Libby Jurors Raise Question About Reasonable Doubt

By Jeralyn, Section Lewis Libby Trial Coverage
Posted on Fri Mar 02, 2007 at 02:40:42 PM EST
Tags: Libby Trial (all tags)

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The jury in the Scooter Libby trial sent two questions to the Judge today before leaving early for the weekend. You can view them here.

The one about reasonable doubt is the most interesting.

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.

The jury instruction on reasonable doubt is here.

Update: My thoughts below:

Of course, this is reading tea leaves, but it sounds to me like one person (at least one, but in the minority) is taking the position that there is reasonable doubt because Fitz didn't prove that it was impossible for Libby not to have remembered an event.

Why in the minority? Because the answer is obvious and should be to them. It sounds like the majority have tried explaining this point over and over to one or a few people and they keep not getting it.

As to what the event is, I suppose it could be a conversation or a meeting. But I doubt they would have called it "an event" if they were talking about a particular statement within a conversation. Some possibilities:

The most basic: Could he have forgotten his June discussion with Cheney about Joe Wilson and his wife at the time he spoke with Tim Russert in July...so that as he said, when he heard it from Russert, it was like he was hearing it for the first time.

Less Likely:

The June 23 meeting with Judith Miller (which they are allowed to consider in deciding the obstruction charge which is now based only on conversations with Cooper and Russert, even though Libby's statements about Miller are no longer a part of the crime.) (Corrected per Marcy to reflect that the June 23 meeting was never part of the obstruction charge--only the July 12 meeting was, although the Court instructed the jury that all Miller conversations are still fair game for consideration of the obstruction charge.)

Update: On to the first note about the third statement in Count 1 of the Obstruction charge on pages 63-64. Here they are. The jury wants to know, since the statement is not in quotes, whether they should consider all of Libby's grand jury testimony or whether the court wants to direct them to parts of it.

(3.) That Mr. Libby advised Matthew Cooper of Time magazine on or about July 12, 2003, that he had heard that other reporters were saying that Mr. Wilson's wife worked for the CIA, and further advised him that Mr. Libby did not know whether this assertion was true.

Update: The jury only has the paper transcript of Libby's 8 hour testimony. They don't have it on computer like we do. If they did, they could go to these pages and read what Libby told the grand jury about his conversation with Cooper.

Your thoughts?

Update: Christy of Firedoglake and Marcy Wheeler (Empty Wheel) weigh in. Tom Maguire has posted the 127 pages of jury instructions here.

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Libby Jurors Raise Question About Reasonable Doubt | 35 comments (35 topical)

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Say what? (4.00 / 1) (#5)
by Deconstructionist on Fri Mar 02, 2007 at 03:08:08 PM EST

Scribe, while I await the English translation of your post, I'll elaborate, although I didn't think it necessary.

The jury asked:

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

The double negative makes it a little awkward but the jury is clearly asking whther the reasonable doubt standard is stricter and more in favor of the defendant than it actually is. Logically, one would infer that at least one juror must think that is possible or the questio would not be asked.

Therefore, the defense would not want it clarified brecause to the extent any confusion exists in the mind of any juror it seems obviously to benefit the defendant.

: I think I sould have retitled my first comment (none / 0) (#11)
by scribe on Fri Mar 02, 2007 at 03:38:25 PM EST

but I'm not that good at computerizin'.
We're actually pretty close on this issue, not including the double negatives and such.

IMHO (4.00 / 1) (#13)
by magster on Fri Mar 02, 2007 at 03:44:50 PM EST

The note on reasonable doubt and "humanely possible" belies frustration with the panel with one or two stubborn jurors with overactive imaginations, and they want the judge to set it straight.

Right now, team Libby is praying for those one or two to stand firm and cause a mistrial.

Well put (none / 0) (#14)
by Jeralyn on Fri Mar 02, 2007 at 03:46:51 PM EST

I agree.


: The problem is known as the Henry Fonda complex nt (none / 0) (#17)
by magster on Fri Mar 02, 2007 at 03:57:01 PM EST

#2 (none / 0) (#1)
by Deconstructionist on Fri Mar 02, 2007 at 02:45:23 PM EST

is interesting and I think scary for Libby. I'll bet the defense argunes strenuously there should be no clarification.

Wrong, you are. (4.00 / 1) (#2)
by scribe on Fri Mar 02, 2007 at 02:58:34 PM EST

It seems like almost every high-profile criminal case I can remember, and a lot of everyday ones, too, involve a jury question on "how much doubt must be excluded to be 'beyond a reasonable doubt'".

So much so, there is a developed body of law, and pretty much standard instructions, reminding jurors that "'beyond a reasonable doubt' does not mean 'absolutely no doubt', or 'metaphysical certainty' or similar".

My speculative opinion is that the mathematician is hanging them on "reasonable doubt" by insisting that the government have proved it is "not humanly possible for someone not to recall an event". That is not the standard - if it were, no one would ever be convicted of anything involving a false statement - because that standard would require the government to prove a negative.

Never, ever, ever let a mathematician on your jury. Drilled into my head by a now-deceased colleague "between spoons of soup" over our several years of collaboration.

Why?

Because no case has everything fitting together like the proverbial Swiss watch or jigsaw puzzle. There is always a loose end, and mathematicians (and, to a lesser degree, engineers and other scientists) both abhor loose ends, and reject anything which contains one.


Seems likely (5.00 / 1) (#4)
by digdugboy on Fri Mar 02, 2007 at 03:07:55 PM EST

However, if you are correct -- it is the mathematician holding out for more precision in the definition -- then the original comment is also likely to be correct. Once the definition of reasonable doubt is clarified, the verdict may likely follow in short order.


the point is (5.00 / 1) (#6)
by scribe on Fri Mar 02, 2007 at 03:14:26 PM EST

someone is being obstinate in their reasoning, and refusing to accept the definition of "reasonable doubt" which the majority in the room is hewing to. Thus, the majority of the jury in the room has gone to the judge to get him to tell the juror who won't go along, what the right standard is.

It's not "precision in the definition". It is that there are two definitions at work, and one of them has to go.

I explained why I think it's the math guy (or another of the advanced degree types).

I agree that once the judge straightens this out, a verdict will follow quickly.


: My point is.. (none / 0) (#16)
by Deconstructionist on Fri Mar 02, 2007 at 03:55:43 PM EST

..the jury already has a standard reasonable doubt instruction (it's linked above and is NOT the one you describe with the it doesn't mean stuff which is now widely disfavored) and at least someone still has the question.
So, as a defendant you argue, plead, grovel, beg that the judge merely inform the jury to rely on the istructions it has and that each juror must decide for himself or herself.

Sure, blame it on the mathematician (none / 0) (#18)
by jerry on Fri Mar 02, 2007 at 04:01:30 PM EST

I think that mathematicians, that deal in infinitesimals, epsilons and deltas, and limits of series can determine the difference between reasonable and absolute.

Admit it scribe, you did badly in math many years ago, and you are still taking that out on the mathematicians.

I AM A MATHEMATICIAN!

: Reasonable doubt (none / 0) (#23)
by Bob in HI on Fri Mar 02, 2007 at 04:47:23 PM EST

Jerry wrote,

I think that mathematicians, that deal in infinitesimals, epsilons and deltas, and limits of series can determine the difference between reasonable and absolute.
You've got the right idea here. If the mathematician wants to know what "reasonable doubt" means, all you have to do is tell him/her, "It means within epsilon" and s/he'll understand.
Back when I was a math major, we always used to say,
waggishly, "within epsilon, for epsilon sufficiently large."
Bob in HI
P.S. Jeralyn-- miss you over on FireDogLake.

Thanks for the tip! (none / 0) (#21)
by sarcastic unnamed one on Fri Mar 02, 2007 at 04:24:23 PM EST

Never, ever, ever let a mathematician on your jury.
Because no case has everything fitting together like the proverbial Swiss watch or jigsaw puzzle. There is always a loose end, and mathematicians (and, to a lesser degree, engineers and other scientists) both abhor loose ends, and reject anything which contains one.

As one who holds a engineering degree and who owns a small biz that requires my daily participation and who is, yearly, summoned for and has to get out of jury duty, I appreciate the tip on how to present myself the next time I'm summoned.


: my pleasure to be of assistance (none / 0) (#24)
by scribe on Fri Mar 02, 2007 at 05:01:39 PM EST

You should know, though, that the same qualities which make people with those jobs/professions so un-wantable for the prosecution or plaintiff in the civil case, make them equally wantable for the defense in either.
Remember the famous lawyer who said: "if it doesn't fit, you must acquit"?

Aren't you both saying the same thing? (none / 0) (#3)
by Jeralyn on Fri Mar 02, 2007 at 03:05:33 PM EST

That's it's bad for Libby? It can't be more than a few of them who think Fitz had to present evidence it wasn't humanly possible.

: I agree that it's (none / 0) (#19)
by Deconstructionist on Fri Mar 02, 2007 at 04:01:50 PM EST

probably a minority.
I have no idea as to whether this concern apllies to 1,2,3,4or 5 of the counts. It would certainly suggest to me there is a strong possibility of conviction on at leas one of the counts, and, as we know, federal trials tend to be an all or nothing game because of the relevant conduct provisins of the guidelines. Maybe, Wells should seek leave to file a late amicus brief in Rita.

Doubt is Doubt (none / 0) (#7)
by goldwater on Fri Mar 02, 2007 at 03:21:58 PM EST

If a jury person does not believe Fitzgerald made the case - then that is Reasonable Doubt.

Re the 'humanly possible' phrase - was it Fitzgerald that used the word 'madness' to describe it all?

: "Madness" (none / 0) (#8)
by scribe on Fri Mar 02, 2007 at 03:29:18 PM EST

was how Fitz started his reubttal summation, mocking the defense argument that the whole case was the result of madness and an out-of-control prosecutor.
IIRC, it had nothing to do with reasonable doubt.

burden of proof (none / 0) (#9)
by jrsutter on Fri Mar 02, 2007 at 03:30:57 PM EST

It could be a burden of proof question.

They may literally want to know if reasonable doubt is created if the government did not present evidence/witness that actually testified as to whether it is " humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt."

I think they don't know if a person can actually forget meeting with such "important people." Can an "important person" really forget important conversation.

The real question is did Libby lie to investigators about remembering or forgetting talking to people about how they were going to pull this sneaky little stunt.

It appears that they think that reasonable doubt rests on some external procedure, not what is in their heads.

: burden of proof IF it's an affirmative defense (none / 0) (#33)
by Screwloose on Sat Mar 03, 2007 at 08:06:27 AM EST

I agree with you that it's a burden of proof type of question, although it actually is a specific unanimity issue they're asking about.
If, but only if, memory were to be an affirmative defense [e.g., self-defense, entrapment, entrapment-by-estoppel aka government authority - - the frame-up defense proffered in defense counsel's opening statements (when he was drunk)] then the jury is to be additionally instructed that they must unanimously agree that the govt has presented evidence disproving the affirmative defense, too, before they find the defendant guilty of the charge[s] to which that defense is raised.
Libby's problem is memory is not an affirmative defense, it's a failure of proof of the mens rea element of uttering false statement[s] with an intent to deceive GJ so they won't indict him [his boss], costing him his job [them their jobs] [obstruct the GJ's investigation into the leak]. If they unanimously find the mens rea proven BARD, they're supposed to convict, which they've already been told.
There's some 9th Circuit caselaw on this type of instruction.
IMHO, this jury is intuitively bright and conscientitious, and just want to make sure they're not going to make a mistake - -because the lawyers could later make them look stupid - - because the jury charge isn't crystal clear. Pretty weighty decision they're being asked to make, which they appreciate fully.

as to the first note (none / 0) (#10)
by scribe on Fri Mar 02, 2007 at 03:36:06 PM EST

and whether something has to be in quotes, this is (IMHO) an artifact of not sending the indictment into the jury room. IIRC, the indictment and the charge do not necessarily have to charge the exact words which are alleged to have been false. Rather, they have to prove that "on or about a certain date within the district, A said something to the effect of X to B, and then A told the government (grand jury, FBI) (on another date) that he had said something to the effect of Y (not X) to B on that earlier date, and that A's telling the government the later "Y" story was materially false, misled the investigation, etc."

In this context, I think the answer is "not in quotes". Putting that paragraph in quotes changes the verdict from being over "what Scooter said" into being "did Scooter say what the drafter of the indictment said".

: Even if they don't have the actual indictment (none / 0) (#15)
by Deconstructionist on Fri Mar 02, 2007 at 03:50:57 PM EST

( I have not see the jury instructions)
wouldn't the instructions as to each count set forth in full the alleged false statements which for the basis of the count.
I'd think failure to provide that would be plain error squared and I can't imagine the instructions don't have the exact same portions of the transcripts as the indictment.
I'm not sure what the first note means because it is amenable to several interpretations

math on a jury (none / 0) (#12)
by jrsutter on Fri Mar 02, 2007 at 03:39:09 PM EST

Accountants are good on juries because if the government alleges a money crime--the accountant wants the numbers to add up. For him or her, the money has to actually be there, proven, in evidence.

: true (none / 0) (#20)
by scribe on Fri Mar 02, 2007 at 04:05:41 PM EST

but the advanced degree holders are not accountants (IIRC, there are at least 2 doctorates on this panel, one a math guy, and one something else).
Math is not accounting, though they both use numbers.

Jury Instructions (none / 0) (#22)
by Bill Rudman on Fri Mar 02, 2007 at 04:38:27 PM EST

Ms. Merritt:

You stated earlier that you had the jury instructions, but would not post them. Would you reconsider, or at least tells us where they might be posted elsewhere?

: JOM Has them Here (none / 0) (#25)
by Jeralyn on Fri Mar 02, 2007 at 05:24:07 PM EST

Tom Maguire of Just One Minute has posted them here. They are 127 pages in pdf.

"an event" (none / 0) (#26)
by p lukasiak on Fri Mar 02, 2007 at 05:43:30 PM EST

a few things....

First a technical point...

Jeralyn wrote

The June 23 meeting with Judith Miller (which they are allowed to consider in deciding the obstruction charge which is now based only on conversations with Cooper and Russert, even though it's no longer charged as part of the crime;)

but it wasn't the June 23rd conversation with miller that was an issue, but the July 12th one.

now to the "substance"

what I find most interesting is the use of the modifier "an" in the question.....

one of the jurors is apparently advancing the theory that the charges concern Libby's failure to remember the conversations with Cooper and Russert (and Judy?) properly, rather than the fact that he lied during his testimony. (i.e. the hold-out is saying "maybe Libby just forgot what he told Cooper, Russert, and Miller, and he's not really 'lying' and thus not guilty of perjury.")

It seems obvious from the note that the jurors all agree that there is no way that Libby could not have remembered that he knew Joe Wilson's name before July 6, and that he knew that Joe Wilson had a wife before July 14th. There are too many witnesses that testified to that knowledge for the use of the singular "an event" rather than the plural "events".

So, ten jurors have made up their minds to convict, and there is one idiot holding out based on the fact that Fitzgerald did not "prove" that Libby could not have misremembered the specific elements of the Cooper and Russert conversations. (although this is plural, a juror could argue that this was two separate singular events -- thus "an event".)

One other point.... the first note concerns the "obstruction" charge. "Paragraph 3" is preceded by paragraph 2, which describes (but does not provide quote) regarding Libby's testimony about his conversation with Russert.

IMHO, this signals that a decision has already been made about the Russert-related count of the obstruction charge (why ask a question about paragraph 3 that is applicable to paragraph 2 as well?).

its actually a pretty dumb question -- and one that walton is probably going to blow off -- or do what he did with the last note, and ask for clarification....

: June 23 v. July 12 (none / 0) (#27)
by Jeralyn on Fri Mar 02, 2007 at 06:09:27 PM EST

You're right. Marcy alerted me to it earlier and I corrected it. But, the instructions tell the jury that even though Miller is no longer part of the obstruction charge, they can consider Libby's testimony about their meetings and conversations in deciding as to the Russert and Cooper conversations that remain charged in the count.
I was thinking of the June 23 first meeting that Miller at first didn't remember, but it being one in which she says Scooter told her about Wilson's wife working for "the Bureau" which she took to mean "the Agency."

Jury Notes (none / 0) (#28)
by Bill Rudman on Fri Mar 02, 2007 at 08:33:56 PM EST

Thank you for the info on where to read the jury instructions. I wanted to read through the list of possible perjured statements.
On your comment #266 at firedoglake: I'm not sure both notes relate to the obstruction charge. It appears that note 2 was written out at 10:30 in the morning, but the time was crossed out and changed to 2 PM when submitted to the judge.

the questions (none / 0) (#29)
by diogenes on Fri Mar 02, 2007 at 08:35:34 PM EST

Interesting that no one here wonders whether maybe the jury is equally divided and trying to resolve a deadlock with these questions.

guilty on some counts, not guilt on others (none / 0) (#30)
by CarynTN on Fri Mar 02, 2007 at 09:40:27 PM EST

Ms. Merritt
I love your site. I have been reading it since before the Libby indictments in 2005 and have really appreciated all your smart, insightful analysis of the case.
I am not a lawyer and I have been wondering if the jury can come back with a guilty verdict on some counts but be hung on others?

: Reply to Caryn (none / 0) (#32)
by Jeralyn on Sat Mar 03, 2007 at 12:51:07 AM EST

Caryn asks:
bq. I am not a lawyer and I have been wondering if the jury can come back with a guilty verdict on some counts but be hung on others?
Yes. Then the Government would decide whether to retry him on the hung counts.

It's possible (none / 0) (#31)
by Che's Lounge on Sat Mar 03, 2007 at 12:01:07 AM EST

to have doubt about the evidence presented.

But it may not be reasonable.

: reasonable doubt can also arise (none / 0) (#34)
by Jeralyn on Sat Mar 03, 2007 at 09:03:23 AM EST

from the lack of evidence presented, that's in the reasonable doubt instruction.

The Ridiculousness of Libby's Argument (none / 0) (#35)
by Herman74 on Sat Mar 03, 2007 at 10:05:30 AM EST

Libby essentially argues (in Jeralyn's words):

"there is reasonable doubt because Fitz didn't prove that it was impossible for Libby not to have remembered an event."

BUT

Libby never answered, "I don't remember," but instead stated that Russert told him!

So, the point isn't so much about forgetting, as about "remembering" something that never happened in the first place!!! How could Tim Russert have told Libby anything about Joe Wilson's wife? How could Tim Russert possibly have known anything at all about her??? Who has testified telling Russert anything about Valerie Wilson?? No one, that's who!

Tim Russert has no reason to lie, either.

How often, dear readers, do you "remember" an event that never happened? What is your answer?

How often do you even recall specifics (being surprised to learn, as Libby claims he was) about that event? And even if you do remember something like, "I thought Sam told me, but it was Susan who told me," wasn't the whole matter an insignificant one to begin with, not one that you had at least nine conversations about?