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About Those Jury Instructions…


Let me start by saying…look, it's Marcy and Jane in the NYTimes.  After all of the work we have put into covering the Libby case, it is lovely to see a bit of recognition of the effort, I have to say, from some of the corporate media types we've worked alongside throughout the trial coverage.  I know that I enjoyed getting to know a number of the folks in the media room — and having them realize that not only were we serious about our trial coverage, but that we had done ALL of the work to know the details, the facts, the intricate interrelationships of the players, and that we'd been covering tis story for years before we ever got to the courthouse.  (I mean, honestly, Marcy is a human encyclopedia about this case after all the work she did on Anatomy of Deceit, and having her in the courthouse all by itself has been fantastic.) 

This bit is my favorite part:

Sheldon L. Snook, the court official in charge of the news media, said the decision to admit bloggers — 5 to 10 of about 100 reporters present on busy trial days — has worked out well.

“It seems they can provide legal analysis and a level of detail that might not be of interest to the general public but certainly has an audience,” Mr. Snook said.

Even as they exploit the newest technologies, the Libby trial bloggers are a throwback to a journalistic style of decades ago, when many reporters made no pretense of political neutrality. Compared with the sober, neutral drudges of the establishment press, the bloggers are class clowns and crusaders, satirists and scolds.

For the record, Judge Walton's entire staff and all the folks at the courthouse have been wonderful throughout the entire process.  From the first day forward, our whole team of bloggers were treated like every other professional covering the case — there was no distinction made, no patronizing attitude, just the same treatment for all of us.  The amount of work that has gone into covering this case has been astronomical — the live blogging, the courtroom observations, the late night analysis, all the IMs and phone calls to cross-check details — you name it.  But so worth it, still, to get the entire story out and not just blurbs and bits.

And I cannot thank Judge Walton and his staff enough for giving us this opportunity.  Truly. 

One correction, though:  the MBA did NOT negotiate our media passes.  We have been working on getting passes for this trial from the moment Libby was indicted.  Jane and I made calls to the courthouse, e-mailed, wrote letters, and worked on getting credentialed from very early on.  To emphasize our commitment to doing serious coverage, we enlisted the help of Arianna, whose Huffington Post name was more recognizable than FDL to folks not familiar with how blogs had been covering this investigation.  But the gaining of our three media passes?  That was OUR work.  And it was our consistent work on this case — for years — that got us the passes, and not anyone from the outside.  I don't want to get into a pissing contest with some other blog group because, frankly, I've got better things to do with my time this morning, but I wanted to be clear on that point — we worked our butts off to get credentialed for this case, and we were credentialed early.  Mr. Shane may have misunderstood on that point, so I wanted to make that perfectly clear.

There was also a great article about Jane earlier in USNews — some of you may have missed it, so I wanted to link it up this morning.  Thought you guys would get a kick out of this.

And now onto the legal minutiae for today…

There will likely be a legal haggle over the various proposed jury instructions in the Libby case today.  So I wanted to give everyone a sort of baseline knowledge about just what jury instructions are — and why the haggle over them is so important to attorneys on both sides of the case.

Essentially a "jury instruction" is just what it sounds like:  guidance, in the form of a written instruction, as to the definitions, the law, and the reasoning that a jury must use in looking at all of the testimony, the evidence and the information that has been presented in a particular case.  These instructions are a guidebook, of sorts, for the jury in navigating the entire case and in evaluating all of the information that they will have seen and heard from both sides throughout the trial.

Information such as what can or cannot be considered as evidence in the case.  For example, direct testimony from a witness about something that witness said or thought is evidence.  The fact that the defendant did or did not testify is not.

There is an art to crafting jury instructions — as a practicing attorney, I found it to be quite an intellectual challenge, actually, to come up with jury instructions that explained the law in lay terms for the jury, and yet somehow enabled me to use the judge to argue my viewpoint of the case when he read off my instruction.   Being able to draft good, clear and legally accurate jury instructions which still get your point across to the jury is a tough thing to do — to be able to do so where you accurately portray the law and yet also get your point across to the jury with your words is even more difficult.  (Which, frankly, is why I found working on them and doing them well quite satisfying.)

In this case, both the government and the defense will have already submitted proposed jury instructions to the judge, complete with the draft of the instruction itself as you want it to be read, along with citations to supporting case law of prior cases that serve as the precedents on which your proposed instruction rests.

Judge Walton and his clerks will have read through these proposed instructions, will have gleaned the information out of them that they find persuasive and will have drafted a proposed set of jury instructions of their own that the judge will put forward as his first possibility for the jury to hear.  And then the haggling will start from that foundation — with both sides of the case arguing that their perspective on, say, the definition of "perjury" and the elements required to be proved in order to secure conviction is the true and accurate version of that particular point.

Sure, it sounds incredibly dull — and the legal wonks in the audience can back me up on this — jury instructions can make or break your case. 

Once the instructions are set by the judge, a final copy will be given to the attorneys.  And they will work from that for their summations to the jury.  "The judge will tell you _______" is a fairly common phrase that you will hear on something like this.  And, once the summations (or closing arguments) have finished, Judge Walton will then read these instructions to the jury and they will be given a copy of these instructions to take with them into the deliberation room while they debate the verdict of the Libby trial.

One of the tricks of writing a decent instruction is to do it in such a way that the intent of the law is clear, but that it is written in such a way that the jurors eyes don't glaze over in the hearing of it.  It doesn't help if you put your jury to sleep while they are being instructed.  Judge Walton has come across thus far as a fairly no nonsense judge — and I'm looking forward to seeing how these jury instructions shape out in the final arguments today.

So — any questions?

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com