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Circling Like Vultures


The jury has now deliberated nine days. Best as I can reestablish with my PACER password glued to my computer at home, here are the breadcrumbs the jury has left for us to follow its trail.

Wenesday, February 21, PM 

[Jury asks for easel, masking tape, and post-its. Rayne and Marcy sigh in office supply giddiness.]

Thursday, February 22, AM

May we please get any one of the documents where there are pictures of the witnesses.

Tuesday, February 27, 4:30 PM

We would like clarification on the charge as stated under Count 3 specifically:

Page 74 of the jury instructions, "Count three of the indictment alleges that Mr. Libby falsely told the FBI on October 14 or November 26, 2003, that during a conversation with M. Cooper of Time Magazine on July 12, 2003, Mr. Libby told Mr. Cooper that reporters were telling the administration that Mr. Wilson's wife worked for the CIA but that Mr. Libby did not know of this was true."  (i.e., is the charge that the statement was made or about the content of the statement itself)

Judge's note at the bottom, sent on Wednesday morning — I am not exactly certain what you are asking me. Can you please clarify your question?

Wednesday, February 28, 10:45 AM

Psyche! After further discussion, we are clear on what we need to do.  No further clarification needed.  Thank you.  We apologize. 

Wednesday, February 28, 3:45

We would like another big Post-it pad. The large one for the easel. [Cue sighs from Marcy and Rayne; cue grumbling from the office supply agnostics.] 

Thursday, March 1, 4:00 PM

[The jury requests a dictionary and requests to be let go the following day (Friday) at 2PM. Judge Walton says no to the dictionary but yes to the early dismissal.] 

Friday, March 2, 10:30 AM 2:00 PM

We would like clarification of the term "reasonable doubt." Specifically, 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 guilt beyond a reasonable doubt.

Friday, March 2, 2:00 PM 

As Count 1 statement 3 (pages 63 & 64) do not contain quotes, are we supposed to evaluate the entire Libby transcripts (testimony) or would the court direct us to specific pages/lines.

Thank you.

 Monday, March 5, 4:05? 

[3 questions, all relating to Count 3.  The first two appear to relate to the timing of the statements. The third relates to whether the jurors can use evidence from the grand jury testimony in their consideration of whether Libby lied in his FBI interviews on October 14 and/or November 26]

Now, obviously, they've barely let me in the court room, much less the jury room, so what I'm going to say is pure conjecture. But this sure seems like a vulture flying in slowly tightening and accelerating circles over its prey.

On days one (a half day), two, three, and four, the jury progressed methodically, with all the order you might find in a corporate retreat. Late on Tuesday, day five, the jury hit its first stumbling block–a seemingly simplistic confusion over whether the charge related to Libby lying to journalists–or to the FBI–on count three, the false statements charge alleging Libby lied about his conversation with Matt Cooper. After Walton asks for clarification the following morning (day six), the jury decides they can answer this on their own. The jury appears to regain steam by later that day–at least, they've gone through their first flip chart. Then, on day seven, they seem to hit another stumbling block. They ask for a dictionary (and an early Friday). The jury, observers guess, has hit a stumbling block on a legal definition, perhaps on a regular doozy like reasonable doubt. And sure enough, early the next morning they ask for clarification on reasonable doubt–though they hold that request until the afternoon, as if they continued to try to work it through themselves. Also on day eight, they ask for clarification on the part of the obstruction relating to the Cooper charge. 

Note, this is a different charge than the one they previously asked about (Count Three, false statement), but as I explained in a post on this question, it seems to suggest different thinking about the two Cooper charges (the false statement and the perjury).

Now, if you recall back in closing statements, Zeidenberg made a really great attack on Team Libby's assertion that the Cooper charge amounted to just a few words. Zeidenberg said:

You remember COoper said at end of conversation. He said What have you heard about Wilson's wife sending him on the trip. Libby's response, "yeah, I've heard about that." Wells suggested that differences between LIbby's version and Cooper's version, is just difference between a few words. Cooper said, I heard that too. And Libby said, I heard that too, but I don't know if it's true? But is that the evidence in the case. Do you remember what Libby ACTUALLY said what occurred in that conversation?  I'd like to play portion of what Libby said he said to Cooper.

Libby, then Cooper said, why did Wilson say it?

[Libby's GJ tape: I would have thought, off the record, that CIA wouldn't tell, who asked about it. Conversation VP has is supposed to be confidential. They'd have said that CIA tried to do it. I wouldn't have thought that he heard this, but if it's possible he heard something unofficially, it was wrong. In that context, I said, off the record, reporters telling us that Amb Wilson's wife works at CIA. I don't know if true. But if it's true, it may explain why Wilson got some bad information at agency.]

By anybody's count, that is not a few words. By any account, that is not what Cooper said Libby said. He never told Cooper, I don't know if it's true. It's made up, made up out of whole cloth. Ladies and gentleman, Cooper could never have taked as confirmation the things Libby had told him. Cooper took this as confirmation. How could he have taken it as confirmation?

Basically, Zeidenberg responded to this "just a few words" charge by demonstrating that Libby babbled on and on and on during his grand jury testimony. Jeffress responded by showing that the False statements charge really only alleges that Libby said a few words.

For the sake of closing arguments–and for the sake of the Cooper charges generally–this seems to be gamesmanship.

But not for the obstruction charge, where this appears. The jury seems to be asking whether they should take the allegation in the Cooper false statement charge, which says…

Mr. Libby told Mr. Cooper that reporters were telling the administration that Mr. Wilson's wife worked for the CIA, but that Mr. Libby did not know if this was true.

…or whether they should take the allegation in the Cooper perjury charge, which includes multiple sections of Libby's babblings.

This suggests to me that the jury is approaching the two Cooper charges differently. It suggests Zeidenberg's argument may have done the trick, by pointing out Libby's endless babblings in the grand jury charge, he may have convinced the jury that there would be no way to confuse what Cooper said Libby said–"I heard that too"–with paragraphs and paragraphs of babblings.

Effectively, by ordering the jury to refer to the entirety of the grand jury testimony this morning, Judge Walton basically told them the allegations made in the perjury charge–the paragraphs and paragraphs of babbling–were available for this charge.

But that didn't answer the questions about the Cooper charges. Late in the afternoon on day nine, the jurors asked three more questions about the charges. We have not yet seen the questions, but it seems that the jury implied it believed Libby had lied about the Cooper charge in one–but perhaps not both–of his FBI interviews. We await indication whether they all believe he lied in the same interview–but Judge Walton seems inclined to instruct them that a lie in one of his interviews was sufficient to find Libby guilty. 

But that's not enough, it seems, for them to convict on the false statements charge. They also asked if they could use the grand jury testimony to support their consideration of the false statements charge.  Again, this seems to mirror their earlier confusion about whether they should consider the obstruction charge using all the babblings of the grand jury testimony, or only the sparse statements alleged in the false statements charge. More and more evidence seems to suggest that Zeidenberg convinced them with that the babblings in the grand jury testimony could not be equated with Cooper's version of the statement. Mind you, I'm certain that Walton will instruct them that the can only use the babblings in an ancillary consideration of the false statements charge, if at all. But it's as if they're saying, "well, if we're convinced he lied in March about his Cooper conversation, is it really possible he told the truth in October and November."

Now, by all accounts, Count 3 is the weakest charge. It basically pits Libby's testimony against Cooper's and, to a lesser degree, Cathie Martin's. Whereas all the other charges involve either more substantive differences between Cooper's and Libby's testimony, or many more witnesses. Which would seem to suggest that they're honing down on the last charge, trying to come to agreement over the fifth charge.

Of course, we don't know that. They may have perceived the Cooper charges to be easier to work with. They may be moving back and forth between all the Cooper charges first, before they get to the Russert charge. The biggest piece of evidence supporting this notion is that they asked a question about the obstruction charge at a time when they should have been convinced of Libby's guilt on Count 4. After all, simply a conviction on Count 4 might be enough to convict on Count 1. And if they had already decided on the seemingly easier Russert charges (Counts 2 and 4), then they wouldn't need to consider the Cooper allegations in the obstruction charge that closely. Remember, though, while a guilty verdict on one out of the two perjury charges is sufficient to a guilty verdict on the obstruction charge, it does not necessitate an obstruction charge. The jury may feel more confident convicting for the stronger charge of obstruction if they can show that Libby made a coherent attempt to cover-up any evidence to support an IIPA charge, rather than just making up a pathetic, isolated, story about Russert.

But to me it seems much more likely that they've almost honed in on their prey. Accelerating circles, nearly ready to pounce.

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