The Daily Background

Well, it’s the weekend, which means that the jury deliberating the Libby trial isn’t in session. On Friday, we learned several things however, with the appearance of two new jury notes which Judge Walton plans to address on Monday when the jury convenes again to continue what will be its 9th day of deliberations. And that’s not all: unusual comments from the the judge in the case are also raising eyebrows.

One note from the jury revolved around a technical matter of which sections of testimony jurors were supposed to consider for a certain count. It was the other note though, that made more headlines. Here’s the more interesting note:

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.

(Hat tip to Firedoglake for providing the text transcript.)

The issue of reasonable doubt; what’s reasonable and what’s unreasonable is both crucial in this case, and often difficult for jurors to pin down. What’s reasonable doubt to one juror– the chance that Libby could have within reason not committed obstruction of justice, perjury and made false statements to federal investigators– might not be reasonable doubt to another.

Christy Hardin Smith of FDL (who used to be a prosecutor), who has been blogging about the trial from inside and outside the courtroom, has this to say:

You almost always get to a point where the jury has a question about reasonable doubt. This is because most jurors get to a point in their deliberations where their mind goes “holy crap! I may be putting another human being in jail. What if I’m wrong to do so? What if I let this guy go and he commits some other crime — how will I live with myself? Arrrgg, the pressure…I just want to do the right thing.”

To me, it seems like if the jury is considering the matter of reasonable doubt, it means they are not moving in the direction of acquittal. It’d be obvious (to them at least) that their doubts were reasonable if they were going to acquit at this point. Asking about reasonable doubt right now seems to me like they are saying “okay, with what we know right now, we’d call him guilty [on some or all counts], but let’s just make sure that we’re doing this the right way here.” If they were planning to acquit on all charges, we wouldn’t even be talking about reasonable doubt right now.

On a side note, there sure have been a lot of notes in this case. Maybe not a ton, but they’ve been really thoughtful ones. Everything points to this jury doing a really thoughtful, careful job here of examining the facts, making sure they understand who said what, and making an effort to understand all the legal jargon involved and everything. Which seems bad for the defense, since as many others have pointed out, theirs was largely an emotional appeal based less on facts and more on conjecture about how busy or forgetful Libby may have been.

I say conjecture, because Libby has not even taken the stand to say how bad his memory is. Which brings us to the judge’s comments on Friday. Reports CNN:

The judge in the criminal trial of Lewis “Scooter” Libby is making it clear for the historic record that he thought the defendant would take the stand, and that the presumption figured strongly into his decisions about classified material he would have allowed into evidence.

He also suggests the defense could have improved the prospects for acquittal of their client had they called Vice President Dick Cheney to the stand.
[…]
Although somewhat unusual, the written record elaborating on bench discussions may help an appeals court explore his decisions should any jury verdict be challenged.

Verrrry interesting. Especially the unusual speculation: “He also suggests the defense could have improved the prospects for acquittal of their client had they called Vice President Dick Cheney to the stand.” How often do you get a judge essentially saying, before a verdict is even returned, “you know, if the defense team had just done things differently, they would probably be in a better situation right now”? There’s something to think about.

Filed under: Plame Leak, Z-TDB Blog