Libby: Day Six, No Verdict

Bump and Update: Per Firedoglake, no verdict today, the jury has gone home.


Libby: Factors to Consider While We Wait

While predicting what a jury will do -- or even where they are in their deliberations -- is fruitless, there are some things to consider in trying to follow along. The first is that we have access to newspaper articles, blog posts, pleadings, etc. They do not.

They do not have transcripts of the trial testimony or opening or closing arguments. They do not even have a copy of the Indictment.

They have jury instructions. They have paper copies of the exhibits. They have their handwritten notes of the testimony.

So, where would they begin once they have selected a foreman and decided to start discussions? Byron York says how he would do it.


I have tried to think how I would go through the charges, were I on the jury. Counts 2 and 4 are Russert Counts, while Counts 3 and 5 are Cooper Counts, and Count 1 is the omnibus obstruction of justice count. So it would make sense to consider the counts from 2 to 4 to 3 to 5 to 1.

Here's what makes sense to me -- After a perusal of count 1, they move on to Counts 4 and 5, back to count 1, then on to counts 2 and 3. My reasoning:

After the general instructions (which include the presumption of innocence, reasonable doubt and a memory instruction), the instructions move to the substantive counts against Libby.

The first is on Count 1 of the Indictment, Obstruction of Justice. But, in order to resolve that count, they must first decide whether any of three specific statements (pdf) Libby made to the grand jury in March, 2004 about his conversations with Tim Russert and Matthew Cooper in July, 2003 were falsely made with the intent of deceiving the grand jury.

The obstruction count does not pertain to Libby's allegely false statements to investigators in the fall of 2003. The statements are taken from testimony contained in Counts 4 and 5, the perjury counts.

Admittedly I'm a lawyer and not a juror, but I would think the jury would first decide counts 4 and 5, and then go back to count 1, since in order to decide count 1, the obstruction charge, they first need to resolve whether he testified falsely to the grand jury about Russert and Cooper. After they finished with those, I would think they would move on to Counts 2 and 3, the false statements charges. Taking them in order (count 2 being Russert and Count 3 being Cooper), I would think they would have resolved Russert before Cooper.

If that's the case, then yesterday's question about Count 3 could mean they are at the end of the process, with them having resolved all but Count 3.

If this is right, they should be almost done.

Of course, they also could have just deferred considering Count 1 to first go through 2,3, 4 and 5 in order. In which case, they are probably not near completion.

As Byron says, we really don't have a clue.

As an aside, one of the most fascinating aspects of the trial to me is how they will resolve the memory issue. Here is the memory instruction the jury was to receive from Judge Walton. Keep in mind that he may have changed a few words when he delivered it and the transcript of the reading of the charge, not this document, is the official version.

I still think the jury could come back with a complete acquittal, a conviction on all counts, or anything in between, i.e., guilty on some counts but not others.

Update: Tom Maguire weighs in, as do a few hundred of his commenters.

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    Question on transcripts (none / 0) (#1)
    by sphealey on Wed Feb 28, 2007 at 04:42:34 PM EST
    Question on trial transcripts: why doesn't the jury get copies?  Particularly after a multi-week trial that seems a bit unfair.


    They never do (none / 0) (#6)
    by Jeralyn on Wed Feb 28, 2007 at 06:34:18 PM EST
    They are supposed to remember what was said. This jury got to take notes though.

    They do have transcripts of Libby's grand jury testimony and copies of all paper exhibits. They can ask to have specific portions re-read to them.

    They can also ask to have tapes replayed, although I think if they do, the Court would call them back into the Courtroom to have them played.


    Jury Note (none / 0) (#2)
    by abeincicero on Wed Feb 28, 2007 at 04:49:15 PM EST

    After looking at the note, it appears to me that the  jury was confused if the charge was:

    1. Whether Libby was lying to the FBI when he said he told 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 (ie. there was no such conversation between Libby and Cooper);


    2. Whether Libby was lying to Cooper about the content of what Libby told Cooper.

    I believe the answer is no. 1.  What is your opinion as to what they were confused about?

    I think it's the first (none / 0) (#3)
    by Jeralyn on Wed Feb 28, 2007 at 04:57:50 PM EST
    The Government doesn't believe Libby told Cooper he wasn't sure Wilson's wife worked for the CIA -- they think Libby told Cooper, "yeah, I heard that too" and didn't add "But I don't even know if it's true."

    I think a fairer reading of Cooper's notes indicate Libby's version might be correct on that point.

    The other part is whether he lied to the FBI when he told them that when Cooper brought up Wilson's wife working for the CIA, he had forgotten he had first heard it from Cheney.


    A better answer to your question (none / 0) (#4)
    by Jeralyn on Wed Feb 28, 2007 at 05:01:02 PM EST
    is that the note reflected they were confused about whether they were to determine whether Libby made that statement to Cooper or whether, if they found he did make it, it was true.

    Jeralyn (none / 0) (#5)
    by abeincicero on Wed Feb 28, 2007 at 05:57:31 PM EST
    Thank you

    Memories... (none / 0) (#7)
    by Tom Maguire on Wed Feb 28, 2007 at 08:26:16 PM EST
    Re Transcripts and "They are supposed to remember what was said. - given the importance of memory to this trial, the longer they deliberate the more the jurors will confront the irony of convicting a guy for forgetting things they themselves can't quite remember.

    And I bet that more than once they will find twelve people "remembering" the same testimony thirteen different ways.  That probably helps Libby.

    not all memories are the same (none / 0) (#8)
    by MiddleOfTheRoad on Wed Feb 28, 2007 at 10:25:27 PM EST
    Some things are easy to forget, others are not.  Furthermore Libby is not simply forgetting things, he is also making things up.  And Libby remembers something very clearly (e.g. things that shield Cheney).

    Your guy is guilty, despite your best efforts to create a smokescreen.


    Swopa said (none / 0) (#9)
    by MiddleOfTheRoad on Wed Feb 28, 2007 at 10:33:34 PM EST
    On the issue of memory I'm also reminded of something that Swopa said.

    There's also the curious miracle by which Karl Rove mysteriously forgot to tell FBI investigators and the grand jury about his conversation with Matt Cooper until Cooper himself was forced to testify, while Libby just coincidentally made up a story that he had been the first to tell Cooper where Joe Wilson's wife worked.  Odd that those two lies fit together so well, isn't it?

    Thanks (none / 0) (#10)
    by skdadl on Thu Mar 01, 2007 at 04:44:08 AM EST
    Jeralyn, I'm delurking to thank you (and your regulars) for your wonderfully close reading of this tangled web of words and memories and lies. The drama of the trial is fun, but your commentary really calms the mind -- well, it calms this amateur Canadian sleuthing mind, anyway.

    Much appreciated (none / 0) (#11)
    by Jeralyn on Thu Mar 01, 2007 at 11:01:57 AM EST
    Skadadl, thanks for delurking and telling me. Sometimes it feels like I'm talking to myself here.  It's good to know there are readers like you who read but usually don't comment.