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Libby Liveblog: Instructions


Here we go folks! We'll spend the first part of the morning doing jury instructions. Things to look for? There has been an active debate since the day Libby was indicted about how to refer to Plame's status and the relationship of her status to this case. Libby has wanted any discussion of classified (much less covert) status to remain unmentioned, since he has received only a CIPA summary of her employment status and has been indicted for lying, not for leaking. Whereas Fitzgerald has argued that her status is an important background piece to the case. Look to see how Walton has decided to split that baby.

One other heated debate relates to the relationship between the obstruction charge and the false statements/perjury charges. Libby's team made a move to yoke them, presumably so that if Libby were found innocent of lying, then he would by necessity be found innocent of obstruction as well.

And finally, there's a question about the scope of the investigation. Libby's team has indicated it may dispute the government's version of the scope of the investigation, particularly as it relates to the Fall 2003 part of the investigation. I suspect they're trying to argue that, at that point, the investigation related solely to the leak to Novak, so any leaks to other journalists would be non-material. Most of Libby's teams argument about this will come later–but watch to see how Walton defines the investigation.

Two housekeeping notes. First, remember this is not an official transcript. Where I use quotation marks, it is my own transcription of a person's statement. Otherwise, it is a rough paraphrase. If you need to quote something officially, wait for the official transcript please!

And finally, I'm going to try to mark the times of my updates. I'll try to update the post no more than every 15 minutes. So you can use this "timestamp" to figure out when to refresh your browser. We'll be slamming the servers pretty hard today, let's not slam them even further by refreshing every 30 seconds, alright? 

Ut oh, we're starting with a sidebar discussion. No idea what that was about, oh damnit! There they go into sidebar again! This is not an auspicious beginning. For those who are just tuning in, when they go into sidebar we get nasty static noise here in the media room. Ah, it's off again.

Walton: One matter still outstanding regarding the instructions. 

Bonamici (from Fitz' team) up to exlpain government position.

They're still arguing over the materiality (see yesterday's discussion) in the false statements/perjury charges. Libby's team wants them to use "allegations," Fitz' team wants to use "possible crimes." I think what Libby's team is trying to do is avoid any sense of crime associated with Plame's identity. Though as Walton points out, we wouldn't be here unless the FBI was investigating "possible crimes." Walton changes it to "possible crimes."

Now we're waiting in silence, full court room, for the jury, which wasn't there for that little crimes/allegations discussion.


Jury is coming into the court room now. The media room is calling off their nicknames, "One must be seated," "Rocky mountain spotted fever." This will be the one time we get to see the jury today.

Walton asked what they got for breakfast. They DID NOT have steak and eggs.

Walton starts with instructions. This is not a substitute for detailed instructions on law for the end of the trial. This is for the benefit of those who have never set for a trial. Will give some indication of what your duty is. And will give some principles of law that will be helpful to you. Walton starts to describe the opening statement. "Keep in mind that the opening statement is not evidence." Defense has a right to make an opening statement, but is not required to do so. The reason for that is that the government has the burden of proof. 

The next part of the trial that you will is called the government case in chief. In all probability the case in chief will be presented in two ways. Witnesses. And exhibits. An exhibit does not become evidence until I say that it is admitted as evidence.  If I do not permit that exhibit to be admitted into evidence, then you cannot consider it as evidence in this case. 

Fitz and Jeffress are looking up at Walton. Wells is looking down at his notes. I can't see Libby on the monitor, so I can't see what he is doing (yesterday he was reading the NYT).  

Walton now explaining that the defense does not have to present evidence. 

Walton uses his hands when he talks.  

Now explains the government gets a second opportunity to present their rebuttal case.

He's basically giving them a road map of the trial.

Now he's explaining the closing arguments.

Once that has been completed, I will give you detailed instructions on law that you will consider.


Walton explains that an indictment is not evidence, that jurors cannot infer guilt from it.

Walton explains that there are 17 judges in this courtroom. He describes his duty as the judge on the law, and implores them to listen to his judgments on the law.

Walton talks about their duty to weigh the evidence in the trial. You should determine the facts without prejudice, fear, or favoritism (I missed one).  

You may not take anything I do as how you think I think you should decide this case, he says. He's telling them to disregard anything he (Walton) says in judging the facts, repeats that it is their sole and exclusive responsibility to judge the facts.

Walton now explaining objections.  "I suspect there will be objections to questions." [really?] Describing what "sustained" objections mean. Talks about their legal obligation to strike a sustained objection from their mind. 

It is vitally important that this case must be decided ONLY based on the evidence that will be presented in the course of this trial. 

Walton again warning them to avoid outside information.

Understand that if the lawyers say something that is different from your recollection of the evidence, you should rely on your memory of the evidence. 

Walton now talking about presumption of innocence. The burden of proof never shifts to the defendant over the course of the trial.

Jeffress politely listening. Fitz looking up from time to time, Wells still reading his notes.

Walton now introducing reasonable doubt. "A doubt for which you have a reason based on the evidence or lack of evidence in the case." If you cannot say you are firmly convinced of the defendant's guilt, you have a reasonable doubt.  But this doubt cannot be based on imagination or speculation. Government not required to prove guilt to a scientific certainty.

No evidence will be presented to you as to Valerie Plame Wilson's status at the CIA or whether that status posed a risk to her or the CIA. That is because her status is totally irrelevant to the offenses the defendant has been charged with in this case. You must therefore not consider that in your deliberations. You may consider what Mr. Libby knew or thought he knew and what his state of mind was when he testified to the FBI. You must understand that this doesn't estbalish anything about her status or damage caused.


Walton now getting into charges. Starts with Russert allegation. Now does Matthew Cooper charge. Refers to Judy Miller on July 12. This is significant–she wasn't named in the indictment, but she is here. Libby's team will likely push back against this.

Count 1 Obstruction of Justice

Corruptly endeavored to impede judicial proceedings by knowingly and deliberately deceiving the GJ information about how he knew or disclosed info to the media.

In order to prove this charge. 

  1. There was a proceeding pending before the grand jury concerning the possible unauthorized disclosure of Plame's ID
  2. That the defendant knew the proceeding was pending
  3. That the defendant misled or deceived the GJ about how he acquired or disclosed to the media Plame's ID
  4. That in misleading, he corruptly endeavored ot mislead the jury. With an evil purpose. (Libby's team hammered this hard–they want to make Fitz prove Libby's a jerk). It is not necessary for the govt to prove that the effort to impede justice was successful.  

Count 2 and 3 False Statements

Knowingly and willfully making false statements regarding a material fact. (Libby's team want to challenge materiality.) To prove this offense:

  1. Defendant knowingly made a false statement to the government of the US, namely the FBI
  2. That is was made in a matter in the jurisdiction of the US
  3. That he acted willfully knowing the statement was false
  4. That the statement was material to the investigation being conducted by the FBI. The alleged false statement need not to have influenced the actions of the FBI or deceived the FBI.

Count 4 and 5 Perjury

Under oath before a grand jury knowingly makes a false material declaration. In order to prove:

  1. Defendant made a statement to the GJ while he was under oath
  2. Statement false in one or more respects
  3. Defendant knew that this statement was false
  4. The false statement was material to the matter that was being investigated by the GJ, repeating materiality definition again: capacity to impair or pervert functioning of grand jury, if it relates to an important fact that hat the ability to influence the decision of the GJ. You may consider the nature of the GJ investigation, including the charges that will be investigated, to determine whether the statement was material.

Will give these instructions in final instructions. Will provide written copies of instructions. Will tape record final instructions and provide a written copy to the jurors.


Walton now telling them what they need to do.

Listen intently.

Has given notepads, I will explain note-taking to you in a bit.

He's telling them to get some sleep. I've had a lot of problems in the past with jurors falling asleep. Unless you can convince me that you have the supernatural ability to sleep and listen at the same time. I don't want to embarrass you but if I see you nodding off, I'm going to call you on it.

You have the ability as one of the judges to take a break when you need to.

Walton–my wife thinks I have the easiest job in the world. But I can appreciate it, it is very tiring. You have a right to take a break. But I'm not a mindreader. If you find yourself getting sleepy, just raise your hand and I'll let you break immediately.

It is crucial that you not have any discussion with anyone about this case. Don't talk among yourselves. If you do that, you'd have a natural tendancy to make decisions about the case.

Tells them that if they inadvertantly come into contact with the media, tell him.

The witnesses who were identified to you, none of them were present when you were asked about them. If when you see them, you recognize them as someone you know, raise your hand and we'll figure out whether your knowledge will impair your ability to judge this case.

I may have to have a discussion with the lawyers. Sometimes the lawyers need to explain why they think the objection is appropriate. If it's a lengthy discussion I'll send you back to the jury room. If it'll be short, they lawyers will approach the bench and I'll turn on the husher. The acoustics of the court room are good, but you're not supposed to hear us. Don't try to eavesdrop on us when we're talking about. You can turn and talk to your neighbor, but tune us out.

Walton now explaining that he'll let jurors take notes. Thought it was weird that judges were allowed to take notes, but not jurors.

Don't take verbatim notes. [Let the liveblogger do that, of course!!] 

No one will read your notepads. You'll tear out the pages on which you took notes, they will be immediately destroyed. Don't be constrained by being worried about who will see your notes. 

Will allow jurors ask questions. It only makes good sense to permit you to ask that question. However, I cannot let you to ask questions like the lawyers do, orally.


Walton talking about alternates. No one will know who the alternates are but me and the lawyers (media room says, "and us, and anyone reading our stories.") We will need the services of alternates.

Going over the schedule.

Woohoo!! 10 minute break. We'll go into opening statements right after this, in a new thread.

One more point–Walton gave no instruction on memory defense. 


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