Uh oh! Juror problem in Libby trial.

[displacedtexan]

From firedoglake:

Walton: Received motion for evidentiary hearing. My recollection of my questions for voir dire is that I asked for association with lawyers. I did ask about an knowledge of lawyers associated with firm. I don't think a juror has said something or not said something. If she recognizes Mr. Randy Turk as a lawyer and made an association between him and the legal team. I don't know how to resolve it other than query her if she has . The partner at issue was not in the court room at the time, the partner was not associated with the defense until yesterday.

Jeffress: We do think voir dire should be handled with one lawyer from each side.

Walton: I need to get a court reporter. We'll break until we can get a court reporter. Shouldn't take long.

It sounds like one of the jurors had a case against one of the lawyers from Baker Botts, who showed up yesterday for closing statements. They're going to query her in chambers to find out whether she has a negative association with him.

What do you think Wells will do?

Cry again?

[merh]

1. that's why they have alternates

and if that person just showed up, how was the juror to know of the association?

Grasping, which is what a good defense lawyer does - challenges every technicality and makes a record on everything that could possible infringe upon his client's constitutional rights to a fair trial before an impartial jury.

It is not whining, it is good advocacy.

[displacedtexan]

6. Would you forget a Baker Botts lawyer?

On second thought, maybe this lawyer just signed onto Baker-(Bush)Botts.

[Norquist Nemesis]

12. Oh, thanks. Now you've got my conspiracy theory inclined brain

going on a rampage. LOL!

(Like this!) That this lawyer "just showed up" at the end of a trial that defense appears to be losing is quite a coincidence! Then, coincidentally, this very happenstance becomes an issue that the defense has with one of the jurors. hmmm...

[AngryAmish]

24. Actually it is a common practice

When one has a closing argument you pack the gallery (lawyers, secretaries, relatives...anyone). Then when the other side starts their closing everyone from your side gets up and leaves. One wants to convey to the jury that your side has the advocate everyone wants to hear and the other side is not worth listening to.

Also having young lawyers listening to closing is a good thing for training.

This may seem a bit of inside baseball but it is a common practice.

[Jackpine Radical]

26. Funny--that's exactly the theory I was gonna post.

Maybe we both need a med adjustment.

[merh]

19. it's very possible

Especially if one considers that they have approximately 750 lawyers working for them, the new name could have easily been a transfer from one of their other offices. They have offices in Austin, Dallas, Hong Kong, Dubai, Washington, Houston, London, Moscow, New York and Riyadh.

Baker Botts is an international law firm recognized for our creative approach to the legal and business issues facing our clients. The work we do is often groundbreaking.

With approximately 750 lawyers and a worldwide network of offices, Baker Botts works with our clients on a wide range of matters. Our approach to the law practice is collaborative, with lawyers functioning as integrated teams to bring the most appropriate response to client needs.

Since 1840, Baker Botts has been highly regarded for our integrity, our work ethic, the quality of our legal advice, and our people.

[babylonsister]

2. Tinfoil hat time: the juror was a plant, and we're looking at a mistrial?

That would keep Scoots free until he can be pardoned. :tinfoilhat: :shrug:

[Atman]

7. I would be astonished if they didn't have plants on this jury

There is a LOT of money and jail time involved. These goons don't play softball. I have nothing but "gut" to go on, but hey..."gut" seems to work for Bush when he wants to take us to war for his Master Cheney.

.

[Senator]

10. That's what I thought when David Brooks predicted "hung jury"...

...on the Chris Matthews show this weekend.

He may have been included in the round of nods and winks.

--

[displacedtexan]

3. Waiting for the jury to come in.

And we're waiting.

And waiting.

I need more coffee.

[Jacobin]

4. Are there any alternate jurors in this case?

The judge could:'

1) determine that she can put aside any feelings against/for the attorney and let them continue to deliberate.
2) Seat an alternative juror? (i don't know if its too late for that)
3) declare mistrial and start over again.

[Norquist Nemesis]

5. Help me out with a who's who, please

I haven't been following FDL. Can you help out a little (Walton is the judge, right?) Who's Jeffres? :shrug:

Yeah, I figure they'll be coming up with questions about the jury now. It's their last stab and also might give them a basis for appeal.

[displacedtexan]

9. Jeffress is the other def. attorney.

Wells is the lead def. attorney.

Walton is the judge.

[Norquist Nemesis]

13. Thanks! n/t

[mod mom]

8. VOIR DIRE:

Voir dire (IPA /vwa? di?/) is a phrase in law which derives from Middle French. In origin it refers to an oath to speak the truth (Latin verum dicere), so that according to the conventions of modern French spelling it should be voire dire. However, in modern English it is interpreted by false etymology to mean "to see them say," and generally refers to the process by which prospective jurors are questioned about their backgrounds and potential biases before being invited to sit on a jury.

Voir dire can include both general questions asked of an entire pool of prospective jurors, answered by means such as a show of hands, and questions asked of individual prospective jurors and calling for a verbal answer. In some jurisdictions, the attorneys for the parties may question the potential jurors; in other jurisdictions, the trial judge conducts the voir dire.

In the United States the process of voir dire is often much more in depth than in other countries and its practical implementation is somewhat controversial because of this. The amount of privacy that the potential jurors are afforded when asked questions raises the issue of the definition of "impartial jury". Some people question if the intensive questioning of potential jurors looks not just for inherent bias but for a potential to be emotionally swayed. On the other hand, proponents argue that this method gives both sides more confidence in the verdict.

-snip

In common trial, however, voir dire is a motion to cross-examine an expert witness during opposing counsel's direct examination. This action is intended to establish the credibility of said witness before damaging evidence is brought to court through this witness who may not be credible. This saves possibly not only days of testimony and wasted time for a court, but also ensures any prejudicial evidence is brought through by a credible, expert witness.



http://en.wikipedia.org/wiki/Voir_dire

[Catherine Vincent]

11. Even if the juror is dismissed, they have alternates.

Right?

[displacedtexan]

14. Walton continues

(Don't know what will happen with the juror problem yet)

Walton: Presumption of innocence remains with defendant.

If govt proves every element of offense beyond reasonable doubt, then you must find guilty.

Reasonable doubt kind of doubt that would cause a reasonable person to hesitate to act in graver or more important matters of life. Based on reason. Govt not required to prove doubt to scientific certainty.

Witnesses, whether witnesses impresses as an individual, accurate reflection, full opportunity to observe matters about which testified, friendship or hostility with this case. Inconsistencies may or may not cause you to discredit testimony. Always consider whether important or unimportant detail.

[itsmesgd]

15. So what are we going to see in the next few hours/days

Are we going to get a clear decision? Guilty/ not?
And, as a side note, where's Dick today, ah yes, out of the country. I hope he flees in fear and never comes back.

[displacedtexan]

18. Lawyers will try to tweak jury instructions

Defense- for grounds in a possible appeal or to get a not guilty verdict

Gov't- to quash grounds for appeal if Libby's found guilty

Then the jury will retire to deliberate.

I'm guessing they'll take an immediate vote. If no consensus, they'll wade through
all of the testimony and maybe ask for clarifications from time to time.

[itsmesgd]

20. some observers said that it appeared to be a slam dunk for Fitz

Do you think the dleiberations will drag out? I think that Cheney is expecting the verdict this week.

[displacedtexan]

27. Oh, to be a fly on the wall.

You just never know with juries.

My 2 questions:

1. Did Scooter lie to the FBI and the GJ on purpose?

2. Did Scooter keep the Justice Dept. from finding out who leaked Plame's CIA status?

Here's hoping there's at least one clear-thinking juror who can frame the charges
so that everyone can agree on what they're voting on.

Have I missed anything?

[Hepburn]

16. Depends....

...on the facts which come out when the juror is voir dired in chambers. There are many reasons that the juror may not have even realized that she had some past association or connection with the atty. She may have forgotten his name...and only recalled him when she saw him, he may have been with a different law firm and thus no connection in her mind with the present law firm, etc. The primary issue is whether facts come out that would lead the judge to believe that some past connection would cause her to be biased.

And...IIRC...there are alternative jurors. If there is a problem, one of the alternates will be seated. IMO, this is relatively minor in that jury instructions have not been given, so there is no way that the jury has started deliberating...and if a replacement is necessary, nothing at this point in time will disturb any deliberations.

BTW: I am a lawyer...just saying this for anyone who does not know...and I have done jury trials where a juror had to be replaced. And, please note: I am stating the above GENERALLY ~~ there may be other factors involved of which I am not aware that might make a difference, but I cannot think of anything off the top of my head.

[Raven]

17. Usually, at the biginning of a trial

the judge asks the jury pool if they recognize or have any relationship with the defendant or any of the lawyers. At that time, people can raise their hand and go have a chat with the judge. Baker Botts is a huge firm...maybe the juror didn't make the connection between her lawyer and that firm. Maybe, because that lawyer wasn't present when the questions were asked, she didn't think she had to say anything. I'll bet they bring in an alternate.

[itsmesgd]

21. from fdl

Earlier consistent statements, you may consider this consistency and as proof that what was said was true.

Ari Fleischer's grant of immunity. Consider whether such testimony furthered witness' own interest.

Law enforcement official's testimony, consider using same guidelines you apply to other witnesses. In no event give greater or less weight.

Right not to testify. Libby has chosen to exercise this right. Do not use this against him.

Consider each count separately. The fact that consider him guilty or not guilty should not influence other counts.

One count you were asked was whether nature would render your ability to render fair verdict.

Now going into charges.

(snip)

It looks like Scooter might pay for a pattern of lies, Ari's immunity, and Scooter and Dick's absence from the stand.

[displacedtexan]

22. Walton is still going...

Walton: Memory: Amount of time, circumstances that existed, nature of information or event person is called upon to remember, circumstances that existed when person asked to recall event, amount of time between event and recall, your assessment of memory, any evidence that shed light on memory of individuals.

Earlier statements made not under oath as opposed to these statements.

Earlier statements made under oath–you may consider this earlier statement as proof that what was said in earlier statement was true, as well as to question memory of earlier person.

Earlier consistent statements, you may consider this consistency and as proof that what was said was true.

Now he's moved on the counts.

Going through the Judy Miller part of the Obstruction charge. Just Russert and Cooper. You may however consider evidence presented on conversations with Miller at trial to evaluate whether Obstruction.

[displacedtexan]

23. Great analysis of charges from an FDL reader

This should be interesting. I re-read the indictment this morning, and I’m curious to see how closely the charges as told to the jury will match the wording - or as Fitz calls it, ‘the four corners’ - of the indictment.

I was struck by how well-structured the indictment charges are, in particular how little they rely on whether Miller, Cooper, and Russert’s memories are reliable or not. Instead they all rely on a comparison of Libby’s testimony against the fact that multiple government officials remember having conversations with him about Plame in the weeks leading up to the leak.

I think it’s plausible that Count 3 (False Statement) wrt to Cooper’s testimony could come is as ‘Not Guilty’, because that charge is the one that relies most heavily on Cooper’s memory, but even that one references Libby’s insistence that he believed he had heard of Plame’s CIA employment from reporters.

The other four counts include that assertion about reporters, plus Libby’s assertion that he was hearing it ‘as if for the first time’. That last phrase is simply not credible, beyond a reasonable doubt, given the multiple conversations Libby had with various officials and CIA briefers over the weeks prior to Plame’s outing.

So, assuming the jury instructions match the wording of the indictment, I think the jury will return a guilty verdict on at least 4 of the counts.

wrt- with regard to

[Blackhatjack]

25. This is why jurors are not allowed to discuss case until sent to deliberate....

Anything can happen with a jury, and often does.

Most trial juries have one or two alternate members who are treated the same as the other jurors right up until the time the case is given to the jury to retire and deliberate. At that time the alternate jurors are relieved and dismissed from further duty.

In this case, all bets should be that the relationship created a negative view of the member of the defense law firm. If that juror is dismissed and an alternate juror is substituted, it will have no practical effect on this jury, and is in no way a basis for appeal unless there other jury misconduct we do not know about.

THis happens a lot more often than people realize, and the substitution of an alternate juror is standard procedure.

[displacedtexan]

29. Do remaining jurors ever indicate ill will toward lawyers after...

one of them is replaced?

Or is that something that goes unmentioned?

[Blackhatjack]

36. Once a juror is dismissed from service, they are free to talk to anyone they wish. However,...

a replacement will not be proposed after the jury has begun deliberations and a mistrial would almost have to be declared, because the bias or problem may have already 'infected' the jury. The more likely option would be to proceed with the jury operating with one less juror, and I would not want that if I were the defendant. All you need is one juror to hang the jury, and one less is an advantage for the prosecution.

I would not want to proceed if that juror had a negative feeling reflective on those of us involved in defending our client, even if the Trial Judge gave us that option.

Trials are notoriously difficult, time-consuming in preparation, expensive, emotionally draining, etc. Even so I would rather do it all over again, unless the prosecution made a serious error in presenting their case which would be remedied in a retrial.

[itsmesgd]

28. Tin Foil Hat brainfart here, Please tell me that's I'm nuts

Would shrub start bombing Iran five minutes before the verdict comes out?
The UN deadline for Iran to stop enriching uranium was yesterday (the 21st). Congress is on break, Dick's out of town, and the carriers are close enough to start the campaign.

Please tell me that I am nuts, but if Anna Nicole Smith should lose her grip on the news to the Scooter verdict, would the shrub fear that his administration was on thin ice and therefore start something? Or..will we just get a generic terror warning?

[displacedtexan]

31. OK, you're scaring me.

Frankly, nothing BushCo might do in the next 700 days would surprise me now.

Of course, I say that knowing how many freakin' times they've shocked the hell out of me.

[itsmesgd]

33. I wish that I were nuts, but like you said, how many times have they done the unthinkable

I'm wearing my padded tin foil hat this week here in my bunker

[displacedtexan]

34. And they've got us just where they want us.

GGGRRR!

[Smarmie Doofus]

30. Why not? It works. That's how Alito got on the SCOTUS. nt

>>>What do you think Wells will do?

Cry again?>>>

[displacedtexan]

32. FDL says he (Wells) looks bored today.

Maybe he's just itching to spend his new money.

[displacedtexan]

35. Another great FDL reader comment while we wait for an update

This was posted to respond to a comment about Jerralyn's HuffPo post:

I’m a defense lawyer too (though in the civil context, mostly) and I think there will be conviction on at least some counts. What surprises me most about Jerralyn’s assessment is not that she sees opportunity for reasonable doubt — there is almost always the possibility that at least one juror will find some — but that she thinks Walton erred in not letting the defense put on a memory expert. There may be some need for a memory expert when you are talking about prosecutions based on recovered memories of long-ago abuse. Blocking out a traumatic event for years and years, and recovering it suddenly, is something beyond the experience of most people, and requires some explaining. But an expert to opine that people can forget stuff? Everyone forgets stuff. Everyone has forgotten that their spouse told them a week ago that s/he would be out for dinner on Wednesday. Everyone has forgotten a doctor’s appointment. Everyone forgotten a conversation they had a month ago about something that didn’t seem important at the time. And everyone knows that when they are crazy busy or stressed, something is more likely to “slip their mind.”

In short, unlike recovered memory, the possibility of forgotten conversations is easily understood by lay people. The question is, do the facts proven at trial support, or disprove, that the defendant in this case forgot about a particular conversation or conversations? Is it possible that, given the number of conversations, the defendant’s own written notes, etc., that the defendant really forgot?

That’s the question in this case, and no memory expert was needed to mount that defense. Remember, this is not a case about Libby forgetting from June/July to October that he’d talked about Plame with 9 different people. This is a case about Libby “forgetting” in mid-July that he’d been talking about Plame for the immediately preceding four weeks, including the very week he “learned as if for the first time” that all the reporters knew Plame was CIA.

What memory expert was going to be able to opine that THAT scenario was likely?

[Blackhatjack]

39. Expert witnesses have hurdles to negotiate before testifying...

I have done criminal defense, and most close questions on expert witness testimony should be decided in favor of the defendant in order to ensure a fair trial. THat being said, you do not get to call all the experts you want, and they cannot testify about anything THEY think is relevant.

THe standard is that the expert must be trained and/or possess the requisite knowledge needed to render an informed expert opinion on the specific subject matter at issue, which will assist the jury in understanding evidence presented in the case.

So first the expert has to be examined out of the hearing of the jury, voir dire, for qualifications and the basis of their opinion(what they were shown, saw, tested, examined,etc) and the medical, technical and/or scientific basis for their opinion which is recognized as being conformity with the opinion of the community of experts in that specialty.

The expert witness may be barred from testifying for lacking credentials, for not having examined all of the essential evidence in a particular case which could have influenced their conclusion, or because the opinion is not shared by the community of experts in that specialty. Of if the issue that the party calling them to testify about is not admissible because it is one not relevant and/or material to the issues in the case.

Many times the trial judge will allow the properly qualified expert to testify on a very narrow issue. However, in other cases the judge will rule that the state of opinion among experts in this specialty is too uncertain to allow expert opinion on it one way or the other.

In this case, the 'memory expert' apparently failed to satisfy the judge that she could provide the jury with anything useful based on her voir dire examination.

[Beelzebud]

37. The fix is in.

[Peace Patriot]

38. Some thoughts on this jury problem...

First, let me say that I think Fitzgerald has enough on Dick Cheney--just with the evidence visible in this trial (which is likely only a part of what he has)--to, at the very least, issue a GJ report naming Cheney as an "unindicted co-conspirator" (and let Congress deal with it).

Second, I sure had the impression that Wells (Libby's attorney) blew the defense. Among big mistakes, saying in his opening that Rove/WH were conspiring to make Libby the fall guy, then producing no evidence to back it up; using the "bad memory" defense for Libby (making up conversations out of whole cloth!), then failing to put Libby on the stand to discuss his memory, then returning to that defense in his close (after having presented virtually no evidence for it); demeaning Valerie Plame's long and illustrious CIA career (calling her "the wife"); issuing a veiled threat to the jury that Libby is "an important man"; insulting the jury in closing remarks, by telling jurors to "help" other jurors who might let their political or antiwar views sway them. Then he cried. Yes, he did. Tears and all. "This man has been under my protection for a month. Give this man back to me!" he cried. It was the weirdest defense I've ever heard of. (Fitzgerald came right back, in his close, with, who was protecting Valerie Plame--whom you all demeaned as "the wife"?).

Third, Fitzgerald dismantled Libby's defense, and really drove it home in the closing statements--especially re the gravity of outing Plame and a CIA network (a WMD counter-proliferation network, no less), as the motive for Libby's lies and obstruction.

Given all of this, and also given Bush/Cheney's extensive domestic spying and "black ops" capabilities, there is little doubt that they can arrange a mistrial, in any number of ways. If that's what they want to do. Can you just imagine the computer programs they have running on all these jurors, on their families, on their employers, on their associations back to the hospital they were born in and the doctor in attendance; every email they ever sent, every petition they ever signed, every traffic ticket they ever got, every lawsuit they may have been involved in, their bank accounts and investments, the equity in their homes, the schools their children attend, the color of their kids' lunchboxes, and on and on. If there is dirt relevant to the trial, they will find it. If they decide to punish them for the wrong decision, they can do so without leaving a trace. And they know everyone's weaknesses, and how to bribe, bully and blackmail them. And they no doubt have fat dossiers on the judge, the prosecution team, the witnesses and everybody else remotely connected to the Plame outings.

These are not nice people, the Bush Junta. As Mike Malloy says, they are a "crime family." Just the list of crimes we know about should have put them all behind bars long ago. They are thugs. They use power brutally, and lethally. They have complete contempt for the law and no ethical standards.

In this context, it is quite worrisome--as to getting a conviction of Scooter Libby--that they would have a new lawyer suddenly show up in court, with some connection to one of the jurors. Is this why Wells didn't much bother with a defense? He knows the "the fix" is all arranged?

It is a legitimate worry. And it is this very out-of-control, illegitimate, brutal power that we are all worried about, on many fronts--for instance, with regard to a Bush/Cheney war of choice on Iran--and it is what this trial is ABOUT, at its core. The power to cavalierly (or pointedly!) destroy the lives of honest and loyal government employees, or anyone who gets in their way.

[mod mom]

40. "Now we wait, with bated breath." FDL

Lots of jurors taking last looks at Libby before they started deliberating. And apparently the juror's conflict with the Baker Botts lawyer wasn't that big a conflict–she appears to remain on the jury. So the final total is 8 woman, 4 men (we gained one of the PhDs from the alternates), two African Americans. Now busy deciding Scooter Libby's fate.

Now we wait, with bated breath.

And wait.

http://firedoglake.com/