March 5, 2007

"'Humanly possible' is just a nebulous term, and I don't know exactly what it means."

The judge in the Libby case refuses to answer the question the jury asked. Remember, we puzzled over the question here. I wrote:
"Is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event?"...

The question suggests that the jurors might be stumped about whether than can convict even though a juror keeps saying something like: But, of course, it's possible to forget anything. This would be an argument against convicting based on the evidence that demonstrated the importance of what Libby contends he forgot.

This question might mean that they are arguing about how high the standard of reasonable doubt really is. But there is also concern about the kind of proof that is required. Is it enough to simply show that the thing allegedly forgotten was extremely memorable, so that the jurors have to make an inference that he is therefore lying? Someone may be demanding that there should be evidence about the mechanism of forgetting.

I would think that the correct answer about the quantity and quality of the evidence needed would tend to make a jury that would ask the question that way likely to convict.
So, now I suppose I have to say that the judge's refusal to give an answer decreases the likelihood that the jury will convict. Do you agree?

38 comments:

reality check said...

My guess is they convict Joe Wilson.

Bob said...

I tend to agree, but my own prediction can be found here.

Mike said...

That would be justice, RC.

peter hoh said...

I concur. That's just the gut feeling of a mind unschooled in law, but I've read a lot of newspapers in my day.

StephenB said...

Like peter noh, I am unschooled in law, but I nevertheless think you're bang on. That the jury asked the question in the first place shows that are unlikely to convict. The judge's denying them an answer only strengthens that unlikelihood...in my humble opinion.

Flexo said...

It is rather standard operating procedure for a judge to refuse to answer a jury question, either explicitly or by merely restating the prior instructions (which is the same thing as refusing to answer).

I don't know what the jury is going to do (every jury trial is a throw of the dice), but I do think that the case is riddled with reversible error, not the least of which is the judge effectively amending the indictment after the evidence was in by refusing to give the indictment (the actual charges) to the jury and instead giving his own characterization of the charges.

peter hoh said...

I want to add that I am impressed that the judge declined to answer. In giving an answer, he would have placed himself in a position to sway the verdict, which is not the proper role for a judge, as I see it.

It's not that the question shouldn't be raised or answered, but that it would be hard to craft an impartial answer, given the circumstances.

reality check said...

I don't know, but it's been said
Libby's defense is made of lead

I don't know, but I've been told
Fitzgerald's case is made of gold

Fitz said...

Yes...

A question like that suggests the Jury is thinking "hell, he just cant remember x,y, or z" - thats NOT the same as lying..

Jim O'Sullivan said...

I've seem some dumb juries in my 25 years as a lawyer. I mean, people to stupid to follow simple instructions like: if your answer to this question is "yes," don't answer the rest of the questions, just go tell the judge you answered "yes." You'd be surprised how many groups of citizens selected from sources like voter registration lists are confounded by such simple directions.
This jury, at least, seems to know it's stupid and is apparently trying to overcompensate.

CapnDick said...

Is it "humanly possible" that Hillary Clinton in her testimony about the Vince Foster affair did not recall anything? Nothing was made of that in the MSM or elsewhere that I can recall. Joseph Wilson wrote in the NYT that he had heard nothing of Iraq trying to buy yellow cake after he had reported to the contrary to the CIA. Just a memory lapse? His wife was not covert and he had to know it yet he said she was outed. Another memory lapse?

NSC said...

It's the memory thing. One or more jurors are saying it is possible to forget stuff like this - even vitally important stuff - and are not willing to convict someone over what might be a bad memory. Don't know how the judge not answering impacts on it, but I say a hung jury or not guilty will be the result.

Fitz said...

"Humanly possible" is a rather low standard...I think it says it all, as to what the jury was thinking.

(not that anyone really know)

billo said...

Jim:

In my 20 years as an expert witness (I'm a Medical Examiner), I've generally been pretty impressed by juries. They aren't lawyers, but they take their jobs seriously. On those rare occasions where the jury has been able to ask me questions directly, they have shown they were following the testimony closely. It wasn't their failure to understand that was they problem; it was my failure to explain things clearly.

Fen said...

possible to forget stuff like this - even vitally important stuff

Not sure how vital it really was to him, considering all the more important things he does daily. Not trying to be snarky, just saying the memory was likely stored alongside what he ate for lunch that afternoon.

stoqboy said...

I do know, for I have seen
the sky in my world is bright green!

Brian said...

If you're schooled in life, then you're schooled in the law. It's not nuclear physics.

Fritz said...

I would have to convict on all 5 counts or none, there is no way around it. The government's case is motivation. If he lied about Russert, what difference does it make what he claims to have said to Cooper, Miller or anyone else. Fitzgerald is convinced that the OVP misused the press and thus any story that does not fit with that line is perjury.

StephenB said...

Brian said...

If you're schooled in life, then you're schooled in the law. It's not nuclear physics.

Then to hell with these law school admission letters, admit me to the bar.

Richard Dolan said...

Nine days of deliberations, and now at least one juror has gotten all tied up in knots about "reasonable doubt." (Juror notes like this are more often an effort to answer some concern being voiced by one or two jurors; there is no reason to think the entire panel shares the concern.) The choices, and the issues, facing the jury aren't very difficult. "Reasonable doubt," as defined in the standard jury instruction, is also basically a matter of common sense. And the vagaries of human memory (as well as the point at which "I didn't recall" is another way of saying "I'm not telling you") are the sort of thing that jurors ought to understand instinctively.

Hard to imagine what they've been talking about for nine days. If I were Libby's lawyer, though, I would think that a hung jury may be the likeliest result at this stage. Presumably, we'll all know soon enough.

Mortimer Brezny said...

So, now I suppose I have to say that the judge's refusal to give an answer decreases the likelihood that the jury will convict. Do you agree?

Yes! Whoever is stuck will remain so.

Simon said...

Brian said...
"If you're schooled in life, then you're schooled in the law. It's not nuclear physics."

I'd say it's more complex than that. Nuclear physics is ultimately premised on logical and regular rules; your inability to understand it has nothing to do with the rules themselves being incoherent, but rather, it has to do with our inability to correctly understand the rules. Law, on the other hand, is not necessarily anchored to reason, and there are several areas of doctrine that I've find quite counterintuitive and very difficult to grasp. Try explaining sovereign immunity doctrine, for example, with all its myriad twists, turns and fictions, to a layperson! (When you give up, give them a copy of our esteemed Hostess' essays When to Believe a Legal Fiction and The Alden Trilogy, which is what finally broke the dam for me).

Curtiss said...

"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."

That’s the question. Based on my own jury experience, It seems to me that there are one or more hold-outs on the jury who won’t vote to convict because the government did not present “evidence that it is not humanly possible” that Libby did not recall certain events. If the hold-outs are really stubborn, it looks like a hung jury. Jury dynamics and herd mentality are hard to figure. We’ll know the answer in the fullness of time.

Pogo said...

Fitzgerald has followed the IRS in its ability to ensare anyone at any time with a crime.

The uncertainty about whether one can be absolutely certain that you are not committing a crime (rather than breaking a procedural rule) is an insidious evil. I doubt any citizen can be safe from such broad prosecutions. Worse, I defy anyone to explain to me what exactly Libby is really supposed to have done and why the average person would think this was some kind of crime.

It's crap masquerading as law. It's a KGB tactic, truly kafkaesque. You can be charged with a crime at a whim. Why people who love the law aren't horrified by these prosecutions is beyond me.

Cedarford said...

So, now I suppose I have to say that the judge's refusal to give an answer decreases the likelihood that the jury will convict. Do you agree?

Yes. If we begin to criminalize people in non-crimes on the presumption that must answer with perfect memory to Federal investigators you all but guarantee jury nullification will pick up and that people will refuse to ever talk to Feds unless they have a lawyer who will lawyer them up so no answer exposes them to danger of prosecution if their memories or timelines are in doubt.

******************
My guess is they convict Joe Wilson.

That would be true justice. Not the persecution of people for answers they gave to a non-crime or locking up journalists and drying up sources for what the prosecutor knows was a case where ho law was violated...

-Yet-

A significant menace to the 1st Amendment. I agree that the 1st does not protect covering up a crime, but Fitzpatrick knew on the 2nd day of his investigation who the source was (Armitage came forward) and that no crime was committed (CIA told him that Plame was not a covert agent for over 5 years, exempting her from the law protecting undercover operatives).

IF there was any justice, Joe Wilson should be in jail for using nepotic connections to politicize the CIA and advance his personal ambitions. If anyone "outed" Plame, his efforts in worldwide media assured who pulled strings to get a DEm Partisan on an African junket would come out.

And if there was justice, Fitzpatrick deserves a letter from the Bar asking him to attend a disciplinary hearing on charges of Rampant Nifongery.

This has always been a partisan witch hunt, facilitated by a Bush-hating media that inadvertently destroyed past 1st Amendment protections in the crusade to "get the neocons, no matter what!"

M. Simon said...

Fitzgerald will be convicted and the Judge will be carried on the books as an unindicted co-conspirator.

Comrade X said...

The question seems to be from someone trying to convince someone else to convict, and is phrased rather immaturely. Good on the judge for refusing to play.

reality check said...
This comment has been removed by the author.
reality check said...

The market says he is going to Federal PMITA Prison: Intrade Prediction Machine (Libby.Guilty.Lying) (Libby, not Wilson or Fitz)

That is, unless the Pretzeldent pardons him.

I know we're talking about a man's life in the balance, but um, anyone want to get in on some action regarding this?

Tell
me the odds you want, and leave an email address and we'll discuss it.
I figure you guys should be easy pickens, and I could use a nice hdtv
screen.

Sorry, jes kidding wingnuts, I don't screw around and exploit other peoples' lives like you do.

Flexo said...

The jury has more questions today (Monday).

M. Simon said...

The contract peaked at 85 against Libby near the end of the trial and is now trading around 70.

That says the odds are about 5 to 2 against Libby. And moving in Libby's favor every day.

It depends how strong the hold outs are.

Flexo said...

From reading the coverage over at Talk Left, one thing is very clear -- this trial has descended into one big cluster f*ck. Everyone -- from the lawyers to the judge to the jurors to the media -- is all twisted up in knots and no one can make sense of any of it.

francis said...

As I write this, the day has ended, and another question from the jury is pending. The pair of questions may be an ominous harbinger of a conviction-minded jury. What most of us don't know is what the jury instructions say--they would be important context for the first question--and what portions of the grand jury testimony were introduced at trial--which would help understand what the jury's getting at with the second question. But if I were Scooter Libby, I don't think I'd be relaxing over drinks right now.

reality check said...

They are getting details on how a jury can indict Plame and Wilson based on Cedarford's new theories.

reality check said...

Apparently, the jury is pissed to find out that Plame wasn't covert and that Wilson and Plame conjured the whole thing up.

hdhouse said...

having served on 2 juries with "giving false statements" was involved...the question is really bad for libby...

the guy is smart. he forgot a whole lot of things ... ordinary people may forget a few times but not over and over and especially when called upon to "remember" .. he should have scratched his memory a lot harder...and i think what the jury is struggling with is, if you can forget 2-3 times something salient, what if you forget 5-6 times...is there a number of times you can forget something and still be viable?

Sloanasaurus said...

I still believe that the jury is probably made up of people with political interests meaning there are liberals on the panel that refuse to give up without a conviction and conservatives that refuse to yield to this show monkey communist trial. Hmm... that would reflect America as whole, which means its probably not a good idea to have political trials like this in America. If you want to convict someone in the political arena and you don't have them lying on camera, catch them doing something actually illegal that doesn't require partisan journalists to help make your case.

Prediction: A hung jury.

Remember the mantra of the left:

"Fake, but accurate."

vnjagvet said...

Who's a wingnut? Who's got a corner on reality? Reality Check!