Judge on the bench in Libby trial--Lawyers arguing about

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how the Judge should respond to the "reasonable doubt" question posed on Friday.

www.firedoglake.com

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1. so far, I like the Judges response---

Walton in.

Walton: I received what you all proposed I should say. I think I'd be inclined to deviate somewhat from what both parties are requesting and tell the jury that the instruction that was given to them regarding reasonable doubt fully explains what that concept means and tell them that they need to go back and review in its entirety and reevaluate what I told them in their assessment of reasonable doubt. It is my belief that is what is contained in what I presented to them, what the govt's obligation is in satisfying reasonable doubt. I don't think I'd be inclined to indicate what the govt is requesting, because I'm not sure what they're asking. If the govt has to prove guilt beyond all doubt, then I'd say no, and I have some concerns about responding in the way the govt has suggested. I'd be inclined to say that I don't fully understand what they're saying. Any comments.

Bonamici: The govt's request is merely that the court address the specific language the jury used. THe govt would object to directing them to the previous instructions.

Walton: I don't know what they're asking me. There was a situation where a woman's car fell on a child, it wouldn't be humanly possible that she pick up the car, but she did. I don't know what they're asking. I don't know whether they're asking whether govt has to prove guilt beyond all doubt.

Bonamici: What the govt has proposed is that your HOnor instruct the jury that the govt doesn't have to prove beyond human possibly–use their language so we're not injecting any language into it. We assume the jury has already read the instructions. Merely re-reading this back to them is not answering the question. If the defense had argued that the jury must acquit if it is humanly possible that the Defendant did not recall these events, we would have objected and the court would have provided a supplemental instruction. If the jury is believing that this is the statement of the law, then they need guidance.

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2. 9:21

9:21

Walton: In reference to the second question, the govt provides additional locations.

Wells: what the govt is trying to do, we submit, is to expand the charging language in cout one, to make it track the far more expansive language in count five. What they've provided your honor is the pages that track count five, which is a lot longer. The language we have provided is the language in the indictment. If you look at what the GJ charged, it charged there were three false statements that comprised the instruction. This is what the GJ charged. That Libby advised Cooper on July 12, that other reporters were saying that Wilson's wife worked at the CIA and Libby didn't know whether this statement was true. That is what the preliminary instructions tracked, You can't do what the govt is asking, the govt is asking you to amend count one to pick up the charging language from count five. They can't collapse the perjury charge, which is from their indictment. THey can't convert a limited concise statement in count one to a more expansive statement in count five. That's what they are trying to do. That would be inappropriate. The govt should not give them anything beyond what's in the indictment.

Fitz: we couldn't disagree more. Perjury is the more specific count. The obstruction count includes language about the GJ. It generally says he obstructed the GJ, then it says, it was part of the obstruction that defendant made the following false statements. Then it goes on paragraph 33, to say that at the time of the statement he knew it was false. The sections we have provided are all about these issues. The obstruction is more general than the perjury charge.

Walton: I might agree with you that if there were passages that specifically relate to Cooper.

Fitz: That's what they are.

Walton If they're just general statements regarding Valerie Wilson. They've specifically requestion guidance on Cooper.

Fitz: these do relate to convesations with Cooper. I could walk you though it. March 5, page 184, we suggested line 23, what did you tell Matthew Cooper. It's a description of the Matthew Cooper conversation.

Walton:

9:29

Fitz: When your Honor indicates that you've read that I can move onto the second transcript. March 24, govt exhibit 2, page 116, line 18 through 117 line 10, and again it's specifically about the Cooper conversation. It starts quote, when you told Cooper that the reporters were saying, who were the reporters you were referring to?



Fitz: 128 line 1, he states that when he heard it from Russert and Rove he didn't think it was classified. And when I talked to reporters, he said, "I don't know if it's true."

Walton: Where's he make specific reference to Cooper?

Fitz: I realize it's the next one, 182. Two more sections, 182 line 14. It's the same. Uniformly telling reporters he didn't know whether it was true. He says every reporter he told that Wilson's wife works at the CIA, the section about the Russert answer, 191, line 22. It goes to the following page, that's the one where he's asked about Russert and he mentions Cooper. The question was asked by the GJ, if he thought it wasn't classified, why was he so careful. Among one of the things we didn't know that he had a wife. They go directly to the question of Libby telling Cooper that he didn't know about the wife. Given that their question is what they should evaluate, we think this is a fair response.

Walton: I'd agree that the defense language is too restrictive. My concern is that the jury be instructed in such a way that they understand that these passages relate to Cooper, that it would be appropriate to consider anything he would have said before the GJ that relates to his conversation with Cooper.

Wells: Maybe we're getting back to the issue of what is meant by the question. If what is meant by the question–they're trying to figure out what is the charge.

Walton: They're asking where in the transcript where he made the statements that amount to obstruction.

Wells: I agree with that, if that is the question they cannot go beyond what is charged in the indictment.

Walton: the govt did not say there was only one passage they were referring to.

more....

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3. 10:38

.........



10:38

Libby and Jeffress still chatting. Libby shifting uncomfortably. Jeffess looks calming.

Now Libby's laughing with one of the Associates.

I can see David Corn gesticulating wildly holding forth with other journalists in the court room.

Now Jeffress has joined the laughing Libby. Wells still blackberrying (hey Ted! You reading along??–waves). And the prosecution is still huddling.

We just got the language in. Jeffress reviews, Now Fitz reviews. We're going to have a little chat. (Walton is not in the courtroom–it is just Team Libby and Team Fitz discussing at this point.) One of the Defense associates ran over to join the huddle, and Libby tried to walk over there, but got headed off. someone stopped him to occupy him with a chat.

http://www.firedoglake.com/2007/03/05/two-questions-part-two/#comments

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4. Walton in.

10:49

Well, Defense must have been happy. Wells is back to his blackberry. Prosecution seems to be out of their huddle. We seem to bewaiting for Walton.

Walton in.

Fitz: Thank you for your indulgence. Where it now says, I do not understand what you're asking me, we'd change it to "I do not understand what you mean by humanly possible." If they said not to a scientific certainly. If we don't tell the jury what's unclear, we have little chance to have them clarify such that we ca understand. We should clue the jury into where the ambiguity is.

Jeffress: I think this is going to be absolutely clear to the jury. You've said I don't understand what you mean. In a way it's nitpicking for the govt to want to clarify this. We think this is perfectly clear to the jury and good to go as it is.

Walton: I'll make the suggested change.

(Whooooooo Hooooooo!!)

http://www.firedoglake.com/2007/03/05/two-questions-part-two/#comments

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5. Jury now has both replies.

Now we hurry up and wait.

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6. I love what a poster called "litigatormom" wrote (post #21 at that link)

I hope she wouldn't mind if I quote this in full:

Re: the definition of “humanly possible”

Perhaps this is what is troubling them. It is not humanely possible for:

a man to become President of the United States having lost the popular vote, and having won an electoral victory only because the Supreme Court stopped a recount in a disputed state;

to then have that President, who campaigned as a uniter not a divider, proceed to govern as if he’s won a popular and electoral landslide;

to then have that President’s national security advisor ignore warnings from the CIA of an imminent terrorist attack against US interests at home or abroad;

to then have that President tell a CIA briefer “okay, you’ve covered your ass, now” when read a daily brief indicating that Osama bin Laden was determined to strike within the United States;

to then have that Presidet react to news of the terrorist attack by first continuing to read “The Pet Goat” and then fly all over the country looking for an undisclosed location safe enough to hide in;

to then address the nation looking like a small frightened mammal;

to then launch an invasion of the country that gave bin Laden safe haven only to pull out our troops prematurely so that he could pursue a war against a country that did not give bin Laden safe haven;

to mislead the nation into believing that the nation we were about to invade had WMD and imminent nuclear capability, ignoring intelligence that contradicting or undermined these claims;

to then ignore the advice of military commanders about troop levels, and the advice of his Secretary of State, about building a true international consensus;

to then fail to plan for the post-invasion occupation of Iraq, allowing chaos to ensue;

to pretend that an growing insurgency was just a bunch of dead-enders;

to permit an incompetent Secretary of Defense to continue perpetrating his incompetence as to the war for more than three years before finally firing him;

to refuse to engage Iran and Syria on Middle East peace, and to instead enter into a game of chicken with Iran;

to win a second-term by vilifying a decorated war hero, deflecting inquiries into his spotty military service as an AWOL National Guardsman;

to refuse the lifeline offered to him by the Iraq Study Group;

to react to a stinging mid-term electoral debacle reflecting enormous anti-war sentiment by increasing our military commitment in Iraq; and

generate the most virulent, widespread anti-Americanism even within our traditional allies.

None of that is “humanely possible.” But it happened.