wonder if Zeidenberg and Fitz have done this enough together, or at least have spent enough time together on this case, so that Zeidenberg was prepared to do a great job with teeing up the ball so Fitz could get a good swing -- with or without Wells' "performance".

Fitz' opening words jogged a memory. Not exactly the right quote, but close; they are some of the closing words in the movie, "Bridge on the River Kwai," uttered by Major Clipton, played by Scots actor James Donald. "Madness, madness," he says. Wonder if there is any significance -- Clipton at one point questions the building of the bridge as potentially treasonous activity.

Hmm. It's like he was trying to say something else at the same time...

Loved the redemption of Valerie from Wells' dismissive "the wife" to a flesh-and-blood woman, too; I think that was a brilliant stroke on Fitz' part that should play well with an estrogen-weighted jury, don't you?

Great job, Marcy, stellar and historic effort.

[mickey]

about Wells. I think you captured it. I know courtroom antics are a big deal, carraige, wearing different belts every day. But theatrics have to "work." Marcy's stenos were so well done, I could see it in my mind as she typed. While it's not as good as a front row seat, I felt the Wells method just didn't "work" yesterday.

On PoliticsTV, reddhedd was mocking his show a bit, Marcy was talking about the comments, "better in the Tobacco case," but Jane was about to split her side - incredulous! I take those as eye witness accounts, biased to be sure. But the mood of the trio of eye witnesses was jubulent. Even naysayer Jeralyn was critical of Wells. So I think Wells dramatics backfired as badly as Libby's banking on Russert's not talking. And you're right, Zeidenberg played "get Mr. Alpha" like a violin.

My problem is, I laugh spontaneously every time I listen to a James Dobson or a Ted Haggard [once a year, whether I need to or not], and people believe them, so who knows?

[Adam]

People seem to forget that Zeidenberg was the one who nailed Safavian and Abramoff. He knew what he was doing.

[p.lukasiak]

I was surprised at Wells' response, because he's obviously lost it. The proper response to Zeidenberg's provocations would have been....

Mr. Zeidenberg spent a considerable amount of time talking about the case the defense didn't present. There was a reason for that --- the burden of proof lies with the prosecution, and as far as we were concerned, Mr. Fitzgerald and his associates never met that burden. Thus, while they took up three weeks to present a dozen witnesses with faulty memories, the defense rested after rebutting a fairly obviously point which appears to be the basis of the prosecution's case. We brought a series of prominent journalists that discussed the issue of the "sixteen words" with Mr Libby, none of whom were told by Mr. Libby about Valerie Plame.... The prosecution failed to make their case, and the defense decided not to waste your time presenting a series of witnesses that would show that Mr. Libby was being scapegoated by certain individuals with whom he worked."

THAT would have been impressive -- telling the jury that they didn't present the evidence because they were confident that the prosecution had failed -- and have put TeamFitz on the defensive for even bringing up the whole "scapegoat libby" opening statement...

[pol]

Marcy, if Libby is found innocent, is it all over? I'm showing my ignorance here -- is it possible that, by getting people on the record in a court of law, that evidence can then be used against others who Fitzgerald has his eye on?

[mainsailset]

CSPAN had a journalist on this morning who is following the Libby trial and made the quip that the "Bloggers have been the stars of this trial"!

As to Wells losing it, well he seems to be amongst a growing herd, McCain is losing it with Cheney & Rummy, Hillary is losing it with Obama's fundraising ... one doesn't have to stand back very far to see the steam rising out of DC these days. And I'm sure Barney got an earful yesterday when Blair gave a quick shout to Bush about the Brit's pullout.

[pseudonymous in nc]

Marcy: this isn't meant to be a jab at your note-taking, which has been a thing of wonder, but I got the sense that Fitzgerald's pace was hard to match.

What I took from your summary was the way he seemed to pick up the defence arguments and run with them until they looked absurd. Playing devil's advocate can be dangerous, but it's also a good way to weigh reasonable against plausible.

[Jeff]

emptywheel

Maybe the point I'm making is a really minor one compatible with what you and the journalist are saying. It's just that there's no way the defense was taken by surprise by the prosecution going after the lack of evidence on the scapegoat theory, no way they hadn't planned out their response, and little doubt that Wells was doing what he planned. But maybe he screwed it up. That's the relatively minor divergence I have from you on this.

[spocko]

Wow! What a great story and post! And I think that you are right to understand the power of the VOICE in all this. Also what people remember often is the parts that allow them the glimpse into the underlying "real" emotion vs. the faux outrage.

People might not know the law, but lots of them are geniuses at reading people. Part of that is a survival skill. Sometimes WHO people are stands above them and SHOUTS louder than their words.

People saw the tricks because Peter Zeidenberg gave Wells just the right prod that he couldn't back down from. I would like to point out that this is a typical MALE reaction. It has to do with Deborah Tanner talks about in one of her books. There is a fear in typical male interactions of been seen to lose status if you don't raise to a challenge or if you admit you don't know something.

Wells didn't want to lose "status" in the eyes of the Jury. He couldn't back down because he felt that in their eyes they would think less of him. It's the same reason that men who get lost driving won't stop to ask for directions. They don't want to admit to someone else (even a stranger) that they don't know something. It would be a status lowering action in their mind.

So in the short term Wells "won" by showing Peter Zeidenberg that he's not incompetent because he didn't prove his defense, but he most likely lost in the long term, which was about whether Scooter Libby should be held responsible, and NOT about his ego.

When MY ego gets in the way I notice that often it doesn't help in the ultimate goal. But I have to understand WHEN they are appealing to my ego and realise that to fall for it is to play their game with their frame.