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.

[katie Jensen]

The one thing I just cannot understand is why people like Jodi and Tom Mcguire do not feel patriotic or protective of our american values, our constitution or our laws. I cannot, other than denial, understand why they felt that Clinton deserved impeachment for lying to protect his wife and daughter (and himself and his pride) from being found out about his sex life and cheating but don't see any reason why the american public should be concerned about the fact that Libby lied to protect Cheney (and the whole conspiracy) from being found out that they outted a covert spy. (there is no doubt on the fact that she was covert and some evidence that she was a noc agent which makes her outting even more dangerous).

Why does that not matter to you folks?? A spy was outted by our government leaders whether on purpose or not it was careless, sloppy and quite possibly caused the deaths of some, including our soldiers, because they outted someone who was trying to prevent an unnecessary war. Don't americans deserve to hear all the facts, to have a debate about whether or not we engage in something as serious as killing other people to meet a goal?

Is there any doubt that the worst thing a human being can do is start an unnecessary war? Which means murdering people when there are other possibly more effective solutions. Jodi, and Tom, human beings are dying and losing limbs over the lies of this administration. The lies are clear, Libby's lies are clear and the verdict will likely be clear. Why would you want a government that does not follow it's own laws??

It has to be denial. Cause it's not logical or intelligent. It's like arguing with people who have a disease of perception. Some folks just don't want to face the facts. Fine, but lets get them out of office and start pursing liberty and truth again...shall we??

[Jose Padilla]

I tried a products liability case about twenty years ago--right before I went on my honeymoon (that's right, I got married, spent a week and a half in trial, then went on my honeymoon). The defense attorney promised all kinds of stuff in her opening, none of which she came close to proving. I was suitably outraged in my closing. The jury was out for three days before finding for the defendant.

[BS Detector]

Here's something that has gone by almost completely unnoticed.

Which Democratic candidate has said of Bush and his administration's war criminals "THEY WILL BE HELD ACCOUNTABLE."

[emptywheel]

Jeff

I hear what you're saying. But Wells said, when he started his real rebuttal, "now I'm starting my real rebuttal." And his voice was totally, totally different. This was not planned. That was clear from Wells' behavior, voice, and Jeffress' reaction.

[isaac]

i didnt get any of that from the times

great trial coverage, really brought home the drama

[Woodhall Hollow]

Marcy, what an interesting post!

I am with Jeff in that I have a hard time believing that a lawyer as "big" as Wells would be so surprised by Zeidenberg's tack. I am thinking that what Zeidenberg did is more along the lines of the straw that broke the camels back.

The whole spiel at the end about giving Scooter back to him was really weird. He didn't say, give him back to his lovely wife and children. No, he said, "give him back to ME!" [Wells]

I am also thinking about that article by Murray Waas about some of his friends trying to get him to make a deal with Fitz (was Wells one of those friends???). And also the fact that it seems likely that Libby took a very hands on approach to his defense. And I know that defense attorney's don't like it when their clients try to micromanage after the trial gets going. Esp a guy as ego-driven as Wells. So I get the sense that there was a whole lot of backstage bickering going on during the trial, and by the time the closing came, the pressure on Wells was just too much and he snapped like a snapping turtle at Zeidenberg's bit of mockery. That what you saw was an eruption that had more to do with his difficulties in managing Comstock and Libby, rather than Zeidenberg. Though if there was tension on the defense team, if anyone would've been aware of it, it would've been the Prosecution since they would have a lot of experience in reading those kinds of things, and thus tried to goad Wells by gently and rationally mocking him right out of the gate with Zeidenberg's close. Real Alpha men are good at that sort of rational attack-dog thing.

[and it is verrrry interesting to learn that Zeidenberg was the guy who got Safavian and Abramoff!]

[mickey]

As I think about it, with comments like [...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. Jeff] which makes good sense, I wonder why he brought it up in his opening at all. I'll bet that's what Libby and Cheney were supposed to testify about, and then it became clear that they were liabilities. They were supposed to do the Libby taking a hit number from the note [sonnet]. So Wells being called on it was, as EW points out, a real problem for him fueling in his ego blast. That was his "case that was..."

[Woodhall Hollow]

Oh, I got rambling along and forgot to make my main point which is that it is hard not to wonder who Wells was *really* talking to (Babs? Jeffress?) when he cried to have Libby returned to him.

[Muzzy]

I think Wells' conduct was a case of old fashioned narcissism temporarily ballooning out before he caught himself. I think the biggest pitfall for Wells was not the genuine display of angst at the beginning in its own right, but, as EW points out, the contrast it provided to his contrived emotional display at the end. Taken alone, either display probably would have been fine, but put side by side, it rubs against the grain of sensibility.

[db]

That was by far the tastiest piece of writing on the trial i've had yet. Mmmmmmmmmm mmmmmmmmmmmmm. Thank you, it was delicious; i even went back for seconds. And you're so damned cute, too. (go ahead, clobber me, i deserve it...)

[JW]

The "madness" mantra was straight out of the movie Bridge On The River Kwai.

[MayBee]

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

How do you determine that these media folks are unbiased? How does your reader?
One thing that is interesting in this trial-blogging experiment is how quickly the bloggers became like the media. Unnamed sources, inside gossip, hanging out with the people (or one person) the story is about, not asking the people you are friendly with the challenging questions...

[myth]

Emptywheel,

Great analysis as always. Thank you for all your hard work. Will you be in Los Angeles?

Myth

[Jay Rosen]

I love your interpretation, that Wells chose to defend himself, rather than defend Scooter Libby.

It might be good sometimes to have an alpha male on your team, but an alpha male who also has to be innocent is a danger.

[Scotian]

Emptywheel:

Good post, very good post indeed, especially since I remember reading the post by Pach on the dynamics at the beginning of the trial. This was very insightful, both his and your own commentary on this matter.

Posted by: p.lukasiak February 21, 2007 at 16:16 I think is exactly right, this is how Wells *should* have dealt with this instead of the over the top manner that he did chose. That Mr. Lukasiak would have something this insightful to say though comes as no surprise to me given my high regard for his exhaustive work on the TANG records and what really happened with GWB.

[Joe]

Outstanding work here. Just outstanding. Congrats.

[Friedman's moustache]

As a some time trial lawyer, I have often described lawyering as manipulating one's own emotions to manipulate the emotions of others. That probably sounds cynical and maybe is to a certain degree, but what I really am trying to get at is that you have to have complete control over your own emotions -- you simply can't be genuinely angry or upset because you will lose your clarity of thought. But you also need to be in touch with the genuine emotions you are feigning in order to get through to the jury and the judge in a truly human fashion.

As for dealing with alpha males in the court room, I have found that when they are there as witnesses the way to get them is not confrontation but flattery and indirection. Men who think they are the ultimate daddies are often succeptible to this kind of approach, where direct confrontation would be fruitless.

As for Judge Walton, I have been in front of him and met him socially on a couple of occassions. He is a gneuinely smart and tough guy with a pretty interesting background as a street kid. He lived in a pretty roguh neighborhood in DC and used to walk around with these two huge dogs all the time. I believe that he has seen things that most federal judges have no idea about. When he tells you something in the courtroom you tend to listen.

[Liam]

Jodi,your own fixed likes,dislikes, hates and loves are revealed in every comment you have made here. To me you are just another sand thrower, possibly paid to do just that.

[mdhatter]

This is WAY better than court TV!

[CaseyL]

I have a jury-procedure question.

Libby's state of mind was a big issue on both sides; whether his state of mind was that he too busy to remember (and therefore didn't lie, just 'forgot'); or whether it was that he was frightened of consequences (and therefore lied).

It's been mentioned in various blogs quite a few times that, until Fitzgerald took over the case, the Administration assumed that either there would never be an investigation at all or that it would be done by a tame hack who would clear everyone. Libby's (and everyone else's) intitial statements were made with that expectation in mind.

I believe the prosecution did at least allude to this - that Libby lied because he wasn't expecting there to be a real investigation - but is it something the jury can consider a major factor in determining Libby's state of mind?

[dqueue]

mdhatter quips, "This is WAY better than court TV!"

I raise that; this is way better than TV! Hell, this makes life a bit of a nuisance at times!

Thanks so much, EW; this is a gem.

[landreau]

Wonderful post, EW.

There's so much punditry on the line, all over the place. And the proof will be when the jury comes back. Mamma mia--the pressure's too much for me, and I'm just sitting here in New Jersey, watching.

[Jeff]

One thing that is interesting in this trial-blogging experiment is how quickly the bloggers became like the media.

I know! I heard that radio program too! And most of those mediabloggersassociation folks? They didn't even know the case as well as the regular media folks!

emptywheel, your liveblogging, on the other hand, was an event to behold. No one knows the ins and outs of the case better than you, which meant you understood exactly what was going on at virtually all times. By comparison, a bunch of the other livebloggers did not know the details, and hence could not render either what was important or even, often, what was going on at all in a coherent way. I read one attempt at liveblogging - by a lawyer no less! - that made such unintelligible gobbledeeguck of a particular legal tussle in the courtroom, I think the liveblogger just gave up right at the outset.

MayBee, I too was hoping that clarice was going to ask some tough questions of Victoria Toensing. But alas, it was not to be.

[David Amos]

Absolutely sensational rendition of what was going on. Standing ovation.

[Quzi]

Marcy,

I read this post earlier this afternoon - and it is by far one of the best posts/articles I have read on this case. And I have been following it from the beginning. Thanks Marcy for your excellent work and unique perspective!

[QuickSilver]

Liam, notice the curious unevenness in style; the use of punctuation (and spelling) which varies from post to post. Different voices? Kind of a problem if you're called back to defend a previous thread's argument.

There have certainly been paid trolls on emptywheel's threads in the past. Jodi, at least, keeps me apprised of some of the current talking points.

[Jodi]

Katie,

where have I ever said that former President Clinton should have been impeached for being a louse and a cheater. That was a waste. Just like this Wilson case.

I have posted what I think about the Iraq war over in the vampire thread. Perhaps you should read it. But briefly to help you from being confused, I think Bush should be impeached for the conduct of the war. For utter incompetence and self serving.

... and thinking about it, why are you putting me and Tom Maquire together as some kind of team? I don't run a blog. I only know about JOM because he came over here.

[jwp]

Katie,

You raised an important point that relates to something that I've been thinking about. There will be no justice. And, indeed, justice is not really the point.

The evil that these men have done is way too big for justice. Too many people have been destroyed. They will not come back. An evil has been done in our name, and we must simply live with it.

The point is not justice. That is not possible. The point is protecting ourselves, our children, and children around the world, as time goes forward.

As part of our government, we expect a certain amount of injustice, from out point of view, depending upon the group in power. For me, the bankruptcy bill was not just. For a rightwing populist, perhaps taxes are crushing, or regulations unfair.

But we expect limits.

We expect boundries beyond which our leaders will not go. No lying about intelligence to lead us into wars of opportunity. No lying about the ballot count.

And if someone goes beyond the acceptable, then our system must be able to find out. Otherwise, there is no possibility for the system to correct itself. To maintain some limits. And so to maintain some acceptability to the public.

That is what is at issue in the Libby case. Does our system have the capacity to put some limits on power.

That is what Fitz is fighting to defend.

By telling the story, he has advanced the goal. The public must feel that it can at least uncover the abuse of power. And it will be harder for the propaganda machine when stories like this are told in public.

If Libby is convicted, then some disincentive to future abuse is created -- but not much. The main protection lies in informing the public. And reminding us all that elections matter.

[tryggth]

So much has been written about Plamegate over the few years. Its really fun to go back and re-read some old articles from a time when we were young and naive. Like this one about the OVP pushing the Niger-Iraq info into the CIA.

[John Casper]

Friedman's moustache, thank you so much for the appraisal of Judge Walton.

[Steve949]

emptywheel....absolutely fantastic.

I'm looking forward to the movie produced by Jane and the screenplay by emptywheel. Definitely Oscar material!!

[desertwind]

Marcy, have you heard any accounts of how jurors responded to Wells? What does Pach say?

(fascinating to read different accounts of the same events)

And, thanks much for all your good work.

[Njorl]

>>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.

If someone is convicted of perjury, they have little value as a witness, unfortunately. One of the reasons it is important that Libby pay for his crime is that by destroying his own credibility, he has destroyed potential evidence of wrongdoing by others in power.

There has been talk about "turning" Libby. It might be done for informational purposes, but I don't know that he'll be able to testify about anything with much credibility.

[Rayne]

Njorl -- oh, I figure there's a lot of value in Scooter yet if flipped. He's got a pretty and much younger wife and at least one young child; he doesn't really want to have to leave them, no matter what the Shooter's offering. No money in world will ever sweep away the memories of a little person's visits to Daddy in jail...and is there really enough money in the world to keep that pretty trophy wife content to be a single mom for a while?

Scooter can provide validation for other data points collected by Team Fitz; I'm certain Fitz wouldn't rely on just one piece of information, after all, but having a second validating piece of info might be worth putting Scooter in the hot seat.

Kind of like Abramoff and that desk of his he's had after conviction and sentencing, reporting regularly to cooperate and divulge...Zeidenberg's got some experience with this, hmm?

[geneb5]

Wow. Marcy, this post hit the sweet spot of presenting the legal argument, providing your own knowledgeable analysis and richly describing the dynamics of courtroom personalities. Well done!

I only wish they had video of the jurors in the media room. I'd love to have seen their reaction when, as he stood right in front of them defending himself, he quick-as-an-eyeblink slammed his fist into his hand in that athlete's way he has.

I also must commend the quality of the commenters here. VERY enlightening. Bravo to all.

[katie Jensen]

Jodi,

I lumped you with Tom Mcguire because I don't understand why you are not outraged with the behavior of this administration in regard to something as important as killing people to achieve a goal. There are values that this country tries to hold onto, that have made us a great nation. We will suffer the consequences when we veer from those truths that are self evident. That's where the strength of this country has always been, in the truth and our willingness to pursue it. We haven't always done it well but it has always been at least a value.

My issue is that despite the facts there is no outrage by folks like you and Tom and there appears to be a refusal to even discuss the facts as they exist. Where there are facts they are twisted and denied. Fine, have an opinion but let's share the fact that in America, decisions are made, not unilaterally, but democratically. What is clear, whether it was done by "others" in the past, doesn't matter, the value needs to stand above politics. The value being a determination to get to the truth and not cover it up.

What is clear is that a decimination of false information is taking place and that there are some folks deliberating refusing to face certain facts. That is to me, un-american. It is not patriotic and it is damaging. Have an opinion but be willing to consider and discuss the facts, not the theories and not political fantasies.

1) Our determination to go to war was supported by a false argument, was supported by falsified documents.

2) our president spoke to the nation and used this false information to support a war, and to create a fear to garner support for war.

3) funds have been lost and misappropriated. (at least 9 billion and perhaps more)

4) our nation has gone into debt.

5) people have died, and continue to die despite the fact that we accomplished regime change and know that there were no weapons of mass destruction. We are in no danger of Iraq hitting us with nuclear weapons and yet we do not leave. What are we protecting...not our lives, which is the only reason in my opinion that we should be granted by god the right to kill another human being.

6) Iraqi people are dying, the city of bagdad continues to be in seige.

7) The american people might never have supported the war, if they had understood that alqueda did not exist in Iraq pre-war, and that Iraq did not have WMD. These are all facts we were not told by this administration and that at least some evidence suggests this administration knew in advance...why would you and Tom not want to pursue the answer to that...my god, it's the difference between murder and self protection...we as a nation have to live with the consequences.

I don't get why any human being would not be driven to get to the bottom of this, driven to consider both sides of the arguement because so much is at risk if what E.W and those at firedoglake are so concerned...can we all just agree that this is important stuff!!! That's all I ask...not some flimsy little lie by Libby but at the very least a matter that should be important to the nation.

My argument is not about your right to believe that Libby is innocent or that Bush was right to go to war, but in reaction to the idea that this is all NO BIG DEAL.

That's what gets me, and what I cannot understand.

[pollyusa]

Two handwritten notes from the jury as of 12:06 p.m., Thursday, February 22, 2007.

[Doc 301]
We would like the following Supplies:
Large flip chart
Masking tape
Post-it-Notes

[Doc 302]
May we please get any one of the documents where there there are pictures of the witnesses.

From cboldt's "No Easy Answers"

[Jodi]

Katie,

do you remember the saying, "oh, it is a profit thing?"

Well, for the Wilson-Plame case, you could say ~it is a media thing.~

It just seemed to catch on, for all the political reasons, just like Cindy Sheehan.

Have you heard any outrage yet for the LA Times "outing" 3 CIA pilots? When is this site going to run a thread on it?

I would like you to consider this Katie. If there had been no information on new attempts to get yellow cake by Sadam other than the previous acquisitions some 10 years before, there would still have been a war against Iraq.
I have said many times that I didn't see the need for a war, and certainly not for the hurry up, hurry up tempo that was being beat out by the war drums.
As I also said I questioned my brother, a combat commander, about it. He said only that in a practical sense if they were going to do it that year, they needed to do it before it got too warm, and the following year was an election year so that was the way, it was going to be.
I didn't want it to happen. At the time, I had a brother like I said in combat. He has now been over there, Afghanistan, Iraq, 3 1/2 times. The half time he came back wounded, but that didn't stop him from going back active to his unit as quick as possible.
I had a brother who were involved in the medical teams in Afghanistan, and then my father who was to retire, stayed in to help with Iraq. He is such a high rank that he didn't have to go into the combat zone, but mom couldn't stop him. In fact he pulled rank in order to go.
Now my other brother is out, thank goodness, finishing a medical specialization and going into private practice, and most probably will never go back, but dad is still treating the wounded though thankfully not in a war zone now, and my wonderful big brother is there right now in the middle of it, worrying more about his men than his own life, or his own family.

Katie, you are very wrong if you don't think that I have more pain from this war that you can imagine unless you have had a loved one die over there

[Pete]

If there had been no information on new attempts to get yellow cake by Sadam other than the previous acquisitions some 10 years before, there would still have been a war against Iraq.

There may have still been a war, but it would not have as much support if the Bush administration had not constantly hyped:
1) Nukes, nukes, nukes.
2) Saddam is in cahoots with Al Qaeda.

We started 2002 with the public being skeptical on Iraq. Support had to be drummed up.

[Pete]

As I also said I questioned my brother, a combat commander, about it. He said only that in a practical sense if they were going to do it that year, they needed to do it before it got too warm, and the following year was an election year so that was the way, it was going to be.

So politics came first, right?

[greenhouse]

People, people, now c'mon! Let's have a little common sense and decorum here. You can have pity for a troll, but it doesn't mean you have to feed it.

[LabDancer]

Njorl wrote this: "If someone is convicted of perjury, they have little value as a witness, unfortunately. One of the reasons it is important that Libby pay for his crime is that by destroying his own credibility, he has destroyed potential evidence of wrongdoing by others in power.

There has been talk about "turning" Libby. It might be done for informational purposes, but I don't know that he'll be able to testify about anything with much credibility."

It ain't necessarily so.

Speaking from not a little experience, converting a slime like SLibby from the status of convicted perjuror to a witness in the service of pursuing further accountability [SLibby's conviction at this point being an incident of justice, a commodity more "unfortunate" for it's scarcity than the effect of conviction for perjury on his value as a witness] depends mostly how much clear thinking, planning, commitment, diligence, relentless and patience one is prepared to dedicate to the task - and all those Fitz and his team have in abundance.

Among my favourite guest TV talking head legal beagle is John Dean. I wasn't able to find it with an admittedly brief effort at googling, but I commend pages 443-6 of Hendrik Hertzberg's collection of essays entitled "Politics - Observations & Arguments 1966-2004", Penguin Press 2004 - "Dean's First Day". Being both Dean's first day testifying before the Senate Watergate Committee, and Dean's first day spent before the public demonstrating his commitment to repentance and restoration to citizenship.

I readily admit that what Dean accomplished is already looking like it's WAAAAYYY too beyond what we have any reason to expect from I. Lewis SLibby.

However, even without ANY cooperation from SLibby

[I think we can't really0 expect too much from him until he's prepared to commit first to wrestling with some of his personalized array of Axis I disorders

- that virulent case of empathy insufficiency;

- in accordance with Dean's diagnosis of authoritarianism, an intense program of group therapy and pyschotherapy to get that monkey with Bolton's moustache off his back - Maybe a part time stint as floor manager on the Colbert Report would help. Hey, it couldn't hurt.;

- cojones enhancment surgery to help him deal with all that apprehension he must be suffering contemplating his next round of face time with that sneaky bastard Shooter; and

- a singularly enlightened rabbi - maybe one with the capacity to point out how scenes describing misplaced, il-conceived, overly-contrived homoerotic sex crimes can get in the way of a successful literary career - or at least give him some pointers to write them better.

SLibby has already made SUCH a substantial contribution to what I hope is turning into a commitment [Again! Well, at least Cronkhite and Murrow would feel better about us.] to rid the world of latest variation on the fascist pretentions for western democracies, I almost think we ought to name a foundation or fund after him ... or maybe a slide show - it could be called "An Untimely Truth" or something like.

But there still SO much work LEFT! Let's just hope the jury comes back soon with a message of justice and GET TO IT - DO IT!

[sheilam]

Spocko, you are right on. I couldn't have put it better. You rock.

[Jodi]

Some people have analyzed the closing remarks and think that Fitzgerald overstepped.

He brought up stuff that had not been in the trial, and so the defnense had no chance to rebut.

Further grounds for an appeal of course, perhaps a retrial, or something else.

Also he stepped over some kind of line they say, like Nifong. And he could be admonished personally.

[MayBee]

MayBee, I too was hoping that clarice was going to ask some tough questions of Victoria Toensing. But alas, it was not to be.

Well, I don't know how much Toensing can add. But if Tom Maguire (or Clarice, as you say) ever got a chance to interview Libby, Armitage, or Wilson, I'd be disappointed if they didn't ask the challenging questions.

[John Casper]

"Some people have analyzed the closing remarks and think that Fitzgerald overstepped.

Please provide links. My guess is these are all neocons and their pet journalists, no "analysis," just spin.

"He brought up stuff that had not been in the trial, and so the defnense had no chance to rebut."

What stuff, please be specific. If Fitz brought something up, "that had not been in the trial," why did Ted Wells never object? Why didn't Scooter poke him to get him to object?

"Further grounds for an appeal of course, perhaps a retrial, or something else."

The defense has to object when it's said, to even have a grounds for an appeal.

"Also he stepped over some kind of line they say, like Nifong. And he could be admonished personally."

Who is this mysterious, "they?" Please be specific and provide a link.

Why did Judge Walton not address it in his jury instructions? Do you think he wants the DC Circuit to overturn the verdict?

How dare you compare Fitz to Nifong. Nifong did to rich European American kids what prosecutors have routinely done to poor African Americans, see the Scottsboro boys. All Fitz has done is put real terrorists, the mob, and white collar criminals behind bars.

[Jodi]

John,

Clarice is one source.

Fitz addressed at least two subjects in ways that had been placed outside the scope of the trial, Cheney as the evil instigator, and Plames status. Might have been something else too.

Jeffress asked for a side bar, and Walton did act (AGAIN) putting into his instructions after Fitz's summation to ignore those, and that it should not be considered. Now I ask you, do you think that if an appeal is required, that that won't be brought up?

I would say that Fitzgerald has always wanted to try the case that people in this site champion, and he just couldn't resist to the point that he overstepped.

On Nifong,
so you think what he did was ok because it was done by others to others. Wow, that opens a lot of doors.

And more particularly what have you got against "rich European American kids?" But at least you got it right that they weren't "southern kids." Earlier that was going around.

I only use Nifong as an example, because he overstepped the bounds. Don't have any other overstepping prosecutors in mind.

[John Casper]

"Clarice is one source."
Then link to her. I want to read what she said, because I think she's dead wrong.

"Cheney as the evil instigator, and Plames status."
The Defense opened the door on both these.

"Jeffress asked for a side bar,"
But Scooter picked Wells as his lead attorney. Wells didn't object. Wells didn't ask for the side bar. Why didn't Jeffress object, if Fitz was "overstepping"?

"and Walton did act (AGAIN) putting into his instructions after Fitz's summation to ignore those, and that it should not be considered."

No, Walton was clarifying that Fitz has an obligation to rebut misleading Defense arguments. Walton also clarified, however, what the Defense was trying to muddy, that whether Cheney gave the order or not was irrelevant and that the charges are about perjury and obstruction, not the IIPA.

"Now I ask you, do you think that if an appeal is required, that that won't be brought up?"

I have no doubt Scooter will appeal until the cows come home. He's got all that GOP money to keep him out of jail, while the wounded languish with the rats at Walter Reed's outpatient facilities. Scooter schmoozed a pardon out of Clinton for billionaire Marc Rich. You want to make spurious claims that Fitz "overstepped,", do it at JOM. Over here, explain why Wells didn't object or call a side bar and all Jeffers did was request a side bar.

[Margaret]

Heigh Ho! Several months ago, I compared Jodi to something that smacks onto your windshield and gums it up so that even the washer fluid won't clean it off. She appears here to gum up the vision, but the TRUTH is so very much evident in Fitzgerald's Rebuttal, that my windshield, at least, is perfectly clean and I can see all the way to Impeachment and/or indictment of Dick Cheney. Emptywheel, you genius! You have provided a great service to this country, and I thank you! (I've printed out some of your posts for my 90 year old friend who doen't use the Internet, but has an incisive mind. He is delighted with my recounting your remarks....)

[Jodi]

So, John

what is it with you and "rich European American kids?" '

Or is it athletes, or Duke students, or what?

Margaretm

so you see through the windshield (of your mind I assume) the indictment and impeachment of Dick Cheney?
I feel I should ask, did you or do you now have a similar vision of Rove?

Frankly I think you are looking out the back window at things that have passed by, at "things that might have been" in your fondest dreams.

Nothing wrong with have hope or dreams though. If it makes you happy.