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March 05, 2007


"Turning and turning in a widening gyre, the falcon cannot hear the falconer. Things fall apart, the centre cannot hold, mere anarchy rules the world. The blood-dimmed tide is loosed, and everywhere the ceremony of innocence is drowned; the best lack all conviction, while the worst are full of passionate intensity.
... And what rough beast, it's hour come at last, slouches toward Bethlehem to be born?" - WB Yeats

I was reminded of this by your post EW, of course the theme here is exactly the opposite... a tightening gyre by the jury, things coming together,the opposite of anarchy, a triumph of the legal system.

EW, does this mean that we can have a Libby conviction party this weekend? Your brewskis are on me :)

Great post Marcy. I hope you are right about the steps the jury has taken. I imagine being in the jury room and I would have started at Count 1. After seeing that I need to resolve counts 4 and 5 before determining the obstruction charge, where would I go next? I would have thought the false-statement charges would be the easiest as they sort of stand alone. That would also be in order of the counts and the accountant in me would always go in order. I would have then gone on to counts 4 and 5.

Jeralyn sees it the way you do and I so hope you are right and my method is not the one they chose. I would hate to think that at most they've only finished with the Russert false statement charge. Not possible in this length of time, surely? It just worries me because I would have determined the outcome of the counts from October before going to the counts that happened later.

After looking at your timeline of questions again, I am more sure you are right. They asked about count 3 and then count 1 (about the Cooper part) and are now back to count 3. I don't think they would have gone on to count 1 without resolving 4 and 5. They are just really hung up on count 3, huh?

Well, these are cryptic clues, and they could -- as you note -- indicate anything from near-convergence to a hopeless bogging-down.

But I'm heartened by other observations of the jury at Firedoglake, the Nexus Of All Things Scooter, in which several people have said they seem to be havin' a good ol' time, they're all tight with each other, smiling, and so on and so forth.

So I concur in the raptor model. And for the record, I'll go with guilty on a majority of counts, but not all.

I think the Cooper charges are all the easiest ones to come up with reasonable doubt for, and so I am surprised that they are still tussling over them. I have been thinking that Libby would be convicted on all but the Cooper-specific charges ( but guilty on Count 1 because of Russert, etc.). But the jury's seeming focus on those counts seems to indicate to me that they may be close to convicting on Cooper too.

Thanks for your post--now I can go to sleep.

I don't know if the jury is simply not reading the instructions carefully - the first Cooper note had me scratching my head, the second too.

In order to review the Cooper charges (related to July 12th), they'd necessarily have to have made some determination as to the truthfullness of Libby's testimony with Miller and Russert, which occured earlier. If they found the testimony of Miller and Russert wanting, that would lend credence to the truth of Libby's statement to Cooper (if you discount all the government witnesses).

Since today's questions seem to relate to whether they had to decide if Libby lied about Cooper on the first or second FBI interview, or both, then it would seem they've resolved the the issue as to whose testimony was more credible.

It is interesting to note that Instructions on false statements (counts 2&3) have language specifically related to Count 2, but not Count 3. That may have confused the jury. But, Wells, in closing (Libbylive Bond-Four), did a good job with Agent Bond on FBI interview number one, where Tate made a statement that Libby hadn't adequate time to review his notes, emails, etc and his statements to the FBI and that Libby's statement may be inaccurate. Tate asked for that to be in Bond's 302, but she didn't include it, nor does she remember part of Tate's statement. So, the jury may have reasonable doubt on Count 3 on Oct 14, but not on the second FBI interview. The jury may feel that Libby would have had additional time to review material and would add credence that his second statement to the FBI was a deliberate lie, but his first statement to the FBI could be subject to reasonable doubt.

2lucky, I think you are right. The second FBI interview was Nov. 26 which would have given him plenty of time to review his notes, etc. The jury must be trying to resolve how to find him guilty on one date but not the other; thus their question today.

I feel like a vulture hopping from thread to thread. This is so exciting. Everyone was having such a blast on the liveblog today. Ew, excellent job as usual. Make sure you check your last thread Shorter Judge Walton towards the end. Please try to sleep tonight. lolo

Teresa - I don't know, I'm just of the belief that a good faith jury would necessarily, based on the chronological order of reporters testimony have to resolve credibility vis-a-vis Libby/Russert/Miller in order to fairly weigh the Cooper charge.

I can see how a jury would, to give Libby every benefit of the doubt, weigh the testimony of the government officials' testimony apart from the pre-Cooper reporters' testimony. While it's a stretch for me to disassociate the officials' testimony from the reporters' testimony, the jury may have needed to address whether Libby really did forget the day-to-day stuff, but may have really been confused if reporters told him before he told Cooper.

I want to see Libby found guilty because I believe that he is guilty, and part of a larger subversion of our government.

But I take no joy in his pain, or his family's pain. The whole thing sickens me.

But not nearly as much as the carnage in Iraq sickens me.

No party for me.

jwp: I hear you: a guilty verdict here will hurt Libby's family, who are innocent of his acts. I take no joy in that. A guilty verdict for Libby will provide no solace for the innocents in Iraq or in our armed forces. However, I do believe that a guilty verdict here will be a victory for the rule of law, and for that, I would be deeply grateful. That's what this case is about: the triumph of our system of jurisprudence over one of those who feel themselves above it.

It does seem as if the jury believes Libby lied at some point. However, you can't convince me that at least a few people on the jury didn't have a solid grasp of what "reasonable doubt" means. The fact that they had to ask the judge means that they have at least one bonehead on the jury who can't keep up with the rest of the class, and who is stubborn enough not to move forward until their poor little mind(s) is/are satisfied. Therefore, the sharper kids in the jury had to ask the teacher, 'cause the dumb kid simply wouldn't accept it coming from other juror. The request for photos is a slightly less silly result of the same dynamic. We had all better hope that weak yet stubborn mind in the jury room doesn't ultimately melt down and decide, "I can't understand it, so I can't convict." Yes guys, some of the jury think Libby lied, but the baby is still in the bathwater.

My gut feeling is that all this unity you keep talking about is by credit of extreem patience from a few sharp jurors. If you think it's all peaches and cream in there while the jury collectively sorts this out you are kidding yourselves. They are struggling. I just hope the sharp kids can get the not so sharp kids over the hump, or at least over their egocentric sense having something important to decide for the first time in their lives.

2lucky, you're a bright guy and your comments are all astute but one: in your final sentence, you made the snottiest and most malignant attack on our jury system that I've heard in a while. As if these jurors had never made a tough decision in their lives. As if they could do worse in handling major decisions than the Bushites, or the rest of the current power elite, who keep him there. You know, the Superior People.

A lot of the people you seem to me to be sneering at are doing the dying and the killing in our name in Iraq.

Pretty sorry theme there, guy.

Oops! Not having commented here before I mistook 2lucky as the author of Dismayed's comment above; I thought the author's name was posted above the comment. Sorry, 2lucky.

Pretty sorry theme, Dismayed.

the cubist: One: I'm not a guy and Two: what is exactly is your accusation? I assure you: the dying and killing in Iraq makes me heartsick. For everybody involved.

the cubist: Appreciate the apology, as I don't post to cause harm, online not.

My apologies again, 2lucky, and add one more for mistaking your gender. I meant to comment on this sentence in Dismayed's comment:

"I just hope the sharp kids can get the not so sharp kids over the hump, or at least over their egocentric sense having something important to decide for the first time in their lives."

I think this is snide, and an undemocratic attack on our jury system.

I actually had the opposite feeling from Dismayed:

that it's a too-clever-by-half element on the jury holding things up. Can't quite explain what I mean, except that the reasonable doubt question just felt too 'cute'.

Whatever the jury dynamics, I do think they're finding Libby guilty on at least three of the counts.

Snide. Yeah, I'll cop to that last line as being a bit snide. It is however, based on observation of human nature, and an attempt to express what I'd be willing to bet are the accurate frustrations of some of the jurors.

Not in any way an attack on the jury system. Just a cutting way of expressing what I suspect is at least one juror's behavior inside this panel.

Had a long lunch with a very top tier litigator this week. He said exit interviews almost always find that juries make decisions based on emotion, and who they liked. Not the facts. I think we have a few guys in here trying to get this jury to look at facts, thank lucky stars. But when they have to come to the judge for a definition of reasonable doubt, that speaks to a dense and egocentric personality in the group. Thus, that last line may indeed be an accurate expression of the dynamic playing out. I can live with being a little snide once in a while.

I tend to thing we're going to get a couple of guilty verdicts as well. I'm just way too aware that juries are very unpredictable, and I'm not counting any chickens before they hatch.

Hmmm, just re-read Dismayed's 01:45 comment and realize we're picking up the same vibe.

There really was something odd about the reasonable doubt question. The phrasing and that it was asked so late in the process.

(should be interesting to hear about their deliberation process. once they've finally convicted the guy, I mean.)

We have not yet seen the questions, but it seems that the jury implied it believed Libby had lied about the Cooper charge in one--but perhaps not both--of his FBI interviews.

it seems to me that the jury was asking if it could convict on count 3 if it found reasonable doubt for the false statement charge on one of the two dates in question.

In other words, they think that Libby gave non-factual statements during both FBI interviews, but have "reasonable doubt" that Libby intended to lie during the first interview--and without intent, there can be no "false statement" guilty verdict. Their thinking is that Libby, being unaware of the exact line of questioning during the first interview, may have attempted to reconstruct events "on the fly" without specific intent to lie --- but that the falsity of the statements had to be evident to Libby by the time of the second FBI interview once he'd had two weeks to "reconstruct" events.


Re the obstruction charge -- IIRC, the judge instructed the jury to do a "finding of facts" on each action in order to reduce the possibility of "reversible error" in the trial. Thus, regardless of whether the jury finds Libby guilty of obstruction in lying about Russert, they still have to determine if the Cooper conversations constituted obstruction as well.

IIRC, the judge instructed the jury to do a "finding of facts" on each action in order to reduce the possibility of "reversible error" in the trial. Thus, regardless of whether the jury finds Libby guilty of obstruction in lying about Russert, they still have to determine if the Cooper conversations constituted obstruction as well.

I'd be curious to see whether you could find any evidence to substantiate that recollection, because I'm unaware of it and skeptical. In the jury instructions, Walton specifically states that the jury need not find that more than one of the statements was false to find Libby guilty of the obstruction charge. That's not, strictly speaking and necessarily, inconsistent with what you're claiming here. But it is at odds with it, and I have no recollection of what you're talking about. So I'd like to see the evidence.

The jury may have taken Instruction 2.52 as a charge to make a finding with regard to each enumerated allegation in the various counts.


A separate offense is charged in each of the counts of the indictment which you are to consider. Each offense, and the evidence which applies to it, should be considered separately, and you should return separate verdicts as to each count. The fact that you may find the defendant guilty or not guilty on any one count of the indictment should not control or influence your verdict with respect to any other count or counts of the indictment.

I don't think instruction 2.52 stands for a requirement to render a finding with regard to each enumerated allegation in the various counts, but I can see where a careful jury (this one seems to be) would either on its own, or by parsing this thusly, decide to reach a finding on each enumerated point.

On a separate subject, I think the "date unanimity" requirement pertains to Count One, not to Count Three.

cboldt--On the Date unanimity--no. We were told in very clear terms that all three questions related to Count Three. Obviously we don't have the note, but...

-- We were told in very clear terms that all three questions related to Count Three. --

I believe you. But I see plenty of opportunity for confusion on that. The Cooper stuff happens to be the third enumerated "lie" in count one, and perhaps the jury wrote "count three" in reference to that. We'll know soon enough. I just wanted to be on the record, right or wrong.

Verdict's in. Guilty on all counts except count 3. The takeaway: A key member of the Bush-Cheney administration obstructed justice while working for the administration.

Looks like you nailed it completely, EW! Congrats for a job very well done.

GUILTY on 4 out of 5.


Kind of anticlimatic once it is over...

The Monday Morning game analyzers will have a spurt of activity.

Sentencing in June.
Motion for new trial.
Maybe a little excitement in Jan 2009.

I am sure many here will enjoy for a little while, what previously they would have considered a mere pittance, a few crumbs, compared to their hopes a year or so ago, but

the anticipation is over, the fun is done.

-- Jodi

Hey Tokyo Jodi

You played yourself...
Ain't nobody else's fault, you played yourself

Now stick that in your fake doctorate cap!

Hey Tokyo,

It's just the beginning. Let the dominoes start to fall!

Jodi, today even you must see that it's too late to close the barn door. That cow has left the building.

The good news, Jodi. Crow meat is organic. And it goes well with sour grapes!

Dismayed, excellent!

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