Tuesday, March 06, 2007

The Runaway Jury?

It sounds like something out of a John Grisham novel: a jury appears headed for one verdict, only to stun the court--and the nation--when it reaches the opposite conclusion.

Of course, Grisham's book, The Runaway Jury, was a tale of jury manipulation, intrigue and double-cross in a fictional tobacco litigation case. By comparison, we may never know the machinations that took place during jury deliberations in the Lewis "Scooter" Libby case, which ended today with the panel finding the former Vice-Presidential aide guilty on four of five counts of perjury, lying to federal investigators and obstruction of justice.

History will record that Libby was originally accused of "outing" former CIA officer Valerie Plame. But Special Prosecutor Patrick Fitzgerald was unable to indict Libby--or anyone else--on that charge, because Ms. Plame, wife of Bush Administration critic Joe Wilson, was not a covert operative when her identity was revealed to columnist Robert Novak. We subsequently learned that Ms. Plame's affiliation was well known in Washington circles, and discussed by a number of power players, including Richard Armitage. But only Libby was indicted, and on charges relating to those favored prosecutorial catch-alls: perjury, lying under oath, and obstruction. Libby's attorneys blamed his changing story on a faulty memory. Court testimony revealed that other participants in the saga changed their recollections as well, but only Mr. Libby was in the dock.

Regrettably, all of this was lost on the jury, which may be remembered as one of the dimmest in recent federal court history. Only three hours before delivering their verdict, the panel sent a note to the judge, saying (essentially) that they couldn't figure out what Libby was accused of doing. I'm not an attorney, nor have I ever sat on a civilian jury. But I did cover criminal courts as a reporter, and it's not a stretch to say that today's verdict was stunning--not because of the jury's decision, but how they apparently arrived at it. As Fox News judicial analyst Andrew Napolitano noted, the Libby jury, on Day 10 of deliberations, was still asking questions it should have broached on Day One.

During my days as a reporter, I spent enough time in court houses to understand that funny things happen in jury rooms. It's a bit odd--perhaps incredible--to see how a jury can move from an elementary question about the charges to a guilty verdict on four of five counts, in the span of three hours. Perhaps the jurors were simply tired of deliberating. Maybe the foreman finally took charge of the process and convinced the other jurors that Mr. Libby was guilty of whatever he was accused of.

Over at Powerline, John Hinderaker says the handwriting was on the wall when the jury...

"came back with a question about whether the prosecution had to prove that it was "not humanly possible for someone not to recall" in order to prove Libby guilty. That, of course, is not the definition of "reasonable doubt," and the question suggested that a majority of the jury favored conviction, and was trying to overcome the objections of the minority who were applying a strict standard of proof."

Libby's attorneys are expected to appeal the verdict. I wish them well. The sentencing portion of the trial is scheduled for mid-May. I wouldn't be surprised if the judge in the case, Reggie B. Walton, sends Mr. Libby to jail. Meanwhile, former National Security Advisor Sandy Berger, who pleaded guilty to the (arguably) more serious charge of stealing classified documents from the National Archive, was sentenced to community service, a nominal fine, and loss of his security clearance for three years. You may recall that the Bush Justice Department recommended that the judge "go easy" on Mr. Berger. At the very least, they should extend the same courtesy to Scooter Libby.


One final thought: after my initial post, I caught one of the jurors on TV, speaking to reporters after the verdict was announced. He claimed the jury felt "sorry" for Mr. Libby, viewing him as a "fall guy" and wondering "where was Karl Rove?" That single soundbite confirms that the jury bought Mr. Fitzgerald's notion about some dark conspiracy to "out" Ms. Plame and discredit administration critics. From that, we can surmise that none of the jurors is eligible for Mensa membership, and Mr. Libby's attorney, Ted Wells, should have solid grounds for a planned appeal. As for why Mr. Rove wasn't indicted, the juror should direct that question to Mr. Fitzgerald, not members of the press.


Angevin13 said...

I'm surprised that you'd say Sandy Berger's crime is only arguably more serious than Libby's - there clearly is no comparison to what Berger did (steal classfied documents) and what Libby was charged with (perjury and obstruction in a case where there wasn't even a crime found to have been committed). If Libby had outted a clandestine officer or agent that's one thing, but he didn't. What Berger did was far worse and his sentence is a joke.

Anonymous said...

Your facts and inferences about the jury are incorrect. The jury did not send a note expression confusion regarding the crime charged, but rather seeking clarification regarding the meaning of the burden of proof and reasonable doubt. This likely was necessary to appease one or two holdout jurors. The suggestion of an about face, or something more sinister, is sheer nonsense. It is also ironic considering Libby was indicted for conspiracy related behavior -- yes, not the actual leaking (though I think your facts are wrong about why that is) but the cover-up. This is not unusual, it is quite often the case. Regardless of your political leanings, it is a federal crime to lie to a federal agent or to a grand jury. Its pretty straightforward. The memory loss defense apparently did not have a lot of traction, and personally seems pretty absurd. You might want to feel sorry for Libby for taking the hit for Cheney and Bush, but make no mistake -- he committed a crime. Plain and simple.