Walton's responding question (in response to the question on reasonable doubt) and his answer (in response to the Cooper question) is online now–thanks to Jeralyn for grabbing it for us. Here's his reasonable doubt response (and this may answer some qusetions about supplementary instructions a few of you were discussing earlier–that is, there isn't one):

The instruction on reasonable doubt is the most detailed language I can provide you on what constitutes reasonable doubt. I request you re-read the reasonable doubt instruction and consider all of it in your evaluation of what amounts to reasonable doubt and what the government's burden of proof is in proving guilty beyond a reasonable doubt. 

As to the second part of your question which reads "Is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilty beyond a reasonable doubt," I do  not fully understand what you mean by  "humanly possible."  If you can rephrase the question considering the language I gave you in the reasonable doubt instruction, I will assess whether I can provide further guidance to you.

It was a narrow win by Fitz to get that "humanly possible" question in there–according to Jane, Fitz looked pretty bummed when Walton was leaning against that. Don't blame him of course–it seems like a simple "no" might get us out of here and home to our dogs sometime this week!

FWIW, the instruction Walton gave to the jury reads:

Reasonable doubt … is doubt based on reason. … Reasonable doubt is the kind of doubt that would cause a reasonable person, after careful and thoughtful reflection, to hesitate to act in the graver or more important matters in life. However, it is not an imaginary doubt, nor a doubt based on speculation or guesswork; it is a doubt based on reason. The government is not required to prove guilt beyond all doubt, or to a mathematical or scientific certainty.

As to the Cooper question, he says they can consider "any and all portions of Mr. Libby's grand jury testimony" to answer the question. That strikes me as a Solomonic baby–Fitz was not allowed to point to the passages in question, but neither was Wells allowed to limit it to the narrow language in the instruction. Since they have those passages marked in charge 5, they should be able to find them reasonably easily.

The jury should be back from lunch now–if Jane's back, then they have to be too, I say. But we haven't heard from them. Maybe they decided to auto-instruct again, since they never seem to get much help from Walton.



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