Circling Like Vultures

The jury has now deliberated nine days. Best as I can reestablish with my PACER password glued to my computer at home, here are the breadcrumbs the jury has left for us to follow its trail.

Wenesday, February 21, PM

[Jury asks for easel, masking tape, and post-its. Rayne and Marcy sigh in office supply giddiness.]

Thursday, February 22, AM

May we please get any one of the documents where there are pictures of the witnesses.

Tuesday, February 27, 4:30 PM

We would like clarification  on the charge as stated under Count 3 specifically:

Page 74 of the jury instructions, "Count three of the indictment alleges that Mr. Libby falsely told the FBI on October 14 or November 26, 2003, that during a conversation with M. Cooper of Time Magazine on July 12, 2003, 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 of this was true."  (i.e., is the charge that the statement was made or about the content of the statement itself)

Judge's note at the bottom, sent on Wednesday morning — I am not exactly certain what you are asking me. Can you please clarify your question?

Wednesday, February 28, 10:45 AM

Psyche! After further discussion, we are clear on what we need to do.  No further clarification needed.  Thank you.  We apologize.

Wednesday, February 28, 3:45

We would like another big Post-it pad. The large one for the easel. [Cue sighs from Marcy and Rayne; cue grumbling from the office supply agnostics.]

Thursday, March 1, 4:00 PM

[The jury requests a dictionary and requests to be let go the following day (Friday) at 2PM. Judge Walton says no to the dictionary but yes to the early dismissal.]

Friday, March 2, 10:30 AM 2:00 PM

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.

Friday, March 2, 2:00 PM

As Count 1 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.

Monday, March 5, 4:05?

[3 questions, all relating to Count 3.  The first two appear to relate to the timing of the statements. The third relates to whether the jurors can use evidence from the grand jury testimony in their consideration of whether Libby lied in his FBI interviews on October 14 and/or November 26]

Now, obviously, they've barely let me in the court room, much less the jury room, so what I'm going to say is pure conjecture. But this sure seems like a vulture flying in slowly tightening and accelerating circles over its prey.

On days one (a half day), two, three, and four, the jury progressed methodically, with all the order you might find in a corporate retreat. Late on Tuesday, day five, the jury hit its first stumbling block--a seemingly simplistic confusion over whether the charge related to Libby lying to journalists--or to the FBI--on count three, the false statements charge alleging Libby lied about his conversation with Matt Cooper. After Walton asks for clarification the following morning (day six), the jury decides they can answer this on their own. The jury appears to regain steam by later that day--at least, they've gone through their first flip chart. Then, on day seven, they seem to hit another stumbling block. They ask for a dictionary (and an early Friday). The jury, observers guess, has hit a stumbling block on a legal definition, perhaps on a regular doozy like reasonable doubt. And sure enough, early the next morning they ask for clarification on reasonable doubt--though they hold that request until the afternoon, as if they continued to try to work it through themselves. Also on day eight, they ask for clarification on the part of the obstruction relating to the Cooper charge.

Note, this is a different charge than the one they previously asked about (Count Three, false statement), but as I explained in a post on this question, it seems to suggest different thinking about the two Cooper charges (the false statement and the perjury).

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.

Effectively, by ordering the jury to refer to the entirety of the grand jury testimony this morning, Judge Walton basically told them the allegations made in the perjury charge--the paragraphs and paragraphs of babbling--were available for this charge.

But that didn't answer the questions about the Cooper charges. Late in the afternoon on day nine, the jurors asked three more questions about the charges. 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. We await indication whether they all believe he lied in the same interview--but Judge Walton seems inclined to instruct them that a lie in one of his interviews was sufficient to find Libby guilty.

But that's not enough, it seems, for them to convict on the false statements charge. They also asked if they could use the grand jury testimony to support their consideration of the false statements charge.  Again, this seems to mirror their earlier confusion about whether they should consider the obstruction charge using all the babblings of the grand jury testimony, or only the sparse statements alleged in the false statements charge. More and more evidence seems to suggest that Zeidenberg convinced them with that the babblings in the grand jury testimony could not be equated with Cooper's version of the statement. Mind you, I'm certain that Walton will instruct them that the can only use the babblings in an ancillary consideration of the false statements charge, if at all. But it's as if they're saying, "well, if we're convinced he lied in March about his Cooper conversation, is it really possible he told the truth in October and November."

Now, by all accounts, Count 3 is the weakest charge. It basically pits Libby's testimony against Cooper's and, to a lesser degree, Cathie Martin's. Whereas all the other charges involve either more substantive differences between Cooper's and Libby's testimony, or many more witnesses. Which would seem to suggest that they're honing down on the last charge, trying to come to agreement over the fifth charge.

Of course, we don't know that. They may have perceived the Cooper charges to be easier to work with. They may be moving back and forth between all the Cooper charges first, before they get to the Russert charge. The biggest piece of evidence supporting this notion is that they asked a question about the obstruction charge at a time when they should have been convinced of Libby's guilt on Count 4. After all, simply a conviction on Count 4 might be enough to convict on Count 1. And if they had already decided on the seemingly easier Russert charges (Counts 2 and 4), then they wouldn't need to consider the Cooper allegations in the obstruction charge that closely. Remember, though, while a guilty verdict on one out of the two perjury charges is sufficient to a guilty verdict on the obstruction charge, it does not necessitate an obstruction charge. The jury may feel more confident convicting for the stronger charge of obstruction if they can show that Libby made a coherent attempt to cover-up any evidence to support an IIPA charge, rather than just making up a pathetic, isolated, story about Russert.

But to me it seems much more likely that they've almost honed in on their prey. Accelerating circles, nearly ready to pounce.

Comments

[kim]

"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.

[zAmboni]

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

[Teresa]

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.

[Teresa]

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?

[bleh]

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.

[klem]

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.

[2lucky]

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.

[Teresa]

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.

[lolo]

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

[2lucky]

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.

[jwp]

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.

[2lucky]

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.

[Dismayed]

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.

[the cubist]

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.

[the cubist]

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.

[2lucky]

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.

[2lucky]

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

[the cubist]

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.

[desertwind]

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.

[Dismayed]

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.

[Dismayed]

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.

[desertwind]

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.)

[p.lukasiak]

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.

[Jeff]

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.

[cboldt]

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.

Instruction 2.52 - MULTIPLE COUNTS -- ONE DEFENDANT

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.

[emptywheel]

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...

[cboldt]

-- 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.

[William Ockham]

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.

[Mimikatz]

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

[Bustednuckles]

CONGRATULATIONS MARCY!!
GUILTY on 4 out of 5.
YOU MADE HISTORY!!!!!

[Jodi]

All.

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.
Appeals.
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

[greenhouse]

Hey Tokyo Jodi

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

Now stick that in your fake doctorate cap!

[greenhouse]

Hey Tokyo,

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

[mainsailset]

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

[Dismayed]

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

[mainsailset]

Dismayed, excellent!