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Libby: Out of the Starting Gate

[Cross-posted at Firedoglake]

Pachacutec has done a great job at Firedoglake of live-blogging and commenting on the jury selection process in the Scooter Libby trial (also see here and here, and as updated in the comments to the posts.) With 30 of the 36 needed prospective jurors already qualified for cause, I think we'll have a jury by Monday afternoon. It won't take long for both sides to exercise their peremptory challenges. Then what?

Then we're off to the races. Opening arguments will begin Tuesday. Looseheadprop did a nice job of explaining the process of openings here.

Since I've never been a prosecutor, only a defense lawyer, I can't get behind the prosecution mindset to predict Fitz's strategy for his opening statement. But I can say what I expect of Libby's defense lawyers in opening.

If they are as good as I think they are, they will use the opening statement to tell a story, not just recite facts. They will continue with the theme and theory they began during jury selection: that Scooter Libby was a man on a mission to protect our national security and that he was far too busy and preoccupied with this weighty responsibility to be focused on conversations he had with reporters about Joseph Wilson's wife, Valerie Plame Wilson.

If Libby's lawyers are to be effective in opening, they will use it to begin convincing the jury that Libby is actually innocent of the crimes charged, that he is a likable human being much like the members of the jury or someone they love, that he sits before them unjustly accused and that convicting him would be a terrible wrong.

They will again introduce the theme of memory, that human memory does not operate like a video recorder which records an event on tape and thereafter never changes and is never altered by external or subsequent events.

Judge Walton has refused to allow a memory expert to testify at Libby's trial. So the defense will have to try through other means to show that human memory changes and fluctuates based upon several factors. If you'd like more information on this, here's a 1996 article I wrote on the topic.

The theme and theory that Libby's lawyers use in opening argument will be continued throughout the trial. They will re-introduce it when cross-examining the government's witnesses -- and when questioning their own witnesses, including Libby. They will raise it again in closing arguments.

The goal is to show tell Libby's story from a positive point of view. They will accept the "facts beyond change" -- such as those which unequivocally demonstrate that Libby spoke to Tim Russert, Matthew Cooper and Judy Miller and his statements to investigators and the grand jury. They will weave their defense around these facts, since they can't change them.

Libby's lawyers will present an alternative to the prosecution theory that is both consistent and integrated. They will use “quotables” -- phrases that stick in the listener’s memory. And they will take advantage of anticipated jury instructions that work in their favor.

There is debate among trial experts as to whether the opening or the closing argument is most important. Are jurors more influenced by what they hear first or what they hear last -- primacy or recency? At least one study found that 75% of the time, the final result in a trial is the same as the tentative conclusion held at the end of opening statement.

Given the facts of this case as we've come to know them, this is a tall order for Libby's lawyers.

Whatever else, the opening statements of both sides will be the roadmap of the case -- the preview of coming attractions. I'm really looking forward to dissecting them. For the blow by blow as they happen, Christy of Firedoglake will be live-blogging them.

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    Good analysis (none / 0) (#1)
    by Deconstructionist on Mon Jan 22, 2007 at 07:17:03 AM EST
      I wish we had more of these types of posts and less of some other types-- but that's just me.

       Aas for which is more importnant. I'll give our favorite answer-- it depends on all the circumstances. Sometimes (maybe more often) opening statement and setting the tone and constructing a "filter" through which the jury views all the evidence is more important. I think this its true when all or most of the key facts are uncontested and the decision will turn more on the interpretation of the facts.

      When key facts are hotly disputed and credinbility issues are of major importance, I think closing argument is often more important.

      That's an over-simplification because there are other factors that can be involved too, but as a generalization I think it holds up pretty well.

     

    Nice job (none / 0) (#2)
    by whoke on Mon Jan 22, 2007 at 11:40:18 AM EST
    Thanks for the thorough look at what to expect, arguments to be made, etc. There's so much "this happened, then that was said" that it's refreshing to see something anticipating the next step. Nice analysis.


    i think the toughest sell here is (none / 0) (#3)
    by cpinva on Mon Jan 22, 2007 at 01:08:49 PM EST
    the
    that he is a likable human being much like the members of the jury or someone they love
    part. because, well, he isn't.

    he isn't particularly likable, he comes off as just barely human, and has the misfortune of being part of an administration that's made it clear, for 6 years, that they're better and smarter and richer than all the rest of us.

    granted, i've never met the man in person, this just from what i've seen and read. but then, neither have any of the jurors.

    as i said, a tough sell, unless the jury is comprised solely of people who've spent the past 6 years living in a cave.

    now, if his attorneys talk about what a nice yard he kept, and what a fine, helpfull neighbor he was, expect a death sentence. :)

    cpinva (none / 0) (#4)
    by jimakaPPJ on Mon Jan 22, 2007 at 06:57:01 PM EST
    Do you know him personally, or are your attacks on him based on a political position?

    Parent
    jim, you can't read now either? (none / 0) (#9)
    by cpinva on Tue Jan 23, 2007 at 10:29:39 AM EST
    i stated that i'd never met him, what didn't you understand?

    of course my comments are based, to a large extent, on politics, what else is there to base it on? it was strictly in reference to jeralyn's opinion, as to what she'd say to the jury, in opening remarks, were she his attorney.

    as for my last comment, that was meant to be humorous. you know, the classic "serial killer" description, by his neighbors. geez, i thought that was kind of obvious.

    Parent

    Talk Left (none / 0) (#5)
    by jimakaPPJ on Mon Jan 22, 2007 at 06:58:42 PM EST
    Wouldn't it have been wise to get a change of venue?

    I don't see how you can get an unbiased jury in DC.

    Unbiased? (none / 0) (#8)
    by Repack Rider on Tue Jan 23, 2007 at 12:40:26 AM EST
    I don't see how you can get an unbiased jury in DC.

    I believe Fitzgerald has enough confidence in his case that he is not worried about jury bias, at least not as worried as you are.

    Are you suggesting that the jury is so biased that they will let Libby off even if his guilt is proven more conclusively than OJ Simpson's?

    Why would you think that?  Do you have any, um

    EVIDENCE

    that DC jury pools are "biased" toward the defendant?

    Parent

    Is satic the correct word to use? (none / 0) (#6)
    by ding7777 on Mon Jan 22, 2007 at 07:07:33 PM EST
    Memory, on the other hand, is static. It changes and fluctuates, based upon several factors.

    static = changeless

    you are right (none / 0) (#7)
    by Jeralyn on Mon Jan 22, 2007 at 07:20:39 PM EST
    it should have read "not static."  The link I posted to is the only one left with the article and the error has never been corrected.  

    Donate (none / 0) (#10)
    by squeaky on Tue Jan 23, 2007 at 12:22:11 PM EST
    to the Libby Defense Fund. Atrios is thinking of donating, mee too.

    What is a few bucks for a good cause.

    And emptywheel's live blogging is well worth a look. Opening statements are posted.