Libby Juror Note, Part 2: Late Night Tea Leaves

I'm still considering the jury note today on reasonable doubt. (You can view it here.)

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.

Where would a juror get the idea that the Government had to produce evidence that it was not humanly possible for Libby to have forgotten about an event?

One place is from this section of Ted Wells' closing argument. (From the transcript -- no link, sorry, but it is official.)

Now, I tried to display -- let's go to the next slide -- graphically just how you ought to think about it.

If you think the witnesses that testified in June or July on your left and Mr. Libby on your right, again, the question is not what Scooter Libby remembered in real time back in June or July. The question is what did Mr. Libby remember three months later.

Those witnesses, again, all they can do is say this is our recollection in June or July. They don't help you in answering the question, what did Mr. Libby remember in October. Did he have a good faith misrecollection? Or did he lie? They got to give you powerful evidence of lying. And none of those witnesses help you on that question.

Next slide. In essence, from a graphic point of view, there is just this huge evidentiary gap. They've got witnesses in real time in June and July but no witnesses concerning his state of mind in October. Again, no witnesses come into the courtroom and say that in October he lied.

Again, there is no smoking gun document. There is no expert testimony that he could not have forgotten.

I mean, nobody took the stand and said, based on an empirical evidence, there is some study that says it's impossible for him to have forgotten in October what he was told in July. The record is barren on that point. There is no type of physiological evidence or scientific evidence. It's just barren. (my emphasis)

Libby could have made an innocent mistake in October. And Libby, under the rules of this justice system, he doesn't have to prove that he made an innocent mistake.

They've got to prove that he was engaged in intentional lying. And they haven't given you any evidence; they haven't given you anything. They're just asking you to speculate.

Nobody can say with any degree of certainty that he just didn't have one of those moments that we all have in life where he thought something happened one way and it happened another. They have given you no evidence.

Of course, Wells' closing argument is not evidence and the jury doesn't have the transcript. Maybe a juror took notes during it. Or, maybe a juror, contrary to Libby, has a particularly good memory. Or, maybe it just really hit home with one (or more) of them.
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    that's where the judge will set them straight (none / 0) (#1)
    by scribe on Fri Mar 02, 2007 at 10:09:51 PM EST
    to remind them that "lawyers' arguments are not evidence", inter alia.

    It's late.  Maher's on.

    Excuse the pun but... (none / 0) (#2)
    by demohypocrates on Fri Mar 02, 2007 at 11:22:39 PM EST
    when will this Blog's author realize this entire case is without any 'Merritt'.

    i noticed they asked for a dictionary (none / 0) (#3)
    by cpinva on Sat Mar 03, 2007 at 02:12:41 AM EST
    perhaps some of them needed to look up the definition of "reasonable", as opposed to absolute.

    when will this Blog's author realize this entire case is without any 'Merritt'.

    when you get better puns! :)

    Agreed :) (none / 0) (#8)
    by demohypocrates on Sat Mar 03, 2007 at 09:51:14 AM EST

    they better not "look it up" (none / 0) (#4)
    by Deconstructionist on Sat Mar 03, 2007 at 06:29:56 AM EST
     Jurors are not permitted to do their own investigations or research, They are bound to consider the evidence and apply the the instructions to theirinterpretation of that evidence.

       The question is what should the judge do. As a defense attorney, I'd argue the judge should do no more than inform the jury that they must go by the instructions it has been provided and no further clarification or elaboration is permitted.I might no argue too strenuously against that were I the prosecutor because of the possibility of injecting reversible error.

    requests for help (none / 0) (#5)
    by orionATL on Sat Mar 03, 2007 at 08:47:29 AM EST
    i interpret the notes as the likely product of a jury chairperson,  or a dominant group within the jury, trying to deal with the doubts of one or more jurors about finding libby guilty on one or more of the counts.

    if "everybody else" sees the light but "sam" keeps saying there is doubt in his mind, then "everybody else" might want some advice from an influential lperson to resolve "sam's" doubt.

    whether they will get it or not is the question. judge walton seems to me like an extremely conscientious, very experienced,  and very careful jurist.

    There can be no question (none / 0) (#6)
    by Deconstructionist on Sat Mar 03, 2007 at 08:51:50 AM EST
     that additional guidance is desired (and I tend to agree with your, and the consensus, view as to why the guidance is sought.

      I'm just saying that I think the defense will strenuously oppose having the judge give such guidance and also that I thinnk that giving such  guidance as the jury probably really wants could very well be reversible error.


    reversible error (none / 0) (#9)
    by Screwloose on Sat Mar 03, 2007 at 12:23:45 PM EST
    Shame on the AUSA/judge for not giving the jury memory expert testimony/jury instructions!

    "Common knowledge" just means the prosecution couldn't find an expert to contradict the memory expert/JI, and the prosecution team, distrusting the AUSA's CX abilities and/or the jury's abilities to find facts from the evidence and follow the law, prevent the accused from presenting the defense as best as he is able, in contravention of the Sixth Amendment.

    Too bad for Libby Clark v. AZ says the prosecution team of AUSA/judge chooses which side can call experts, and which side can't, in the good old USA. Shame on SCOTUS, too!


    Can Wells make it stick? (none / 0) (#7)
    by wethepeople on Sat Mar 03, 2007 at 09:11:23 AM EST
    No expert here but have tried to follow trial via here and at FDL. It seems to me that this idea that the prosecution did not offer any expert testimony as to Libby's misrecollection is another of the many Hail Marys that Well's threw at the jury to see if something would stick, which is basically all they had to go against the prosecution's parade of witnesses.

    To that point, tapes of Libby's FBI interview and GJ testimony were offered as evidence by the prosecution and played in court. Wouldn't the prosecution be expecting that the jury simply make a judgement as to whether Libby was "having a good faith misrecollection," or was , in fact, "kicking sand in the umpire's eyes," ie., lying, from that evidence?

    Of course, then again, maybe Well's waterworks at the end of his final desperation, er, argument worked on somebody.

    Improbable Lie (none / 0) (#10)
    by MikeS on Sat Mar 03, 2007 at 12:50:27 PM EST
    Libby is accused of telling an unconvincing,improbable lie. He has to know that the lie is hard to believe. He had many months to think about it. He had to know that such an improbable story would call investigators attention to him.

    I mean if you planned to use poor memory as a defense wouldn't you soften it a little? What if Libby had said he didn't have clear memories of those events, but that he recalled having a general feeling that the information came from reporters. "Therefor I must have forgotten that the VP had told me."

    Definition of Reasonable Doubt (none / 0) (#11)
    by Peter G on Sat Mar 03, 2007 at 02:25:56 PM EST
    Some circuits (the federal court regions in which different precedent may govern, unless resolved by the Supreme Court) allow the jury to receive a detailed explanation, if not a definition, of "reasonable doubt," along with illustrative examples.  Some circuits absolutely forbid the judge to give a definition or explanation.  Some even restrict lawyers in giving such explanations in closing argument.  Anyone know what the governing case law says in the D.C. Circuit?  Because if it's standard, the explanation will say that a reasonable doubt is not "a mere possible doubt; the government does not have it prove its case beyond any possible doubt but only beyond a reasonable doubt."  On the other hand, a reasonable doubt can arise not only from the evidence but also from a lack of evidence.  And no one can question a jury's (unanimous) decision that they feel a reasonable doubt remains in the case, which requires an acquittal.

    Walton's new Memorandum (none / 0) (#12)
    by desertwind on Sat Mar 03, 2007 at 03:51:17 PM EST

    Do you have any thoughts on the 48-page Memorandum Judge Walton filed on Friday?

    I'm sorry, but I can't remember where I found link to the PDF.

    He was just (none / 0) (#14)
    by Jeralyn on Sat Mar 03, 2007 at 06:02:45 PM EST
    clarifying his earlier oral rulings on why he didn't allow them to call Andrea Mitchell (the judge offered to let them call her at a hearing outside the presence of the jury but they declined) -- on why he ruled the way he did on Libby's state of mind defense and in keeping out the stipulated Admission of Facts related to a cipa agreement entered at a time when they all believed Libby would testify) and in keeping out the Tim Russert impeachment tapes (it would have been too out of context to call him back just for that) and on some related issues.

    He was simply creating a written record in case there was an appeal.  Marcy (Empty Wheel) mentioned it was his law clerk's last day on the job, so perhaps he wanted to get it done before she/he left.


    Walton's Memo (none / 0) (#13)
    by Bill Rudman on Sat Mar 03, 2007 at 04:45:37 PM EST
    Walton's memo can be found at a link at the bottom of Rawstory's article on the memo.