Libby Trial: Who’s Your Daddy?
Ted Wells, Patrick Fitzgerald and Reggie Walton
(Quick Note: Catch Firedoglake's Jane Hamsher and Marcy Wheeler, author of "Anatomy of Deceit," streaming on Cynthia Black's radio show here as they discuss the Libby trial. This runs today at 2:00 PM EST/11:00 AM PST.)
The day began like any Washington, DC commuter's day: on the Metro. Then I got to the courthouse, and suddenly, it was no longer an ordinary day.
I watched opening statements from a seat between my incredible co-blogger Christy Hardin Smith and the vivacious (who knew?) Nina Totenberg of NPR. Her eyes always dance happily, even in repose. I lent her a pen; we whispered furtive courtroom quips. I was charmed.
Marcy Wheeler, the eponymous emptywheel who has been liveblogging the trial for the last week, is amazing. She types so fast! If you want to get up to speed on this case, you really need to buy her book. The day of opening statements, Christy and I were in the courtroom while Marcy, er, womaned the keyboard from the media room.
A trial is a complex thing. There's all the evidence, rules of evidence, legal stuff and rules for jury deliberations, but anyone who has interviewed jurors after a trial (and I have) knows that it's often the unpredictable elements, the very human elements, jurors hang on to and remember. As I watched opening statements this week from inside the courtroom, as preoccupied as I was with taking notes of the competing arguments, I was also most attentive to the ebb and flow of human energy, the little looks and asides, the personalities and the dynamics of people and perceptions, as best I could read them, drawing on my experience and my doctorate in psych. I want to share a little of what it was like to be in the courtroom, through my perceptions of how the players came across.
Here's the thing: in my view, the three dominant personalities in the room – Pat Fitzgerald, Reggie Walton and Ted Wells – are all engaged in a complex game of "who's your daddy?," both among themselves and, perhaps most especially, for the jury and the media. Think of it as an alpha male American Idol for the jury and the public, where the ultimate prize is the jurors' trust and confidence, with public perception a very close second.
Walton's courtroom personality is actually pretty likable. He's very thoughtful when he speaks to jurors, and he talks to them, not at them. His style is very empowering of a jury, allowing them to do some things not all judges do. He gives them paper and pens, so they can take notes. He describes their role to them as "judges" of fact. He tells the sixteen jurors and alternates that there are seventeen judges in the room: himself, as the judge of the law and the process, and the jurors themselves. That's some nice framing. He lets them know that if they need a break, they should just signal, and he'll stop the proceedings. Each member of the jury has access to an emergency brake.
When Walton speaks, he speaks in what comes across generally as a down to earth style. He doesn't shout or preen, and he even shows flashes of humor. It's his court room, to be sure, but he does not seem to try to flaunt or prove it to anybody. True, he can drag on a bit with some of his favorite stories, like the one about the importance of serving on a jury, illustrated by his experiences in Russia when he did some work abroad to help people understand what a functioning judicial system is all about. But for all that, he's not a windbag. Walton seems okay, though I have no idea how he is in terms of fairness in the law. From what I can tell, he seems to be playing it pretty straight.
Walton's had to deal with a fair amount of legal jockeying between Fitzgerald and Wells. For example, on day one of the trial, Wells made a bit of a flourish during his opening statement to suggest, rather indirectly, that a requirement that he read certain descriptions of classified information to the jury verbatim represented a kind of government conspiracy to place limits on the defense's ability to tell its full side of the story.
This implication was not so much in the text of what Wells said (he's too smart for that), but in the rather dramatic way he said and repeated it. Fitzgerald objected after the break, outside of the presence of the jury, and Walton tended to agree with the prosecution. He required Wells to make a clarifying statement in front of the jury, and then added his own fairly mild statement to the effect that the defense has been fully enabled to present its case through rulings of evidence made by the court.
Fitz didn't think Walton's statement went far enough, since he wanted to convey that the prosecution also has limits on what it could bring out related to classified evidence. Walton wasn't buying that argument completely though, since, technically, the prosecution stems from the executive branch of government, which could, if it chose to do so, declassify information at will. Through all of this, Walton seemed to listen genuinely to both sides, made his decision, and said with some humility (as he now has done more than once), "Look, if I'm wrong, I'll be reversed, if it comes to that, but this is my decision."
The feeling is this is very much Reggie Walton's courtroom, but he does not seem to feel the need to push his personality as some kind of dominating presence. Still, I found it a little unnerving when the glare of the lights off his glasses made it impossible for me to tell if he was watching me as I surreptitiously scarfed some M&M's from my jacket pocket after lunch. I got a little paranoid there for a minute.
Wells is a bit of a wild card, and laid down his marker with an aggressive opening statement. Before he began, he was pacing off to the side of the courtroom, almost in the corner, gathering his focus. Then, once he began, he shot out of the box, loudly, passionately, even angrily introducing himself as the "voice of Scooter Libby," whom he declared to be completely innocent.
Hmm. . .
Okay, here's my thing with Wells. Were I the accused in any trial, I would want my attorney to make an aggressive case on my behalf. My natural sympathies tend to align with the defense, civil liberties and civil rights liberal that I am. But Wells is coming across to me as a wee bit reckless, and his theatrics, when he employs them, just a tad contrived. My gut sense is this is the generally shared view in the courtroom: from what I can suss out of some jurors' body language, they have their doubts as well.
I struggle to question and check myself: do I harbor this impression because I expect and believe that Libby is guilty, and not merely of the current charges at the bar? It's possible, but I don't think so. I've seen plenty of presentations, professional speakers (in fact, I am one), and stage productions, so I'm coming at this more purely from a stage/courtroom/audience dynamics perspective. Take what follows for whatever it may be worth.
I frequent the Shakespeare Theater here in DC, whose productions are typically top notch. I know persuasive, compelling acting from technically good but somehow slightly off key performances. I have found myself both convinced and unconvinced by performances, and authentic live acting sears itself upon your consciousness: it doesn't look like acting. What can I say? Wells didn't do that for me, though with his dramatic flourishes and flashes of fury against supposed government abuses, he surely was trying, not so much to persuade me, but to persuade the jury and the press corps as a whole.
Wells is a risk taker, though maybe he's that way because the facts so far in this case are so bad for him. He seems to be laying the groundwork for at least three potentially exculpatory narratives, not all of which are simultaneously logically consistent. No doubt he's hoping the jury won't notice: he seems to want to create as much confusion as possible through high volume irrelevancies and a surfeit of confusing detail.
In the end, his opening statement was most notable not only for its volume, but because it was just so. . . damn. . . long. Fitz took an hour; in contrast, Wells took two hours and twenty minutes, right through the afternoon, after lunch. You could feel the energy ebbing in the room, and see the posture of several jurors incrementally sag, so much so that Wells apologetically implored the jurors to "stay with" him.
When Wells speaks, he clearly seems to want to use his body, his presence and his voice to control the room. Maybe it's because I do public presentations and have studied all the little tricks for gathering the attention of an audience to you, but Wells is doing lots of them, and I'm sure it's not an accident. Of all the three wannabe "daddies" in the room, Wells is the one most obviously campaigning for the job. Again, I suppose he has to do this, both because trials in our system tend to favor the prosecution and because the facts in this case may really suck for Libby.
Wells has an uphill battle to fight and he's working hard, but is he winning the trust of the jury? His is also a defense strategy tailored to apply pressure for a pardon, in which effort perception management in the media is of primary importance. Can he convince, not only the jurors, but members of the press that Scooter Libby, of all people, is a powerless pawn and victim?
I don't think he's off to a great start. One more senior African American woman on the jury was giving him a serious look of. . . how shall I describe it?. . . "I know you crazy!" incredulity for the first ten or fifteen minutes of his opening statement. Wells sometimes tries to use a bit of classic African American cadence in his speech when he's on a roll, but he still has this patrician air about him that makes it feel somehow contrived. Walton does it and it sounds completely natural and authentic, and I don't expect the contrast with Walton in the courtroom is one Wells is accustomed to or one from which he's deriving any great benefit, if indeed he's aiming for a kind of folksy, traditionally African American authenticity.
Outside of the presence of the jury, it seems Wells may have lost a minor credibility point or two with the judge, and Walton's opinion matters. Judge Walton has approached this case with a generous posture, trying hard to allow the defense to present its case, through four months of CIPA hearings and by offering the defense some laititude in the questioning of potential jurors' possible biases against the administration during voir dire. But late this week, Walton more or less called bullshit on Wells over a matter of the defense team's ability to review what turned out to be a rather small stack of documents in time to cross examine Cathie Martin. From emptywheel's notes: "Walton: I thought we were talking about reams and reams of documents. With all the lawyer power you got over there I don't think you'll have a problem." D'oh!
Moreover, with even greater animation, Walton declared it would be "suicide" for Libby not to testify in his own defense if he wants to make a case about his faulty memory. That, after all, was the point and the presumption behind all those months of painstaking CIPA hearings. Walton's opinion matters, not only because Wells will need almost every close call on matters of law to go his way to create as much reasonable doubt as possible, but because, at least subliminally, greater confidence by the judge in the prosecution could very easily seep imperceptibly into the minds of jurors. And while the jury does not see this backstage legal wrangling, the press does, and as mentioned, Wells needs to win the public perception war to give Bush as much possible incentive to pardon as possible. I don't envy him: Wells has a helluva tough job.
So, to sum up on Wells, I have a great deal of sympathy for his situation: he's not been dealt a strong hand with this case, and to try to win this one, he has to try to complete Hail Mary pass after Hail Mary pass. He's struggling mightily to pull it off. In my view, he's just not doing it, so far. Still, it's a long trial process, and all he needs to do is make one big connection one time, one "if it does not fit, you must acquit" moment that at least one juror can hang onto, and he could win. You never know. He is a highly able, highly accomplished attorney, by reputation one of the best in his profession.
I'll keep this one a bit simpler, if only because Fitzgerald tends to keep things simpler, at least in his questioning, his opening statement and his other communication, especially in front of a jury.
Let's start with what Reggie Walton said of him on the record, outside of the presence of the jury, calling him one of the most scrupulous prosecutors he's ever had before him. Everything about Fitz, in front of the jury and away from the jury, screams "straight arrow." It seeps through everything, and he carries himself as one who feels he does not have to rush his case, overcomplicate things or resort to gimmicks or histrionics.
Of course, he gets to choose what cases he will bring to trial, so he has the luxury of waiting until he has everything lined up. He does not come across as a gambler, which is why it must have really killed him to take a flier in Fleischer, buying a "pig in a poke" by granting him immunity on the blind.
Fitz may keep things simple, but as a presence, there's nothing really all that simple about him. There's a bit of opacity swirling around Fitz, and it's not just his office's perpetual "no comment." It's also just Fitz. He may sit in repose with his hand on his chin, or fingers absent mindedly tugging at his ear, but his mind is wide awake. Something's going on in there. I've found that people who come across this way actually can gain a power advantage in their interactions with others, as long as people feel or sense that what is hidden can be trusted.
Though openness can create trust and gain the confidence of others, opacity also has its power, if only because people want to figure out and are drawn to a person of mystery. If the mystery comes across as possibly nefarious, however, then all bets are off. That's why Wells' early loss of ground with the judge in the credibility sweepstakes versus Fitz is bad for the defense: to make Fitz look shifty, the defense is going to need some help somewhere from the judge.
One underestimated Fitz ability is his talent for telling a story. "Tell me a story, daddy!" says the young child at bedtime. The daddy sweepstakes are all about trust and taking the jury where you want them to go, and so the power of narrative is critical in the process. Fitz told a rather tight, linear, simple story to the jury of the case with his opening statement, in calmly compelling language, especially in contrast to Wells' epic and confusing opening presentation.
Wells is a thunderer, and if you're going to make that work, the audience needs to buy in to your story of injustice and outrage, and must find your American Idol power crescendos compelling and perfectly tuneful. Fitz, on the other hand, is going for the steady dad image, the one you can quietly trust to take care of you and sort everything out for you at the end. He croons in quieter tones that come across as more natural, less forced. Walton talks to the jury; Wells seemed often and in his opening to be talking at the jury. Fitz also talks to the jury, doing his Atticus Finch thing. As Harper Lee suggested, juries can really appreciate that, even if, in To Kill a Mockingbird, Atticus, arguing for the defense, lost his case.
I shared an elevator ride with Fitz the morning of opening statements. "Let's go, Mets," I offered, knowing I could not get anything of substance from him even if I tried. He has this way of talking that comes across as almost shy, with his lips a little tight on one side of his mouth, not wanting to betray too much (I was wearing my media badge, too). Nevertheless, he chatted me up about the Mets, the pending start of Spring training and the disappointing end to the football Giants' season through six floors. He carries a kind of humble air about him that must be maddening to defense attorneys, though behind it all clearly lurks a killer instinct and a kind of missionary zeal for the cases he chooses to pursue. Fitz is not a man to be misunderestimated in a courtroom.
So, who's the daddy? (Do I sound like Maury Povich?)
Thus far, Walton has kept his handle on the attorneys and the process, and the jurors really seem to like him. He needs to ride this case out and keep from being reversed, and though I'm no judge of the legal aspects of all that, from what I can gather from the legal brains running around, he seems on reasonably safe ground so far.
Wells is trying hard to be the daddy, and has perhaps the toughest job to establish that kind of credibility, but he's also hit some bad notes, and it's begun, in my view, to hurt him (and his client). He has time to make all this up, however.
Fitz seems to me to be ahead in the daddy sweepstakes: if he's channeling Atticus Finch, well, Atticus is the idealized dad, after all. The press is not buying the idea that Fitz is an out of control prosecutor, floated earlier by Team Libby and the Barbara Comstock disinformation operation, because the decision not to indict Rove completely undercuts that narrative.
We'll see how all of this unfolds, but I'll probably be back in the courtroom tomorrow to check in again with the jury, watch how they're responding, and see whatever wrangling ensues among these three sturdy egos during the inevitable arguments over Ari Fleischer's testimony.