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Libby Liveblog: Jury Instructions 2


The schedule for the afternoon appears to be this: Start by resolving the jury intstructions. Then get into the peremptories.

We're starting … Walton asks if anyone has any comment about proposed instructions.

Debra Bonamici (Fitz' team) has one comment about the perjury and false statement instruction in the definition of "material"–she proposes changing the term "misrepresentation" in a passage that reads misrepresentation is material if it has a natural tendancy"–they propose to keep it "false statement," not "misrepresentation" in all incidences. 

She also explains that the government has a strong objection on instruction on classified information, but since it will only be pertinent to if [IF?!?!?!?!] defendant decides to testify, so the government will respond to it later.

Libby's team needs some time to read the instructions, so Walton is going to go take a break. We're watching Libby's team crowd around their table reading Walton's proposed instruction. Wells is still bent over the instructions. I can't really see what Fitzgerald is doing.

Okay, we're back.

Walton explains that Wells has had a request that jurors be warned not to have contact with anyone in the hallway. But Walton says it won't be a problem.  He says jurors will be "partially sequestered." Jurors will be picked up in the morning from an offsite location, brought into a room, catered breakfast and lunch, at the end of the day they'll be taken to the same undisclosed location so they can go home.

Wells: raises an issue on the Valerie Plame Wilson status: changes "and whether disclosure" to and "whether or not disclosure."  

Wells: On obstruction of justice count. He says Defense and Prosecution are arguing about whether a statement should be conjunctive ("and") or disjunctive ("or"). [I kind of want to start singing Schoolhouse Rock, "Conjunction junction, what's your function??"] 

Wells just said Grossman will be first witness. Hmm, don't know if that was a hypothetical or not. 

What Wells is trying to do is make sure the obstruction charge cannot include whether Libby told the truth about whether he learned of Plame from the 8 government officials. He would like the obstruction charge to be determine just on the question of whether Libby learned of Plame from Russert or not. Basically, he's trying to force the government to prove the Russert alleged lying charges in order to count as an obstruction charge. Or at the least, Wells is trying to avoid any Grossman-related false statement charge.

[I think Wells is making a bogus charge here–the indictment, IMO, makes it clear that there are two aspects to the alleged lies relating to Russert, both whether Libby learned of Plame from Russert, and whether he lied about how he learned of Plame.] 

But for the moment Wells is willing to put this off somewhat.

Walton says it'll end up being resolved by the time we get to the instructions. Walton is saying, don't do too much on the details regarding other witnesses. They seem to have reached agreement on "or" for the moment, so a teeny win for Bonamici.

Fitz has a question–what are the logistics for how we're going to exercise the strikes.

They'll get a sheet of paper so the lawyers don't have to announce in front of the jurors. Government goes first, with one strike, than the defense has two strikes, in rounds. (Government has 6 total strikes of jurors plus two of alternates; Libby has 10 strikes of jurors plus two of alternates). There will be 16 in the box, the jurors who are designated as alternates will be in alternates seats.

Fitz: "I hate to be a geek about it." Numbers 33 to 36 could never end up in the juror box, which means 33 to 36 could only be alternates. 

Someone was a math major at Amherst, and I think it's Mr. Geek.

Wells is pointing at Fitz, saying, I agree. Wells grabs the mike from Fitz. Now all three are switching the mike, shurgging, trying to figure out what happens wiht the last 4 who made it in the potential jury pool. Fitz is gesticulating with his hands. Fitz also has a habit of putting his chin in his hand. 

Jeffress says they're now all totally confused.

24c(4) each side is entitled to the number of additional preemptory challenges. The big issue is that the two per side challenge for prospective challenges MUST be from jurors who are designated to be in a alternate pool. 

Walton is disagreeing with Jeffress, Wells, and Fitzgerald.

What BOTH teams are trying to do is understand who the potential alternates are, so they can calculate whom they should use their strikes on, knowing who else might be left in the panel.  So they want to know, of all the 36 juror, who might be alternates, so they know who the potential alternates are and can strike accordingly.

Wells sent Jeffress to sit down, and is now explaining what he understood, based on their experience and what they thought he was doing. Wells is saying that their questioning at the end was influenced by what he was doing. He's saying that they assumed that the potential jurors 29-36 would be only considered ALTERNATES. So they didn't question as closely for the most recent potential jurors. (Wells suggests they would have asked further questions of the more recent people if he had known how Walton would do this.) No wonder voir dire went so quickly this morning.

Walton is saying that was not his intention and that he's never done that.  "I've never seen it done that way."

Jeffress, now that I understand, those four (the last four), in that case, you're fully in compliance with the rule. Jeffress and Wells need to go back and re-strategize their approach. So we're going to take some time and figure out who will be in the potential jury pool. (Cue the Jeopardy music!)

Everyone breaking until 3:30, so the Defense team can strategize strikes again. 

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Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.