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Wake Up and Smell the Questions


We just received a note that two teams will return to court to review a note from the jury. Whew hew, the media room jumps to life at the chance of doing … something.

The two legal teams appear to have the note. Some animated discussion. Jeffress appears to be a happy man, Team Fitz appears to be pressured. Now both sides are quietly reading the note.

He heard me!! I said, "I think Jeffress looks a lot happier," and he winked at me. We're all getting sicko.

Okay, Team Libby asked for some dugout time to discuss this, so now we're reconvening at 4:30. 

Just to avoid any confusion. Jeffress didn't wink at me. As far as we know, this is not a two-way close-circuit TV.

From Pach  4:22 PM EST:  I didn't think Jeffress looked happy.  I saw that Fitz was ready to confer with the defense for 10 minutes in the courtroom to work out a joint response, and Wells turned to "Bill" Jeffress with some animation to argue for a private caucus among defense counsel to think about a response.  That led to Wells' request for extra time, which court staff conveyed to the judge (who was not in the room).  Walton responded the request for extra time was granted.  That's what I saw. 

emptywheel back. Damn. I thought someone was winking at me. It's pretty dull here, in Prettyman land. You take what you can get.

Fitz in. Definitely no smiles. They're writing a response. Oh wait–Bonamici gave me a smile! (I'd much rather have her winking at me than Jeffress.) 

Here comes Team Libby. Now everyone looks serious. Except Libby–we've already discussed his facial expressions, no? One of the Team Libby associates is shaking his head.  

Both sides are discussing this now, but out of range of the camera. All I can see is Pach, looking VERY INTENTLY toward the discussion. Kedian and Zeidenberg joining in late. 

I do believe we've managed a 10 lawyer conference. With poor Libby deserted there at his table.


Okay, now both sides are wandering back to their tables. REading. Everyone looks mystified about what to make of this.

Walton in.

Walton: What's counsel's take on the notes.

Fitz: I think we're close to an agreement on the first note.

Walton: Difference between one and two?

Fitz: I think we're close to deciding something.

Walton: I don't want to keep thejury waiting until tomorrow.  The only other issue. I'll let you all work on that to see if you can come up with something. But I do have an issue as I was trying to come up with some language, and I know that counsel had not requested unanimity instruction regarding this count. I think it may be a problem. I had "and' between the two dates. Govt requested that it be changed to "or". Jury doesn't have to find that he falsely made the statement on both dates. But is there a unanimity issue WRT this count, in light of statements made on two different dates. I don't think the defense suggested he said soemthing different on one day and the other. We've got to know taht the jury is saying he made a false statement on one and the same date that's alleged in the indictment. I don't know if there's a unaninimity issue or not. THe issue can't be waived. We have to know that jury reaching unanimous verdict on one of the two dates or both.

Wells: I'd ask you give us time to reflect on it [really quiet]. We need to discuss among ourselves and with the client. It's just too important. 

Walton: there's going tobe a claim of plain error if we don't know that there's a false statement made on a particular date.

Wells: I'm happy to discuss it once I have time.

Fitz: If we could jump ahead to the third item. Are we allowed to consider all testimony. Count Three. If a juror believs that he told a consistent lie on all counts.

Wells: I'd take a very different position, the answer is a definite no.

Fitz we don't think there's any evidence that's limited ot a count.

Walton: It depends on how they can consider. Obviously they can't consider what he said befor ethe GJ and assume that he said it to the agents.  They need to make an independent determination. I do think the govt is right that the jury could buy in on proposition that he committed himself to statement when he spoke to the FBI, and hterefore could not back away from teh statement. And therefore he testified consistent with what he said. THey can consider it from that perspective. I don't that that means he said it to the FBI. I don't know how you convey it to the jury.

Wells; it's very diffficult, it has the potential danger.

Walton: Do you disagree with it?

Wells, I think the answer is no.


Wells Given your honor's instruction what they need to come to a conclusion regarding the FBI discussion.

Walton If the reverse were being asked, I think they could consider what he said to the FBI in considering what they said to the GJ. That could be used to suggest that he would then repeat the same falsehood. I don't know if the reverse can be said. 

Fitz: It's not just about making the statement, it's about knowing it's false. To the extent that he said something in the GJ, why would it show that he knew.

Walton: He's not admitting when he was before GJ,

Fitz: There's evidence in GJ that a juror could believe that Libby did not forget until he learned from Mr Russert. You said you may consider any facts which indicate defendant's motive and purpose.

Walton: I was not taking into account what he said to the GJ in what he said to the FBI. I was not making the argument that what he said to the GJ was proof of what he believed when he talked to the FBI.

Fitz: If a juror is trying to decide that by the time he spoke to FBI, or COoper, he had forgotten this, by hearing the testimony in GJ that he learned it from VP. Much of the VP testimony described what he remembers being told. To tell the jury that is removed from the evidence. In fact the defendant insisted that his GJ was introduced for all purposes. To say we're state of mind case. To say his claim abotu state of mind would undo what this case is about.

Walton: If there's a question as to whether a person made a statement. And all they have is law enforcement officials testimony that that statement was made. And then the govt is able to present evidence that defendant makes statement under oath, that the govt now can document and govt's position is that consistent with agent's description of what he says, why can't the jury consider taht later statement in their assessment about whether it was made.

Wells; We made no challenge that the statement was made.

Walton: You didn't concede it either. ANd you did challenge Agent Bond's credibility. 

Wells; This is a very dangerous area. IF there was a completed crime, it was done and completed in October. Now what the jury is asking can they reach forward to March and use that evidence.  The theories the govt is giving your honor, are so marginal. the potential is so great. The answer for this completed crime is no. If he did it, it was done.

Walton: I am having some issue if he related it back subsequently. But I don't believe what he said to FBI has no bearing. If he allegedly falsely makes a false statement to FBI and repeats it, it could be used.


Walton IF there was a challenge made, that the statement was not made. Whether consistent with govt theory whether it could be used to show state of mind. How would it show state of mind, 

Fitz: three things. First of all, there's a rebuttal to the notion that he didn't have time to prepare. It shows that he used the same story after he had time to prepare. Second, Defense using the GJ, he gave testimony in GJ, he'd gather people around him, that wasnt limited to a particularly count, it was used by Wells in summation. Then there's the issue of whether he said that because of the way it relied on unauthorized disclosure. It's just like an interview of a person in a crime being asked about embezzlement.

Going to a new thread now 

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Wake Up and Smell the Questions, Part Two