Libby Trial Jury Selection: Day One Recap of Libby’s Dilemma
"I am completely without objectivity. There is nothing you can say that would make me feel positively about President Bush."*
Thus spake the eighth of nine prospective jurors reviewed by Judge Reggie Walton, Prosecutor Patrick Fitzgerald and defense attorneys Ted Wells and William Jeffress today. She had indicated on her juror form she had some strong opinions about the Bush administration, and, queried in her turn by Judge Walton, she cast her eye over all assembled in the courtroom and declared herself.
"So, you are saying you do not believe you could render a fair and impartial verdict in this case, based on the evidence and according to my instructions to the jury prior to deliberations?," Judge Walton followed.
"That's right," she responded, whereupon she was immediately excused from jury duty.
The juror who preceded her took a bit longer, with much questioning and circling around questioning by Mr. Wells, before confessing that, though he would like to think otherwise, it is likely the case that his opinion of Vice President Cheney's credibility is so low that, were sworn testimony offered by Cheney to be contradicted by another witness, the prospective juror would be hard pressed not the feel predisposed to find the vice president unbelievable. This juror, of the nine reviewed today, actually knew the most about the backstory of the case, even to the point of naming Richard Armitage as the first to leak Valerie Plame's identity as a CIA agent.
To assess the tenor of the news coverage this juror had previously read, Ted Wells asked this juror if he reads blogs. "Yes," he replied. "Which ones?" asked Wells. "Andrew Sullivan. Time. Wonkette. Powerline, occasionally, and the Huffington Post, occasionally (hello to you, dude!). . . Some of them are pretty good. I stay away from the crazies.” The media room erupted in laughter, as I took a seated bow.
He was excused from the jury for his admission that he could not assure the court his assessment of the vice president would not color his thinking about testimony and evidence.
Therein lies the challenge for Team Libby: of the nine jurors reviewed in depth today, three were excused. Two I've described to you, and one was excused due to the demands on her time of her work commitments as a free lance contractor paying the rent month to month. What's telling is this: no jurors were excused for cause based on any predispositions that might prejudice them against the prosecution. Just the defense.
Libby has a war problem, and though this case is narrowly about felony charges of obstruction of justice and perjury, wherein the case for war in Iraq provides only the setting, the unavoidable drama and context of this case is the case made for war in Iraq and the credibility of this administration, and in particular, the Office of the Vice President.
The national polls are what they are. The president is wildly unpopular and growing more so with his every subsequent utterance; Dick Cheney is even less popular than President Bush. The public overwhelmingly is rejecting the administration's policies and reluctantly coming to the conclusion that, at best, the administration innocently provided bad information to the country, but is intransigent in the face of developing reality. And through all this, to attempt to get a fair trial, Team Libby must scratch to find jurors without strong opinions or preconceptions on these matters, in Washington, DC, of all places (more than one potential juror, when asked if they had heard or read of any controversy alleging the administration had provided the country with bad information in making its case for war, replied, "In this town? Are you kidding?").
The Libby team's jury selection strategy seems rather clear: if they can find at least one, and preferably two, people who are among that 12% of the population in support of the administration's "surge" strategy to escalate the war in the Middle East, that would be golden. Two such people, or at least one, could possibly hold out against what otherwise might be a consensus to convict, possibly even nullifying the jury, if it came to that. Generally, the demographics that hurt the administration hurt the defense team: women (especially single women), minorities, working people or union members, liberal professionals, etc. The problem for team Libby is, their best jurors live in Salt Lake City, not Washington, DC.
Patrick Fitzgerald has a reputation for not making a big fuss over jurors during jury selection, and he lived up (down?) to that reputation today. He is mostly content to take people at their word if they say they believe they can render a fair and impartial judgment based on the evidence and according to the Judge's instructions. He seems most likely to verify that those with previous experience or exposure to the criminal justice system (as victims of crime, or who have family members of those who are policeman, etc.) believe they possess no strong biases or opinions based on those connections or experiences that might render them unable to deliberate in good faith. He can also be slyly charming. As one woman mentioned she has three children, Fitzgerald responded, "I take it these are young children?" Instantly, and with a southern twang, the woman countered, "Oh, aren't you sweet!"
The Libby team is far more intent and active in its questioning of potential jurors. Beyond probing about any preconceptions potential jurors might possess related to the administration or the vice president, Wells and Jeffress seem regularly to ask about people's opinions of Tim Russert. Clearly, they seem worried about anyone who might be predisposed to think so highly of Russert that, when the time comes for his testimony to contradict Libby's statements, prospective jurors may reflexively side with Russert.
Team Libby furthermore seems very concerned about the news accounts people have read, as is understandable, given the profile of this case. What's more, Libby's lawyers regularly ask pro forma questions about the possibility of forgetting things, and about the possibility that different accounts of past events could be due to bad recollections held in good faith. Their questions are so mundane, however, it seems to me as if they are just using the questions to presell their case, a foretaste of the closing defense argument.
In the end, there will be a jury empaneled, and though the pace of juror review slogged along slowly today, the people at the courthouse seem to think we'll be done by Thursday. If today is any indication, the best Team Libby can hope for would be jurors who can give them a fair shake, enough of whom may have enough trust and faith in the president and the vice president to trust that their ex-employee, Irving "Scooter" Libby, is telling the truth. Today's jurors don't seem to show signs of being among those true believers in the administration's aggressive war policies, but then again, you never know with a jury, and people can and do surprise you.
* Quotations offered in this column are based on this reporter's notes, and largely paraphrased. They should not be considered to be an official transcript of events.