Libby: New Jury Note

Via Marcy at Firedoglake, there's another jury note, Wells looks happy, Fitzgerald does not. They are discussing how to answer and will reconvene at 4:30 ET. I'll stay online to update.

Update: DOJ spokesperson Randall Samborn says "The parties have been asked to meet in Court at 4:05 p.m. today Monday March 5 to review a note with questions that the Court has received from the jury."

So, there's more than one question.


Update: From Marcy's live-blog:

Walton: I don't want to keep thejury waiting until tomorrow. The only other issue. I'll let you all work on that to see if you can come up with something. But I do have an issue as I was trying to come up with some language, and I know that counsel had not requested unanimity instruction regarding this count. I think it may be a problem. I had "and' between the two dates. Govt requested that it be changed to "or". Jury doesn't have to find that he falsely made the statement on both dates. But is there a unanimity issue WRT this count, in light of statements made on two different dates. I don't think the defense suggested he said soemthing different on one day and the other. We've got to know taht the jury is saying he made a false statement on one and the same date that's alleged in the indictment. I don't know if there's a unaninimity issue or not. THe issue can't be waived. We have to know that jury reaching unanimous verdict on one of the two dates or both.

Wells: I'd ask you give us time to reflect on it [really quiet]. We need to discuss among ourselves and with the client. It's just too important.

Walton: there's going to be a claim of plain error if we don't know that there's a false statement made on a particular date.

Update: They are releasing the jury for the day, but arguments on the jury questions will continue.

I'm having a hard time understanding without seeing the actual questions, but from Marcy's description, it sounds like the jury wants to know if it can consider the false statement perjury charge statements in deciding whether Libby lied to the grand jury FBI. Fitz argues yes, and the judge seems to agree, because the Government's theory has been that once Libby lied to the FBI, he was locked into a version of events that he continued when he lied to the grand jury. Wells thinks the false statement was complete in October when he talked to the FBI and it's improper to allow the jury to consider those (perjury)statements deciding whether he lied to the grand jury FBI.

The Government explained its theory here.

There also seems to be an issue as to the statements in Count 5 and the jury needing to know it only must find he lied on one of the the two dates in March and unanimously agree on which date.

Update: This may be backwards. It now appears from Jane at Firedoglake and Matt Appuzo of the AP, both of whom were in court, that at least one of the jury's latest three questions pertain to Count 3, the false statements charge against Libby, as it pertains to Matt Cooper. From Matt:

Jurors asked whether they could use Libby's grand jury testimony, which was played in court, as evidence that Libby lied during an earlier FBI interview. Special Prosecutor Patrick Fitzgerald said the answer should be ``yes,'' but Libby's lawyers say one thing is not evidence of the other.

Walton sent jurors home and said he would answer the questions Tuesday.

I'm curious to see how others report this.

Update: Later AP story is here.

Update: Is the jury almost done? I think so. I speculated here that the order they would consider the counts was: 1-4-5-1-2-3.

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 they are on Count 3, I think 1, 4, 5 and 2 have already been resolved. Since most trial followers believe the Matt Cooper counts were the weakest, this may not bode well for Libby.

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    Per Hamsher at FDL (5.00 / 1) (#3)
    by scribe on Mon Mar 05, 2007 at 04:49:41 PM EST
    It looks interesting, excerpted:
    At one point, I believe Walton said (and others who heard it confirm that this was their impression as well) that the jury has reached a unanimous decision regarding the fact that Libby lied.

    We only got 5 minutes warning about the hearing.  I was standing at the door to the court when the prosecution came barelling down the hall.  I pulled open the door and just stood back.  In retrospect, I think they knew when they got the question that they had him.

    I watched Scooter throughout the proceeding.  No smiles now.  He seems to have moved off into appeal land.

    I hope they got some shut-eye over the weekend (none / 0) (#1)
    by scribe on Mon Mar 05, 2007 at 04:09:31 PM EST
    because none of those lawyers is sleeping tonight.

    And, why do I get the feeling Wells is boxed on this set of questions?  Because it seems he argued they could use the grand jury testimony for any purpose and now it seems the jury is considering that Scooter had a continuing plan and stuck to the same story throughout?

    It's really tough to parse out exactly what the issues are here - this is where the live-blog format kind of breaks down.  We get the drama, but not all the dialogue.

    Once is not enough (none / 0) (#2)
    by aztrias on Mon Mar 05, 2007 at 04:36:38 PM EST
    When I was CS instructor, I was required to test general knowledge for formatting numerical and text output in (FORTRAN and C).  I'd give examples and homework and then put variations of these problems on the quiz and exams.  Occasionally a student would make a consistent mistake with formatting codes on the quiz or exam and petition that only one of the mistakes be graded wrong and they be given a pass () credit) for the others.  

    Why?  The others were consistently wrong so they only amounted to "one" mistake.  I saw it differently, I graded all mistakes bc the point of giving more than one formatting question was to add weight to that knowledge and also test skill (time) that they needed to do the interpretation.

    Maybe Libby is asking for the same pass,  I only lied once and the other lies were made just to be consistent.  

    NOTES (none / 0) (#4)
    by JPL on Mon Mar 05, 2007 at 05:32:27 PM EST
    Jeralyn, Since most of the notes were released the same day, do you find it unusual that these will not be released until tomorrow???

    Yes (none / 0) (#5)
    by Jeralyn on Mon Mar 05, 2007 at 05:38:37 PM EST
    I'm wondering that myself. I'm going to check Pacer periodically through the evening and see if the questions get posted.

    Timing of Publication on PACER (none / 0) (#7)
    by cboldt on Mon Mar 05, 2007 at 05:57:26 PM EST
    The Court has been inconsistent as to timing of publication on PACER.  The Feb 21 note didn't come out until the 22nd, for example, and Walton's March 1 GRANT of extension to Fitzgerald (for classification review) didn't hit PACER until this morning.

    I think the routine is to give the Court and counsel some breathing space and time.  Still, it's pretty cheap to bank the PACER search function once an hour or so.  I do it myself a few times a day, even on weekends.


    Speculation as to which Count is being dissected (none / 0) (#6)
    by cboldt on Mon Mar 05, 2007 at 05:43:11 PM EST
    I'm inclined to think the "date unanimity" issue is with Count 1, not with Count 3.  I base that mostly on reference to the draft jury instructions, where Count 1 is the only one that has a need for a statement to be made on both dates.

    As a secondary rationale, Counts 2 and 3 are difficult for the jury to date-differentiate on, because they don't have transcript testimony to illustrate slight differences between testimony given in October vs. in November.  On the other hand, from the draft instructions ...

    Count one of the indictment charges that on or about March 5 and March 24, 2004 ...

    I can see where that "and" requirement would cause some discussion and confusion, as the jury tries to figure out similarities and differences between March 5 and March 24 testimony, which they have in written form.

    Contrast that with Count 5, which lists 4 individual items, each one with a specific date and specific testimony, and an instruction that says "if you unanimously agree on any one of these, then you must find the defendant guilty."