Reasonable Doubt and that Shifty Matt Cooper

by emptywheel

Well, Christy's thread on the two new notes from the jurors has exploded, so I thought I'd post my thoughts over here where it's quiet (plus, I missed you guys this week!).

Here's what the jury is asking, after 8 days of deliberation.

Question One: Matt Cooper
The first question is:

As count I 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.

Thank you.

This question pertains to the following instruction of the obstruction charge:

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.

Now, if you recall back in closing statements, Zeidenberg made a really great attack on Team Libby's assertion that the Cooper charge amounted to just a few words. Zeidenberg said:

You remember COoper said at end of conversation. He said What have you heard about Wilson's wife sending him on the trip. Libby's response, "yeah, I've heard about that." Wells suggested that differences between LIbby's version and Cooper's version, is just difference between a few words. Cooper said, I heard that too. And Libby said, I heard that too, but I don't know if it's true? But is that the evidence in the case. Do you remember what Libby ACTUALLY said what occurred in that conversation?  I'd like to play portion of what Libby said he said to Cooper.

Libby, then Cooper said, why did Wilson say it?

[Libby's GJ tape: I would have thought, off the record, that CIA wouldn't tell, who asked about it. Conversation VP has is supposed to be confidential. THey'd have said that CIA tried to do it. I wouldn't have thought that he heard this, but if it's possible he heard something unofficially, it was wrong. In that context, I said, off the record, reporters telling us that Amb Wilson's wife works at CIA. I don't know if true. But if it's true, it may explain why Wilson got some bad information at agency.]

By anybody's count, that is not a few words. By any account, that is not what Cooper said Libby said. He never told Cooper, I don't know if it's true. It's made up, made up out of whole cloth. Ladies and gentleman, Cooper could never have taked as confirmation the things Libby had told him. Cooper took this as confirmation. How could he have taken it as confirmation?

Basically, Zeidenberg responded to this "just a few words" charge by demonstrating that Libby babbled on and on and on during his grand jury testimony. Jeffress responded by showing that the False statements charge really only alleges that Libby said a few words.

For the sake of closing arguments--and for the sake of the Cooper charges generally--this seems to be gamesmanship.

But not for the obstruction charge, where this appears. The jury seems to be asking whether they should take the allegation in the Cooper false statement charge, which says...

Mr. Libby told Mr. Cooper that reporters were telling the administration that Mr. Wilson's wife worked for the CIA, but that Mr. Libby did not know if this was true.

...or whether they should take the allegation in the Cooper perjury charge, which includes multiple sections of Libby's babblings.

This suggests to me that the jury is approaching the two Cooper charges differently. It suggests Zeidenberg's argument may have done the trick, by pointing out Libby's endless babblings in the grand jury charge, he may have convinced the jury that there would be no way to confuse what Cooper said Libby said--"I heard that too"--with paragraphs and paragraphs of babblings.

I've long said Libby would get off on both Cooper charges. This question suggests to me he may get off on only one of them, the false statement charge.

Question Two: Reasonable Doubt
The text of the second question reads:

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.

Now, I cede to the wisdom of the lawyers on this question. Christy says:

You almost always get to a point where the jury has a question about reasonable doubt.  This is because most jurors get to a point in their deliberations where their mind goes "holy crap!  I may be putting another human being in jail.  What if I'm wrong to do so?

That is, to some degree this is perfectly natural. The jurors are going to get to a point where they need to clarify whether their lingering doubts. But on those terms, look at the statement--they want to know if the mere human possibility that someone did not recall an event constitutes reasonable doubt. Wow. If they're already to that point, I'd say Fitz is in good shape. Because if they've gotten to the point where a holdout is talking about mere possibility, rather than the possibility that Cooper writes "n's" instead lf "r's," then they have 1) already decided that some of the witnesses against Libby are credible and that his story is false and 2) already dismissed a good deal of the sand Jeffress threw in the jury's eyes.

But then look closer, as Jeralyn does:

Of course, this is reading tea leaves, but it sounds to me like one person (at least one, but in the minority) is taking the position that there is reasonable doubt because Fitz didn't prove that it was impossible for Libby not to have remembered an event.

[snip]

As to what the event is, I suppose it could be a conversation or a meeting. But I doubt they would have called it "an event" if they were talking about a particular statement within a conversation.

Jeralyn raises the point that the jurors are asking about an event, not a statement per se. So it seems that, for at least some of the charges, the jury has picked an event that they find completely invalidates Libby's story, not any one statement that a journalist made. Like Jeralyn, I'm guessing that it's an entire meeting. She raises two possibilities--they're thinking of the event when Cheney told Libby of Plame's identity, or of the June 23 meeting (though note, Jeralyn is mistaken in saying that the June 23 meeting was ever part of the obstruction charge--only the July 12 meeting was, though as she notes, all conversations are fair game for consideration of the obstruction charge).

I'd raise three more possibilities. First, there's the July 7 Ari conversation. There's the July 8 Judy Judy Judy meeting. Fitzgerald made a compelling case that Libby treated this--a two hour meeting in the middle of a busy week--as a very important event. And finally, there's the July 8 Addington conversation, at which Libby's own notes reveal he remembered Wilson had a wife. If the jury believes any one of these three events happened as the non-Libby witness described, then Libby would have to forget the entire event to be able to make the argument that he was "learning it again as if it were new."

In any case, if you take Christy's and Jeralyn's comments together, they suggest that this is a very mild question about reasonable doubt indeed. The standard the doubters seem to be using already seem to dismiss Team Libby's best efforts to instill doubt. All the jurors seem to be considering is a very weak memory defense. And they're dealing with something very concrete--an event, rather than a discrete statement that Cooper, for example, made at the end of a conversation.

It's really all tea-reading at this point. But the tea leaves in my tea-cup look pretty good.

Comments

[katie Jensen]

Oh Cryyyyminnneeeee!!! I'll just feel much better hearing the jury has announced a guilty on all counts, but could live with guilty on 3 counts...and really want the obstruction charge!! It's hard to wait. And the analyzing of analyzing has lost it's ability to calm me. I am afraid the only thing that will satisfy this craving it the real deal...done. Okay, I'll take "pretty good" from Marcy...but it's all we got, till monday. And what happens if the verdict doesn't come in on monday?? what does that mean, then??? I know...stay in the moment. It's gonna be a long weekend.

[mainsailset]

Good to have you back safe and sound! The snark in me has to say it seems that this jury is deliberating longer than the admin did to take this country into war! And then I have this vision of Cheney circling DC in AFII, running on fumes...Friday smile.

[Fitzmas]

Nice and quiet. :)

Nice painting of "Fitz's Dominoes" by Stephen Pitt.

http://patrickjfitzgerald.blogspot.com/2007/03/fitzs-dominoes.html

[JeffinBerlin]

Hello EW,
Do you think there is any significance in the fact that the notes were written by two different people. Today's second note seems to be the same writing as the Wednesday (?) note, but the first note is definitely in a different handwriting.
Thank you and the team for the great work over at FDL. Travel safely - Shoene Gruesse aus Berlin!

[smiley]

So this is the weekend when Scooter finally flies to that undisclosed location. He's going to be found guilty- this is what the defense fund was really all about. Time to get him out of the country before he can offer testimony against Big Time.

[Mimikatz]

I'd go with Jeralyn on the "reasonable doubt" note. It almost sounds sarcastic. Like, please explain that "reasonable doubt" doesn't mean the same as "no possibility at all." The fact that it is phrased as "is it necessary for the does the gov't to present evidence that it is not humanly possible not to remember" suggests, as she says, that the majority understand and a relatively small minority (1-2) are holding out because there is a remote possibility Libby could have forgotten.

On the other note, and reading them together, are they saying that if they think Libby would have remembered the conversation with the VP about Valerie, is that enough to convict on that count?

I have to say I've been bothered at how long this is taking. I would have thought they'd have had a verdict by last Friday. Usually that indicates a holdout juror or jurors. But maybe they are just being very, very careful. I'd be very surprised if they convict on all counts after this. They haven't come back and said they are deadlocked, but it looks like they are, and if the judge's instruction doesn't move the holdout(s), they will come back saying they're deadlockied, there will be an Allen charge, and then maybe an end to it.

[Dismayed]

Take a deep breath, katie. We'll get a couple in the G column next week. I have, however, been thinking of the prospects of a mistrial. Though it seems that we will get verdicts, I think that a mistrial or hung jury would be very bad for Libby. For one thing the "Cheney may testify" BS won't fly again, and that got them a lot of lattitude in Jury selection. Libby's only hope is for the charges to get poured out here and now, and that at this point seems unlikely.

[Lindy]

Welcome back, Marcy. All the speculation (running in circles) was making my head hurt, so I actually got some work done this afternoon. I'm glad you've been in Washington. You've done a super job. Thanks.

[DeWitt Grey]

Both notes (particularly the reasonable doubt note) betoken a degree of hairsplitting that gives me a bad feeling that however less than compelling Team Libby's defense was at trial they appear to have done a bang-up job picking the jury. A mistrial might not be so great for Mr Libby but it's a good outcome for the OVP/VRWC -- it's hard to get at Cheney directly until the Libby trial is resolved, and the VRWC seems to have done a pretty good job of dampening media interest in the case (and given the embarrassment of the media at trial if there's a mistrial we can expect a tidal wave of abuse purporting to deter Patrick Fitzgerald from retrying the case).

I hope I'm dead wrong but this investigation from the outset has been all about the single-minded determination of this Administration to avoid accountability for its actions.

[p.lukasiak]

two points....

1) the obstruction charge has nothing to do with what Cooper told the FBI (i.e. the "false statement" charge) -- it is specific to the grand jury testimony. My personal opinion is that this is simply a dumb question---they are asking whether they need to find a specific quote that conforms to the the charge, or whether they can rely on a full paragraph of Libby's blathering.

2) I think that the "an event" refers not to any specific instance where Libby was told about Plame--there are far too many of them. Instead, I think that "event" refers to a conversation with Cooper and/or Russert -- i.e. one of the jurors is saying something like "hey, maybe he just misremembered his conversation with Cooper, and thus isn't guilty of perjury" -- and everyone else is saying "the issue isn't whether he remembered the details of his conversation with Cooper, the issue is that there is no way in hell he could have 'remembered' a conversation with Cooper the way he described it."

[Gore Won]

Just a theory: the reason why the juror wanted a dictionary was to look up "reasonable". I'm surprised that John Hannah atestment to Libby's "notorious" memory is having any effect: no one else he worked with--Addington, Martin--cited it. I can only imagine that the jury is wondering why these seemingly inocuous statements warrant a perjury charge. BTW, Judge Walton apparently has memorialized a memoradum stating that Libby (if he is found guilty) could have helped his case by calling seral witnesses including his AA, Addington, and of course, Cheney.

[Canuck Stuck in Muck]

Hey, Marcy! Great job you and the firepups and all are doing. Believe me, if the Pulitzers weren't, by definition, restricted to the print journalists (a specious distinction in this day and age, mind you), you and your comrades would have to settle for sharing one! But I digress. On the question of doubt. I say that it's possible Libby's brain was sucked out by aliens that day on the phone with Russert, which could easily explain why Libby heard it as if for the first time. Possible? Yes. Probable? No. Remotely possible? Not really. Reasonable doubt-inducing? God help us if the answer is yes for any member of that jury. And the question of whether or not it was humanly possible for Libby to have forgotten that he ever heard about Valerie prior to his conversation begs the question that Russert told him any such thing. Even I could harbour a reasonable doubt that Russert was being disingenuous (though why he would feel compelled to be is beyond me!). But there is no way in Hell that 8 or 9 or more (who knows) people are lying or (simply?) misremembering their conversations with Libby, and all misremembering the same thing? Reasonable doubt, be damned! Only someone who was examining the Russert conversation in a complete vacuum, with no consideration for the remainder of the evidence, could ever imagine that there was reasonable doubt regarding Libby's memory. Save me from these people!

[Jim E.]

Given that the jury has asked for so many Post-It notes and poster sheets, would it kill them to write a rough draft of their questions before sending them off to the judge? They have plenty of paper around to do it on. They're always scribbling and editing the question, and the double-negative on th reasonable doubt question makes it difficult to read. They must be too busy deliberatin' to write clearly. (Of course, if they had any idea that every syllable of every word they wrote would be analyzed every night on the internets, they'd probably waste too much time wording the perfect question.)

[Jim E.]

Two contradictory thoughts occurred to me:

1. The reasonable doubt question, no matter how stupid (as worded, the answer to it is self-evident), suggests a hung jury. If a juror, or jurors, has an unreasonable definition of "reasonable," there are no counts that could withstand such skepticism. Therefore, this bodes poorly for the prosecution because the jury is divided.

2. On the other hand, the order of their questions make it seem as if they are considering count 1 last, which makes sense. And if they'd already voted not guilty on counts 2-5, one wonders why they'd waste a moment deliberating on count 1. They'd only delve into count one if at least one of the other counts has found Scooter guilty.

But I am confused about count 1. If Scooter is found guilty of any of the other counts (or at least those pertaining to his GJ appearance), wouldn't that, by definition, make him guilty of count 1? For example, if the jury found Scooter guilty of Counts 2, 3, 4, and 5, could they also find him "not guilty" on count 1? That wouldn't make any sense, would it?

[LabDancer]

Like most everyone, I defer to Jane’s theory over the idea that the jury is DREADlocked. I’ve worked in front of a lot of juries – this one is waaaay too happy to be in conflict. I think that if Judge Reggie starts to give the pep talk or goes anywhere near the ‘special’ verdicts, this jury first will look at him like he’s gone loopy and then will start to giggle.

I do wish to take this opportunity to make this ONE big point - I think it’s big anyway - about Count 3 and these “protracted” jury deliberations.

My ‘one big point’ is actually comprised of a lot of little points. But if I made them all this comment would be too thick to chew and too big to swallow, and - the omnipresent danger in all commentary – [Particularly mine. Water dogs are notorioiusly poor at quick-blogging – tho they are pretty fair all-night waltzers.] to paraphrase Col. Bat Guano in Dr. Strangelove it might turn its author into a deviated pedant.

I report this because putting this comment up front might seem no more than a Leap To Judgment - when they are actually conclusions. Maybe someone will convince me to go through all the pieces. Or maybe just one more comment would suffice to recall the path I took from several themes to these conclusions. In case I forget, could someone tell me - so I can realize it as if anew? Anyway - ladies & gents, boy & girls – my conclusions:

(1) A verdict of “Not guilty’ on Count 3 is likely and intended.

(2) The fate of Count 3 has nothing to do with its primary purpose.

(3) The primary purpose of Count 3 is to influence the jury’s approach to and view of Count 1.

(4) Count 1 is the red meat of the Indictment.

(5) Count 1 is the red meat not least because a verdict of “Guilty” on it necessarily brings carries with it the same verdict on Counts 2 and 4 - the “Russert counts”.

(6) The secondary purpose of Count 3 is to attract a verdict of “Not Guilty”.

(7) A verdict of “Not Guilty” on Count 3 is the ONLY verdict on the ONLY charge in the Indictment that can be held before an appeal panel as proof that the jury had a proper handle on the key concept of “reasonable doubt”

(8) The tertiary purpose to Count 3 is that it extended the relevant time frame – and so expanded those things the jury might use to judge whether Libby lied; and dragged in the meeting Cheney had with Libby on Air Force Two.

(9) On reduction to its constituent elements, and in considering how those must react each to each other, reaching a verdict of “Not Guilty” on Count 3 should not pose any difficulties to a jury comprised of rational, reasonably well-educated, open- and fair-minded adults.

(10) My reading of all entrails says this jury is comprised at least mostly of well-socialized adults with responsible jobs who benefited from schooling above the mien for their community – and well over that for the country.

(11) Since the general view seems to be that the lawyers on both sides of this trial are at or near the top of their calling, I am bound to conclude that any hecklers in the cheap seats still nurturing doubts on the objectivity and genuineness of these jurors must be suffering the effects of hidden agendas, blind faith or irrepressible fandom – and should take off their hats and look for insignia.

(12) Yet this jury of bonded, fair, smart, objective, well-intentioned citizens – or some of them – appear to have wrestled - maybe ARE wrestling, with Count 3!

(13) Therefore - if I may be pardoned for one tiny yet opportune commandeer-ment from the syntax of the Presidential progenitor - it’d only be prudent to look elsewhere for the cause of their difficulties.

(14) The most likely candidate for it, as I may hold to this brash line a bit longer, lies in the construction and language of Count 3 - or as lawyers are wont to intone, in how Count 3 is ‘framed’.

(15) At least superficially and certainly alongside the other 4 counts in the Indictment, Count 3 looks like a lemon. It brings to mind Ralph Nader’s expose on the quality of the automobiles rolling off the assembly lines in Detroit on Monday afternoons. It doesn’t matter how little, or how much, one stares at Count 3, this conclusion is inescapable: Compared with its companions Count 3 stands out for nothing but its inferiority and as a needlessly convoluted construct replete with ambiguous phraseology.

(16) As if to add insult to its infirmity, the jury has been called on to apply to the circumventions of Count 3 nothing more than the least compelling evidence the prosecution chose to bring to this show. In the end, Count 3 deserves no more time and attention than it would takes to envision the inevitable outcome of pouring the thinnest gruel into the leakiest vessel.

(17) I conclude that not just in spite of - but DUE TO – Count 3 constituting such an easy target for the most worst sufferers of dislocated shoulders hurling octopi from the highest reaches in the nosebleeds – it is greatly unlikely to have been produced from careless selection of substandard materials and shoddy workmanship.

(18) Count 3 may SEEM the worst output from the laboratory of mad Dr. Frankenstein, but just as Peter Boyle served to make even Gene Wilder appear a deft hoofer, Count 3 holds the capacity to serve this Indictment like Colbert served parody to the President at last year’s White House Press Corp dinner. It is framed so awkwardly that next to its cousins it appears no more than a Borat in skivvies on stage with Falwell and Robertson in their Sunday best. I suggest we are compelled to consider the possibility that the prosecution has lit upon a tactic of calling on the jury to try to use such an obvious leading candidate for selection to an All-Ugly team as is Count 3, in the apparent service of supporting the weakest evidence it could argue with a straight face was relevant to the Indictment, in clandestine service. Just like Colbert and Borat, Count 3 not there to win a beauty contest – but to make a point.

(19) As to the precise details of the clandestine operation the prosecution dispatched Count 3? In this I feel it only fair to point out that your guess – how to put this gently – is not as good as mine.

(20) Should you choose to skip the comment which I currently plan to embed down stream on some as-yet-untitled future thread here, and thereby gain a fuller appreciation for the precise reasons why this is so, then chacun a sons gout you.

(21) To the benefit of any readers who still admit to being followers of the Bush administration – the only administration in the history of the United States which is pleased to have the public accept that it is functionally illiterate in the French language - a loose translation of that into English, in this context would be ‘Don’t blame me – you who voted for him.’

(22) For present purposes I suggest we agree to this: This MY guess we’re talking about here - if you have your own then go write your own comment.

(23) That settled, my money is on Count 3 being aimed by the prosecution to act on the jury like a drill at boot camp.

(24) At the time it can seem like nothing more than a world of pain for no conceivable gain. It’s only later, when you’ve just pulled your buddy out of a fire fight, that you start to realize that without that drill you would not have held the day and got your buddy or even yourself out alive – and you begin to learn that the better part of victory was made up of the same stuff as the commitment to finish that boot camp drill.

(25) To go to all the trouble it must take to get such a charge inserted into an indictment with the profile this one has suggests the person who thought it up is forged of an alloy with a set of characteristics – restraint, humility, a thick skin, forbearance, commitment, focus – peculiarly suited to the role of prosecuting those who have chosen careers in organized crime, institutionalized corruption, corporate conniving and politically-motivated mal-information.

(26) I foresee the smoke from the jury room growing whiter and whiter as the jury finds its appreciation of and attraction for Count 5 increasing, by having been compelled to the exercise of working through Count 3 – like that was the plan.

I close with this caveat - and the one risk that the draftsmanship of Count 3 carries.

If Judge Reggie Reggie Reggie figures out that the jury are keeping this going as their own closed-circuit blog to see how to get Bush and Cheney impeached, I think he might explode.

- LabDancer

[QuickSilver]

The fact that the jury is considering the wording of count 1 statement 3 (obstruction relating to Cooper) must mean they are not yet in agreement on count 1, statements 1 and 2 (obstruction relating to Russert). They only need to agree on Libby's guilt for one of those three statements to find him guilty of the charge.

So it troubles me somewhat that they are asking about Cooper. Does it mean they haven't resolved the Russert charges, or perhaps already found "not guilty" on them? Or was it just a nerd question, posed right as the jury was beginning to consider count 1, the obstruction charge (I think they did that before, then answered their own question; it would be in character for this jury to ask).

Mimikatz, I also heard the whine in that "reasonable doubt" question; I sense it reflects one or two holdout jurors. By inference, I believe their "reasonable doubt" relates to whether Libby could have forgotten the Russert conversation. I sense that the jury is close and probably getting closer, but that someone needs to sleep on things over the weekend.

[Lurcher]

"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."

No

This is another edition of simple answers to simple questions!!

Seriously, though, isn't it as simple as that - "not humanly possible" is a standard far higher than reasonable doubt. But, of course, I'm merely a mathematician.

[Jodi]

A point on happiness-

A jury that seems happy when they are getting an agreement from the Judge for some time off really doesn't indicate how in accord they are on the deliberations.

Also I can imagine that everyone is happy when their cookies are delivered each afternoon.

When I look at tea leaves, I see tea leaves.

[obsessed]

Lab Dancer: I usually skip past ultra-long posts, but I started on yours and it held my interest until the end. I'm definitely going to read it again after the verdict and its repercussions have settled in.

[John Casper]

Lab Dancer, I've never read a more clearly written, more insightful blog comment.
Thank you doesn't begin to say it.

[Nell]

Illuminating, LD, thanks.

Unlike John C, I've read more clearly written comments, or at least ones written more concisely and in less roundabout way. But the substance was worth the throat-clearing.

[kim]

That is one fine post by LabDancer.

[kim]

I've also had a very enjoyable morning tracking down and reading several more comments by LabDancer. Looking forward to reading more of them in the future.

[emptywheel]

I agree that the Obstruction charge is solely about GJ testimony. In which case, the response to that should be easy--the point I was trying to make by referring to closing statements is that this question was a central feature of teh c statements, so it is therefore not unsurprising that the would ask this.

I'm not convinced I've seen the final verdict form. But there seemed to be some agreement that the Count 1 charge would have tick marks for which lies supported teh case. If that were the case, I can see why they'd be asking about this.

In other words, QuickSilver, I don't think it necessarily holds that they're focused on teh Cooper charges and not the Russert ones.

[J. Thomason]

I will likely never get through my new copy of Beelzebub's Tales to his Grandson if emptywheel keeps rolling along with her searing analysis and attracting the likes of this prolix but illuminating LabDancer. Even if I don't always fit in, I more than likely am enjoying and learning. And to a public purpose--a woodsy bacchanale no doubt.