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Late today, the jury submitted two questions to Judge Walton that off the best opportunity to read some tea leaves about what they're thinking. Here's my read on those tea leaves.

Question One: Matt Cooper
The first question is:

As count I 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.

This question pertains to the following instruction of the obstruction charge:

That Mr. Libby advised Matthew Cooper of Time magazine on or about July 12, 2003, that he had heard that other reporters were saying that Mr. Wilson's wife worked for the CIA, and further advised him that Mr. Libby did not know whether this assertion was true.

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.

I've long said Libby would get off on both Cooper charges. This question suggests to me he may get off on only one of them, the false statement charge.

Question Two: Reasonable Doubt
The text of the second question reads:

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.

Now, I cede to the wisdom of the lawyers on this question. Christy says:

You almost always get to a point where the jury has a question about reasonable doubt.  This is because most jurors get to a point in their deliberations where their mind goes "holy crap!  I may be putting another human being in jail.  What if I'm wrong to do so?

That is, to some degree this is perfectly natural. The jurors are going to get to a point where they need to clarify whether their lingering doubts. But on those terms, look at the statement--they want to know if the mere human possibility that someone did not recall an event constitutes reasonable doubt. Wow. If they're already to that point, I'd say Fitz is in good shape. Because if they've gotten to the point where a holdout is talking about mere possibility, rather than the possibility that Cooper writes "n's" instead lf "r's," then they have 1) already decided that some of the witnesses against Libby are credible and that his story is false and 2) already dismissed a good deal of the sand Jeffress threw in the jury's eyes.

But then look closer, as Jeralyn does:

Of course, this is reading tea leaves, but it sounds to me like one person (at least one, but in the minority) is taking the position that there is reasonable doubt because Fitz didn't prove that it was impossible for Libby not to have remembered an event.


As to what the event is, I suppose it could be a conversation or a meeting. But I doubt they would have called it "an event" if they were talking about a particular statement within a conversation.

Jeralyn raises the point that the jurors are asking about an event, not a statement per se. So it seems that, for at least some of the charges, the jury has picked an event that they find completely invalidates Libby's story, not any one statement that a journalist made. Like Jeralyn, I'm guessing that it's an entire meeting. She raises two possibilities--they're thinking of the event when Cheney told Libby of Plame's identity, or of the June 23 meeting (though note, Jeralyn is mistaken in saying that the June 23 meeting was ever part of the obstruction charge--only the July 12 meeting was, though as she notes, all conversations are fair game for consideration of the obstruction charge).

I'd raise three more possibilities. First, there's the July 7 Ari conversation. There's the July 8 Judy Judy Judy meeting. Fitzgerald made a compelling case that Libby treated this--a two hour meeting in the middle of a busy week--as a very important event. And finally, there's the July 8 Addington conversation, at which Libby's own notes reveal he remembered Wilson had a wife. If the jury believes any one of these three events happened as the non-Libby witness described, then Libby would have to forget the entire event to be able to make the argument that he was "learning it again as if it were new."

In any case, if you take Christy's and Jeralyn's comments together, they suggest that this is a very mild question about reasonable doubt indeed. The standard the doubters seem to be using already seem to dismiss Team Libby's best efforts to instill doubt. All the jurors seem to be considering is a very weak memory defense. And they're dealing with something very concrete--an event, rather than a discrete statement that Cooper, for example, made at the end of a conversation.

It's really all tea-reading at this point. But the tea leaves in my tea-cup look pretty good.

Originally posted to emptywheel on Fri Mar 02, 2007 at 02:39 PM PST.

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