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Wake Up and Smell the Questions, Part Two

Fitz: reading through the question of whether the story was based on what he knew about the crime they were investigating. That's no different than if he tells a story that the law enforcement doesn't account. The defense used it in their summation.

Walton: What about that Mr Wells, you made a bit point about that. Libby represented taht he did not have the type of time he normally had to refresh his memory, I assume that was put before them to explain what he said to FBI. They have something, IE the GJ testimony which suggests that even though he didn't have the time to review that.

Wells: it was a different argument. Libby in GJ, in March 5.

Walton: We're going to take a short break. THe Marshalls are waiting for me to release the jury. Then we'll have more arguments.


Walton: You were saying.

Wells: when I was referring to his GJ testimony. I was making the same argument WRT the inability to talk to his staff. Mr Libby testifies to the GJ, last two pages of the March 5 testimony, bc he's saying, I normally would bring my people together. And that's how I would remember what actually happened.  It had nothing to do with the Matthew Cooper statement. THe issue is that there's a potential that this jury could think that for purposes of determinign whether govt has established beyond reasonable doubt that htey can base that judgement on some textual analysis of his GJ six months later. We have to be protected from that vice. The govt's arguments are very attenuated, that when balanced. 

Walton: I agree with you that they can't say that bc he said it to GJ they can't also say he said it ot FBI, but I don't think I agree iwth the position, especially in light of what's before the GJ, that what he said to FBI could not be construed as knowingly false, since he said the same thing later. The jury could conclude that when he spoke to the FBI, he didn't have preparatoin, but when he subsequently said it, then he had time to prepare. Presumably he would have changed his mind having refreshed his memory.  Again, it's how you instruct the jury so they don't misuse it.

Wells; Perhaps what we can do is draft language. I'm concerned about teh vice. The vice has great potential for mischief. Can we come back at 9:00, I'm going to take a half hour, 9:30 tomorrow.

Okay here's what seems to be going on: 

First, the first two questions have to do with the timing of the statement. The jury seems  to be ready to say Libby lied about SOMETHING on one of the two interview dates (we're not sure–but it seems to be the grand jury testimony [update: no–it's clear they were talking about the FBI interviews]). So they're trying to come up with the language as to whether they can declare him guilty on just one of the two interviews. Wells seems pretty troubled by this. And Walton is most interested in making sure that they all agree about which interview Libby lied in. 

Okay, the other quesiton has to do with whether the Jury can use the GJ testimony in support of count three–the weakest Cooper charge. The debate has to do with this. Fitz has argued (and Walton appears to buy it this far) that some of the evidence about HOW he remembers should be available for the False Statement charge–should it be allowed to corroborate the FBI story. Meanwhile, Wells rightly wants to prevent the jury from saying that, if Libby lied in March, then he lied in October and November. It seems like Walton wants to find some language to (surprise) split the baby–allow the general evidence about memory to be admitted, but not the assumption that Libby said the same thing twice.

As to tea reading–well, this jury is still agonizing over count three. I still say this strongly indicates they have decided Count Five as guilty. And then the remainder just has to do with a unanimity issue–do they all agree which statement–and which interview–Libby lied in.

And finally, there's the question of how they understand the Obstruction charge. They should know that ANY ONE perjury conviction would result in a possible obstruction conviction. But they seem to be trying to decide on Three, possibly, before they get to one.

Anyway. I hereby declare it beer thirty. See you tomorrow, at 9:30, folks! 

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