Victoria's Secret ~~ Libby Trial Deliberations: 3-1-07

firedoglake.com ^ | 3-1-07 | Empty Wheel

[STARWISE]

http://www.firedoglake.com/

Victoria’s Secret By emptywheel @ 6:58 am

The jury is starting another day of deliberations. No word yet on a verdict — you'll know as soon as we know. And in the meantime…

Also, yesterday afternoon (3:45) the jury asked for another post-it flip chart pad.

We would like another big Post-it pad. The large one for the easel.

Someone has been in too many business brainstorming sessions, I think. Jokes in the media room about "The Libby Trial, brought to you by Post-It."

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And a prosecutor takes a shot at Victoria Toensing for her WaPo article.

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Remember a few weeks ago, when Jim Marcinkowski challenged Ted Wells to put his punk on the stand –either one of them.

here:

http://www.firedoglake.com/2007/02/13/hey-come-on-put-your-punk-on-the-stand-2/

Well, it seems like Marcinkowski is a little bit irked that Wells didn't do so. Because he really lays the slapdown on Victoria Toensing in this post at No Quarter. He starts by reminding her (and who should have to remind Toensing of this, after her rants about Clinton?) that perjury is a crime.

Second, to allege that there first must be an underlying crime to bring a perjury charge is flat wrong, and every first-year law student knows it. Perjury is itself a crime, period. Under the Grand Jury system, evidence is presented to a panel.

If the panel decides that a crime was committed, then an indictment is issued. If not, the case ends. Either way, the evidence submitted must be the truth. You don’t get to lie to a Grand Jury. That’s pretty simple, unless of course you feel that one should be free to lie and suffer no consequence - hardly an argument that should be advanced by an attorney and officer of the court.

Marcinkowski then explains a few things about spying.

To assert that Valerie was not covert is to assert that the CIA operates public branch offices overseas. Victoria, here’s a news flash for you - there are a lot of people in this world that don’t like the United States in general and the CIA in particular. Anyone in the CIA traveling overseas would be as nuts as your op-ed to reveal that association. CIA officers and offices are placed all over the world. I really don’t recall the CIA crest adorning any office or being listed in any embassy directory. Victoria, the CIA is a spy agency, it is full of spies who spy on objects of interest to the United States. There are no non-covert spies.

To add a gloss of legitimacy, Ms. Toensing erroneously cites the law as requiring the covert agent to have had a “foreign assignment,” then concludes that Valerie was not “stationed” overseas.

Nice try. The law uses neither of these descriptions as a basis for defining the criminal act of disclosing the identity of a covert agent. The law only requires that the agent have served overseas within the preceding five years of his or her disclosure. CIA officers may very well serve overseas by meeting with secret sources in third countries.

The fact that they may be “stationed” or “assigned” to Washington, D.C. does not prohibit them from serving overseas by actually engaging in clandestine operations in other countries and returning thereafter to this country.

Would the purpose of the law designed to protect our agents operating overseas be served by distinguishing between the two scenarios? If so, then Ms. Toensing, who claims to have assisted the Senate Intelligence Committee in drafting the law, did a very lousy job.

And finally, he hits the right note of seriousness about a office of the court making false statements.

Rules of professional conduct for attorneys around the country make numerous references to truth telling both inside and outside the courtroom, e.g. “…an advocate must disclose the existence of perjury….” or, “…a lawyer shall not knowingly make a false statement of material fact or law to a third person…”

That about hits all the right notes, huh?

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[snarkytart]

Ref #35. Is a unanimous jury required in order to acquit?
___

Yes.

[xzins]

Thanks. See #60

[HardStarboard]

>>>To assert that Valerie was not covert is to assert that the CIA operates public branch offices overseas.<<<

This guy's credibility is zip. He ignores the fact, at the time Libby learned her name and that she was working for the CIA, Plame was driving in the front gate of Langley in her convertable every day and was doing "analyist" work, not "operative" work. Plame's Cia association was as plain as day!

[NoBullZone]

> I can understand a unanimous requirement to convict, but I don't see the unanimous requirement to acquit.

Well, for better or for worse, it is the law.

[NoBullZone]

His comment was a quote from firedoglake.

[xzins]

But, I fail to see any constitutional logic in it.

It's not as if the constitution spells out rights for prosecutors.

[the Real fifi]

On JOM they've gone around this question for years, and a poster known as Other Tom seems to have cracked it. Those who refer to her as "classified" or "covert" are relying on some old CIA terminology . Under the IIPA, the only Statute that would apply, she never met the test. So VIPS like the guy FDL relies on are playing them for fools--as they did the press. It is the legal definition crafted by Toensing that matters, everything else is horse puckey.

[STARWISE]

Oh boy ... fire, aim, ready .. LOL.


That's the content from firedoglake.com.

[Yo-Yo]

They are allowed to report a hung jury, so acquittal isn't the right terminology on my part, but they don't have to report a unanimous jury. If they're not unanimous, then Libby walks.

Yes, they are allowed to report a hung jury, but the judge does not have to accept a hung jury. He can tell them to deliberate some more, so you will never get a hung jury after only 1 or 2 days of deliboration.

Furhter, if the judge does accept a hung jury verdict, Scooter doesn't go free, he gets a second trial. Unless Fitzie chooses to drop the charges instead of trying the case a second time.

[MHGinTN]

Hmmm, I feel like Algore checking that gun barrel ...

[CutePuppy]

Here's my take on it, from yesterday's thread on this jury's withdrawn question/request to the judge :

http://www.freerepublic.com/focus/f-news/1792879/posts?page=43#43

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...
3. It may seem counterintuitive, but the fact that they're asking the judge about this trivial issue may mean that
they're likely divided on all other counts or, at least if they go sequentially, as the writer of this piece thinks they may, they couldn't come up with unanimous "guilty" decision on these first two counts, at least not yet...

Unless, of course, all of them are extremely thorough and/or anticipate that the "guilty" verdict on some counts can be overturned, there's no need to get all tied up on this one really silly request (which they confirmed by ultimately resolving it themselves and apologizing to the judge, who couldn't understand the request).

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[CutePuppy]

If we have a jury that is 11-1 in favor of Libby's innocence, then it is definitely reasonable that he is innocent and should be acquitted. (10-1 now that one juror is lost.)

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The reason for unanimity requirement is that one can say the same about the opposite, i.e. :

"If we have a jury that is 11-1 in favor of Libby's guilt, then it is definitely reasonable that he is guilty and should be convicted. (10-1 now that one juror is lost.)"

I am sure you can see logic in that. Now we, as a nation, might decide to make the laws favoring the defendant in the way you described (11:1, 10:2...), but that isn't the law now.

Often, judge has the authority to do a public count of "nays" and "yays" when the jury is hung, to get a sense of how closely the jury is split so he can recommend or order them to continue deliberations - which then for all intents and purposes will count in the "court of public opinion", but this being an obvious case of political show trial by Fitzgerald and media I don't think it would serve that purpose as such anyway.

[AmishDude]

My theory is that they don't have a guilty conviction yet. If they had at least 1, they would have petitioned the judge for a hung jury on the remaining counts.

I could be completely wrong, but it's based on the premise that a majority of jurors want to get out ASAP and those predisposed to conviction will not count the number of angels on the head of a pin, one conviction is enough.

[xzins]

Yes, but we have a presumption of innocense. And we have constitution that requires a conviction to be guilty.

The presumption of innocense would automatically in my mind mean that a jury of 11-1 in favor of acquittal would mean that the presumed innocent, non-convicted person is 'acquitted.'

[AmishDude]

One of the big reasons is that in the US we have no double jeopardy. So once somebody is acquitted, it's forever.

[CutePuppy]

Yes, but we have a presumption of innocense.

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Right, presumption of innocence means rules of law governing rights of indicted BEFORE the trial, and right to a trial, not the OUTCOME of the trial. Jury then decides if he's "guilty", "innocent', "not guilty" (by reasons of...) or jury cannot come to a unanimous conclusion based on evidence presented in court.

For all practical purposes, 11:1 sets the person on trial free, and only allows the prosecutor's office (in this case DoJ) to retry a case if he feels he was not able to present certain evidence or that the jury was prejudicial or couldn't understand the case... none of which I see here.

So the point of declaring a 11:1 or 10:2 jury in favor of defendant an "innocence" would really defeat the purpose of the trial. The only redress the "state"/"government" has after that is to retry with new evidence or testimony - which in this case is inexistent.

In other words, Fitz has shot all he had, got all the favorable rulings and if he can't make this one stick in DC, he's sooooo over.

[Steve_Seattle]

"I just cannot figure out what's taking so long; that alone gives me hope that they are arguing about something."

I think it is a bad sign. I read the statements that are the basis of the charges, and it is appalling that charges could be brought on testimony that is so meandering and hesitant and inconsequential. The testimony of virtually every prosecution witness was riddled with inconsistencies, second-takes, changes, hesitations, and major memory lapses.

To take Russert alone, he couldn't remember writing a letter to a TV station defending his performance as a debate moderator; he couldn't remember being on the Today show; he couldn't remember being on Imus; he couldn't remember joking about Santa Claus/Fitzmas; he couldn't remember grand jury regulations that he had explained to national television audiences. He couldn't remember ANYTHING. But he was damned sure he never mentioned Valerie Plame to Scooter Libby. That is the only certainty in his life.

[STARWISE]

Empty wheel, still passing the time with tech problems and flights of fancy; but plumbing overflows from bathrooms into the cafeteria. That's courtroom drama.

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Pachacutec Talks emptywheel Off a Ledge
By emptywheel @ 11:35 am



Real courtroom drama today. After we decided we weren't going to call a press conference on the steps of the Prettyman Courthouse to name the winner of the media room deliberation pool, Pach and I had our own little drama.

You see, I lost internet access. Everyone else in the media room, they were tapping away happily, surfing car sites, cheap malaria drug sites, maybe even some (gasp) news. Pach even got a proposal mostly written. But me, I just rebooted, turned off the Internet, turned it back on. "I brought my laptop cord today! And you're telling me I still don't have Internet access!?!?!"

I'm not so patient normally–just ask mr. emptywheel. Even less patient when I don't have a book in front of me (yup, I stupidly decided to leave the book at home). But when they take my Toobz away?

Luckily, we have Pach, a trained professional, on hand and he recognized the ledge-like symptoms even while ensconced in his proposal at the back of the room. It was an early lunch for the FDL crew, with my laptop safely asleep back in the media room.

Pach even got carrots and celery–something crunchy I could work my energy out on. He somehow managed to get me talking about the most challenging wedding I ever attended, in Western South Carolina just days before the 2004 elections.

Just a few rants about my brothers-in-law attempts to avoid blaspheming in the Baptist Church. They're Irish, you see, and it's hard for them to avoid saying "jesusmaryandjoseph" under the best circumstances, much less in a dry wedding in a strange country (that's the US, the strange country). I didn't even get into my rant about the Amway/Quickstar people at the wedding before lunch was over.

First you distract them, then you get treatment. It was a dramatic moment, when I turned the laptop back on after lunch. Holding my breath. Gasp. Ahhh. We're back on the Toobz.

Hey guys, good to see you again.

Update from the courtroom–there's a flood in the cafeteria. And the jury had salad sent in for lunch.

And the real story–apparently they've been getting cookies every day as an afternoon snack. If we just cut the jury off their cookie supply, I'm pretty sure we'd see a verdict quickly.

Update: The flood in the cafeteria is coming from the bathrooms next door.

Media room erupts in bad toilet puns.

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The time the jury's taking leads me to think there's division .. why should they be different?

[greyfoxx39]

Updates much appreciated, STARWISE.

[Txsleuth]

I think if they don't have this thing figured out by tomorrow afternoon...the judge should sequester them over the weekend.