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Meanwhile, Back at the Courthouse…

 capt67b61277555a4e48b7cadef9efe08fa6cia_leak_trial_dcpm107.jpg

(AP Photo/Pablo Martinez Monsivais)

I'm at the courthouse, and as Christy said in her update, one of the jurors was exposed to media coverage of the trial.  Nobody really expected anything early this morning, so everyone is scrambling into the media room to try and figure out what's going on.  Both teams are in the courtroom, and Fitzgerald, Wells, Jeffress and the judge are back with the jurors.  Lots of finger drumming, toe tapping and leg swinging on the part of those left waiting.  I'm sure the message from the judge to come back to court this morning was like a tazer jolt to everyone's already jangled nerves this morning.

What does this all mean?  Well I, like everyone else, look to Christy:

They will voir dire the juror in question, as well as all of the members of the jury to see what that juror saw and what, if any, impact it had in deliberations.  It could be as innocuous as seeing a headline.

I'm wondering if this is a product of the Toensing nullification argument special in the WaPo, to be perfectly honest.

Once they go through the discussion with the jurors on the record, there will be some determination made as to whether or not there is a substantial impact on the jury deliberations — or whether there is cause for a mistrial.  If a mistrial is declared, they will have to retry the whole case.  

 
What is more likely is that the judge will determine that what the juror saw did not have a substantial impact. Judge Walton will then admonish the jury not to have contact with media — period.  He may decide to sequester the jury from here on out.  He will likely issue a cautionary instruction on how this should or should not enter the jury room.   But we'll have to see what the level of exposure was to know what will happen.
 
And now we wait.
Toensing/WaPo jury tampering article can be found here.
 
10:45
 
Everyone is filing back into court — Wells, Jeffress, Fitzgerald and his poker face. 
 
Walton in the courtroom, calls everyone to the bench. 
 
Walton:  One juror has now been dismissed based upon the knowledge of her part that she did have information based on this case.  It wasn't intentional, but what she had exposure to disqualifies her from further deliberations of this case, so I need to know what counsel's position is as to how to proceed.
 
Wells:  It is the position of defense that jury deliberation should continue with a jury of 11 and that at this juncture an alternate should not be put onto the jury, because as we understand it if a new juror is appointed they must start deliberations all over again which is something in our opinion would be prejudicial to Mr. Libby.  That would be a jury of 11.  If we have a situation that for some reason another juror is lost, it is such that we would be left down to 10 and we believe your honor would have the ability to appoint the alternates in, so we're not on the "cliff of a mistrial."  Don't want to throw away 2 1/2 days of deliberations when these jurors are obviously making their way through the charges, and would be highly unfair to Mr. Libby.
 
FitZ:  The gov't would prefer 12 jurors.  If you're going to replace jurors anew that it's preferable to do it after 2 1/2 days of deliberation. We think there is a preference for 12 jurors and we think there is a risk that if someone gets ill we get into dangerous territory of 11 jurors.
 
Walton:  Don't think there is any reason to believe this jury was irresponsible — info from juror did not taint the others.  They have deliberated for 2 1/2 days, don't want to throw away that work.  If something does unforseeably happen to another juror then we sill have the option of recalling the alternates.  I did tell them before they left they should continue to not let themselves be exposed to this case from outside sources. So rather than throw away the 2 1/2 days devoted to this effort, I will allow them to continue their deliberations.  
 
(jury filed back in)
 
Walton:  The law does now allow you to continue your deliberations with 11 jururs, so that's what I'm going to do.  Let me just ask if all of you have kept yourself isolated from any information about this case — if that is so, raise your hand.  Okay, everybody raised their hand saying they have not had any outside information, and I ask that you continue to do that.  It is imperative  — you must decide this case based only on what you heard in this courtroom.  With that I ask that you go back and proceed with your deliberations.  Thank you. 
 
(recess — 11:01 am) 
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Jane Hamsher

Jane Hamsher

Jane is the founder of Firedoglake.com. Her work has also appeared on the Huffington Post, Alternet and The American Prospect. She’s the author of the best selling book Killer Instinct and has produced such films Natural Born Killers and Permanent Midnight. She lives in Washington DC.
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