The Libby Trial: What’s With the Jury?
The neverending deliberations in the CIA-leak case.
By Byron York
Today is the ninth day of deliberations in the perjury and obstruction of justice trial of Lewis Libby. Jurors have been asked to decide Libby’s guilt or innocence on five counts, two of perjury, two of making false statements, and one of obstruction, all rooted in one question: Did Libby lie when he told authorities about his knowledge of Valerie Plame Wilson? While that might sound imposing, the job is not quite as big as it sounds. Some of the five counts overlap; for example, Counts 3 and 5 are both based on Libby’s testimony about a single sentence in a single conversation with Time magazine’s Matthew Cooper. Counts 2 and 4 are based on Libby’s testimony about a single conversation with NBC’s Tim Russert. Count 1 essentially combines the other charges into one all-encompassing obstruction of justice charge.
Other juries have settled far more complex cases in less time. But the Libby jury has given no sign that it is near the end of its work. Why?
A look at the notes the jury has sent to the judge, plus clues raised by the length (so far) of deliberations, suggest that the panel is becoming increasingly unhappy — not with each other, and not with the defense or prosecution, but with the judge’s instructions that are supposed to guide their deliberations. In addition, it appears that some jurors might have gotten so deeply entangled in the minutiae of the case — joining the ranks of what bloggers call Plameologists — that they have lost sight of the question before them.
WHAT’D HE SAY?
The first real indication of dissatisfaction came last Wednesday, when jurors sent a note indicating they were confused by the judge’s instructions on Count 3, the count that alleges Libby lied to FBI agents about his conversation with Matthew Cooper. This is what the note said:
Page 74 of the jury instructions, “Count 3 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 if this was true.” (i.e., is the charge that the statement was made or about the content of the statement itself)
The jury’s note itself was not entirely clear, but it appears the jurors were confused over whether Libby is charged with lying to Cooper, which of course he is not, or with lying to the FBI. Later, the jury sent a note saying that it had answered its own question, although we don’t know what the answer was.
Whatever the case, the jury’s job is made more difficult by the nature of the false statement charges against Libby. In Counts 2 and 3, Libby is accused of lying to FBI agents working for prosecutor Patrick Fitzgerald. During the interviews in which Libby is alleged to have lied, the agents followed standard practice and did not record the conversation. Instead, one of them took notes and later wrote up a report on the interview, known as an FBI 302. Unlike Counts 4 and 5, which are based on transcripts of Libby’s recorded grand jury testimony, there are no quotes from Libby in Counts 2 and 3, and the jury has to rely on the judge’s characterization of Libby’s allegedly false statements. In the absence of quotations, jurors might also be concerned about the general reliability of the FBI’s version of Libby’s statements; testimony at the trial from FBI agent Deborah Bond did not bolster confidence in the accuracy of the 302 reports in this case. As far as Counts 2 and 3 are concerned, the jury might be wondering on what grounds it is being asked to judge Libby.
On Friday, the jury sent another question, again based on the issue of specificity concerning statements Libby made about his conversation with Cooper. The jury asked, “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…” In his instructions on that portion of Count 1 — the count alleging that Libby obstructed justice — the judge characterized, rather than quoted, what Libby said about his talk with Cooper, writing 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.”
For the second time, the jury seemed frustrated with the judge’s synopsis of Libby’s allegedly false statements and wanted to find a firmer footing in Libby’s exact words. And for the second time, the frustration involved the charges involving Cooper, generally conceded to be the weakest in the case.
DOUBT? WHAT IS DOUBT?
The other issue exposed in the jury’s notes is the question of reasonable doubt. In addition to its note about Count 1 on Friday, the jury asked:
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 reasonable doubt.
The note seems to indicate that the jury is not entirely comfortable with the definition of reasonable doubt that the judge gave them in his instructions. In those instructions, the judge followed the standards normally used in such cases, telling the jurors:
The government has the burden of proving the defendant guilty beyond a reasonable doubt….Reasonable doubt, as the name implies, is a doubt based on reason — a doubt for which you have a reason based upon the evidence or lack of evidence in the case. If, after careful, honest, and impartial consideration of all the evidence, you cannot say that you are firmly convinced of the defendant’s guilt, then you have a reasonable doubt.
Reasonable doubt is the kind of doubt that would cause a reasonable person, after careful and thoughtful reflection, to hesitate to act in the graver or more important matters in life. However, it is not an imaginary doubt, nor a doubt based on speculation or guesswork; it is a doubt based on reason. The government is not required to prove guilt beyond all doubt, or to a mathematical or scientific certainty. Its burden is to prove guilt beyond a reasonable doubt.
“It’s really a very commonsense concept,” says NRO’s Andy McCarthy, a former federal prosecutor who served with Patrick Fitzgerald in New York. “If you’re down to parsing it, it’s almost like you’re dealing with a jury that is asking why is the sky blue.”
McCarthy suggests that the jury’s questions might not represent the concerns of the entire panel but rather the worries of a few members. “A lot of times when you get notes,” he says, “you think the notes are an indication of where the jury is, and in fact they are an indication of where one or two jurors are.”
The fact that at least one or two jurors want more clarity on the issue of reasonable doubt might mean that they might have a fundamental difficulty with reaching a verdict — any verdict. “That would suggest that whoever is interested in that is not being led astray by some strange element of federal law, is not being led astray by the nullification defense, but has gotten themselves hung up in the epistemological aspect of not only trials, but of life,” McCarthy says. “How do I know what I know? When you have people who are hung up on that, when they start to break down things that are commonsense elemental things, that is a very bad sign in terms of getting the case resolved.”
If that is true, then the jury’s difficulties might bode well for Libby, pointing at least toward a hung jury and a mistrial. But it might also be true that the jury, or even a single member of the jury, is having trouble just with the part of the case that relates to Matthew Cooper, and that the panel has reached agreement on the parts that have to do with Tim Russert. Whatever the case, deliberations go on, and it’s impossible for those of us on the outside to say precisely why.
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