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Two Questions

Good morning firepups.

Jane and I both had very relaxing weekends with the poodles and the MilleniaLab, respectively. Now that I'm all rested, I'm confident we're going to get a verdict this week (though Christy's making rumblings about an Allen Charge, as are some of the journalists). Though I just made a lunch date for tomorrow, presuming we get no verdict, so I'm hoping for tomorrow afternoon.

We'll start this morning arguing about how Walton should respond to the two questions from the weekend. Then we'll bring the jury in to answer their question.

One more point: Do not ask about how the jury is dressed today! They're going to come in wearing their jury best, since they have to come into the court room to get their questions answered. (In fact, as someone pointed out, the jury wrote the first of their notes on Friday at 10:30; that suggests they sat on it so they wouldn't have to come into the court room in their jeans.) So it will not mean anything wrt whether or not they're close to a verdict. 

Team Libby and Team Fitz are poring over their responses to the questions. Though it seems to be going fairly amicably. It looks like both teams have benefitted from a weekend as much as Jane and I. 

Hey, Pachacutec just showed up!! Looks like we'll have a full FireHouse today. 

Walton in. 

Walton: I received what you all proposed I should say. I think I'd be inclined to deviate somewhat from what both parties are requesting and tell the jury that the instruction that was given to them regarding reasonable doubt fully explains what that concept means and tell them that they need to go back and review in its entirety and reevaluate what I told them in their assessment of reasonable doubt. It is my belief that is what is contained in what I presented to them, what the govt's obligation is in satisfying reasonable doubt. I don't think I'd be inclined to indicate what the govt is requesting, because I'm not sure what they're asking. If the govt has to prove guilt beyond all doubt, then I'd say no, and I have some concerns about responding in the way the govt has suggested. I'd be inclined to say that I don't fully understand what they're saying.  Any comments.

Bonamici: The govt's request is merely that the court address the specific language the jury used. THe govt would object to directing them to the previous instructions.

Walton: I don't know what they're asking me. There was a situation where a woman's car fell on a child, it wouldn't be humanly possible that she pick up the car, but she did.  I don't know what they're asking. I don't know whether they're asking whether govt has to prove guilt beyond all doubt.

Bonamici: What the govt has proposed is that your HOnor instruct the jury that the govt doesn't have to prove beyond human possibly–use their language so we're not injecting any language into it. We assume the jury has already read the instructions. Merely re-reading this back to them is not answering the question. If the defense had argued that the jury must acquit if it is humanly possible that the Defendant did not recall these events, we would have objected and the court would have provided a supplemental instruction. If the jury is believing that this is the statement of the law, then they need guidance.

Walton: I just don't know what they're asking. Bc the instructions tell them, the govt doesn't have to prove beyond mathematic or scientific certainty.

Fitz and Jeffress rise.

Fitz: My only point being, if you look at their note, after writing it at 10:30, they worked on it, then sent it out. If they had written, we'd like clarification of reasonable doubt. They said, "specifically." THe answer is no, and if we answer their specific question, that is not required to be proved. If you say no, but then referring to the reasonable doubt instruction. They've sent out a very specific note. I think we should do what the Supreme COurt says. THey've asked, do you have to prove that it is not humanly possible. If I'm a juror that sends out a note with that specificity. 

Walton: I want to answer it if I understand what they're asking. They may be asking something that goes beyond what the govt needs to prove.

Fitz: I don't know how much more specific they could be.

Walton: Humanly possible is a nebulous term. I think I should ask them what they mean.

Fitz: Will the clarification be directed to humanly possible?

Walton: Yes, I'll indicate I don't know what they mean by that term.

Fitz: It'll be directed at those words?

Jeffress: The defense position is that the answer should be the opposite. WRT inviting the jury to ask further questions WRT the definition. Precedent directed judges not to inker.

Walton: I was one of the judges they needed to tinker with. THe court of appeals, yeah, they rebuffed me, but I eventually won.

Jeffress: once the court starts tinkering, you diminish the reasonable doubt standard. 

Walton: I'm going to ask them to rephrase it. Maybe they'll come back and say, does the govt need to prove beyond all doubt.


Walton: In reference to the second question, the govt provides additional locations.

Wells: what the govt is trying to do, we submit, is to expand the charging language in cout one, to make it track the far more expansive language in count five. What they've provided your honor is the pages that track count five, which is a lot longer. The language we have provided is the language in the indictment. If you look at what the GJ charged, it charged there were three false statements that comprised the instruction. This is what the GJ charged. That Libby advised Cooper on July 12, that other reporters were saying that Wilson's wife worked at the CIA and Libby didn't know whether this statement was true. That is what the preliminary instructions tracked, You can't do what the govt is asking, the govt is asking you to amend count one to pick up the charging language from count five. They can't collapse the perjury charge, which is from their indictment. THey can't convert a limited concise statement in count one to a more expansive statement in count five. That's what they are trying to do. That would be inappropriate. The govt should not give them anything beyond what's in the indictment.

Fitz: we couldn't disagree more. Perjury is the more specific count. The obstruction count includes language about the GJ. It generally says he obstructed the GJ, then it says, it was part of the obstruction that defendant made the following false statements. Then it goes on paragraph 33, to say that at the time of the statement he knew it was false. The sections we have provided are all about these issues. The obstruction is more general than the perjury charge.

Walton: I might agree with you that if there were passages that specifically relate to Cooper.

Fitz: That's what they are.

Walton If they're just general statements regarding Valerie Wilson. They've specifically requestion guidance on Cooper.

Fitz: these do relate to convesations with Cooper. I could walk you though it. March 5, page 184, we suggested line 23, what did you tell Matthew Cooper. It's a description of the Matthew Cooper conversation.

Walton: [reading, Fitz looks up from time to time to monitor his reaction, Walton still reading]


Fitz: When your Honor indicates that you've read that I can move onto the second transcript. March 24, govt exhibit 2, page 116, line 18 through 117 line 10, and again it's specifically about the Cooper conversation. It starts quote, when you told Cooper that the reporters were saying, who were the reporters you were referring to?

[Bonamici and Zeidenberg whispering, Walton reading, one of the female associates for Team Libby was clearly heavily involved in this response, she's standing behind Wells and Jefferss, kibbitzing] 

Fitz: 128 line 1, he states that when he heard it from Russert and Rove he didn't think it was classified. And when I talked to reporters, he said, "I don't know if it's true."

Walton: Where's he make specific reference to Cooper?

Fitz: I realize it's the next one, 182. Two more sections, 182 line 14. It's the same. Uniformly telling reporters he didn't know whether it was true. He says every reporter he told that Wilson's wife works at the CIA, the section about the Russert answer, 191, line 22. It goes to the following page, that's the one where he's asked about Russert and he mentions Cooper. The question was asked by the GJ, if he thought it wasn't classified, why was he so careful. Among one of the things we didn't know that he had a wife. They go directly to the question of Libby telling Cooper that he didn't know about the wife. Given that their question is what they should evaluate, we think this is a fair response.

Walton: I'd agree that the defense language is too restrictive. My concern is that the jury be instructed in such a way that they understand that these passages relate to Cooper, that it would be appropriate to consider anything he would have said before the GJ that relates to his conversation with Cooper.

Wells: Maybe we're getting back to the issue of what is meant by the question. If what is meant by the question–they're trying to figure out what is the charge. 

Walton: They're asking where in the transcript where he made the statements that amount to obstruction.

Wells: I agree with that, if that is the question they cannot go beyond what is charged in the indictment.

Walton: the govt did not say there was only one passage they were referring to.

Wells; They said there were three false statements, You cannot go beyond the GJ charge.

Walton: They're saying, where in the transcript.  The govt's position is that in other parts, he made reference to that same convesation and jury should be able to consider that part of the GJ testimony as well.

Wells; It's not a matter of consideration. All I'm asking your honor, is that if you just stay with the indictment.

Walton: I understand that, I'm trying understand whether these passages fall within the purview of what is alleged in subsection B.

Wells: What the GJ charged is specific language. The GJ was very specific.

Walton: are you saying that the only thing in the transcript is what you've referencesd.

Wells; What I'm saying is what the charge is. To consider whether this statement was a false statement. I have no problem if they read all the Cooper statements. We can't go beyond the charge.

Walton: Why are you saying that what the govt referenced are not dealing with this statement?

Wells; I didn't even know if he had a wife–that's not part of the statement that GJ charged. If they want to read that part of the testimony for evaluative purposes. We can't amend the language of the charge. We predicated the preliminary instructions on tracking this language, we did everything based on our understanding that B relied on the false statement. What the govt is doing is trying to expand the nature of the charge. I have no problem as to what the GJ wants to charge.

Walton: are you saying there's nothing else in the transcript that falls under what's alleged in Paragraph B. I Would agree that to the extent that there are other statements that go beyond B, it would be inappropriate for them to assess whether he made a false statement. My question is is there language in what the govt offered that goes beyond the charge.

Wells, I think they're asking about the charge.

Walton: the govt didn't say that what Cooper said was page X, line B. If there are other passages that fall specifically under that language, I would agree with the govt. Counsel needs to sit down to see whether there's agreement…I agree if what he said expands on passage B, but if there is in fact language in his GJ testimony that would fall under the language as alleged in paragraph B, it'd be inappropriate to limit it. I need to look at the transcript to make that call. You need to sit down to see if you can reach agreement on that. I won't tell the GJ that the scope of this can be expanded.

Wells; Maybe the right answer is not to direct them to any pages, but to say that the charge WRT the obstruction, is to quote Paragraph B, we can tell them they can review all the GJ testimony. I'm just saying there's a very specific charge. Fitz says perjury. 

Walton I guess you're saying I shouldn't even tell them what you're saying I should tell them. They're asking for guidance, so they can focus on the portion of the transcript that relate to charge B. Maybe that's their role, to search the transcript.

Wells: right, I just don't want this jury to be confused that the charge is anything other than the charge in B.

Walton: I wouldn't instruct them beyond it.

Wells I think the most important response is that the charge is what was in the indictment. I'm more concerned with the charge.

Walton: I just don't know whether there are other statements that he made.

Wells: Maybe the right response is to say it's in the instruction, and they are free to rely on any testimony in GJ.

Walton: I think it should be more specific than that. If they are able to discern from the transcript, statements that relate to B, they are able to consider those statements.

Wells; I am in no way trying to restrict them. The charge is what is already in instructions. We based defense from day one. [Fitz stands]


Walton: if the govt wanted to refer to these, it could have. We can't usurp the role of the GJ.  

Fitz: The jury wasn't asking what's charged.

Walton: Where in the transcript did he make statements that are covered by this charge. My concern is is it appropriate for judge to point them to parts of the transcript. I'd  be making myself part of the fact-finding process.

Fitz: what if we told them the charged language is what's in the instruction. You can use both transcripts. The parts where he refers to Cooper are as follows.  It wouldn't be changing the charged language.

Walton: My concern is am I making myself part of the fact-finding process when I designate where in the transcript they should refer to. That's the GJ's role to make that cut, the jury can make that same assessment. I'm having problems with me stepping in and telling them these are the parts o fthe transcript.

Fitz: What if the jury said, we can't find where in the transcript Addington testified.

Walton: I wouldn't have a problem with that. If they asked, tell me which part of the Addington transcript related to a particular charge. It's their job to decide whether that passage relates to the charge. I don' t have a problem telling them they have to review the transcript to identify those parts that relate to B, they need to assess whether this part of Count One has been proven.

Fitz: Count Five, we've already given them guidance.

Walton: BUt that's because you set that out. I don't think that's a problem to indicate what I did in the instruction. But if that wasn't done for the obstruction charge, I have a problem telling them what to refer to.

Fitz: One moment your honor.


Fitz: If we can consult with the defense on specific passages. But back to the first question. We suggest this langauge: What the court does not understand what you mean by "not humanly possible. In order to properly respond to this question, the jury should explain its use of that term.

Jeffress:  I think giving them that kind of homework to define what they mean by that terms is going to get them debating something that has nothing to do with the guilt and innocence.

Walton: My job is to be more than a bump on a log. To do what's being suggested is the judge's job. I've got to tell them I don't understand what you're asking in that regard. If you can further explain, I'd help them.

Jeffress; It's not just the term humanly possible.

Walton; That's what they're asking. What I have concerns about is that particular language.

Jeffress; It says is it necessary for the govt to provide evidence that it's not humanly possible to not recall. If you ask them to define that, we'll have the jury back there debating what that might mean. That'll not advance the ball.

Walton: I'll draft something. We'll take a short break.


So Jeffress was drafting language, and Libby was standing behind him, peaking over his shoulder. This is actually a very interesting moment, showing Libby's involvement in his own defense.  Jeffress finished, handed it to Wells, Libby walked away. Meanwhile, Fitz seems to be working on his own. Now the two teams are discussing, Wells is pretty heated. Zeidenberg and Kedian pacing. Kedian chewing on her fingernails. Libby digging under the table for something.Getting a happy mint out. Offers one to Jeffress.

Libby reading over Wells' shoulder again.

Lots of discussion about whether 1) they don't think Russert is credible, 2) they don't realize they only have to find one false statement (the folks here have confirmed that the verdict form does not specify each prong of the obstruction charge) 3) they jury is just confused about the obstruction charge.


Looks like Fitz and WElls have reached some agreement on the Cooper language. Fitz is rewriting it. Don't know where the rest of the defense team went. Lots of looking over the shoulders at the Defense table. Looks like Fitz has the rewritten statement.  

Now we're milling about the court room waiting for Walton. Wells keeps taking off his glasses and putting them back on again. I'm going to start a new post, for the Walton answer. 


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