March 3, 2007

"Is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event?"

So asked the jury in the Libby case, seeking a clarification from the judge about the meaning of reasonable doubt. They've been deliberating since February 22. Can anyone pick apart that question and tell what it means?

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. Do you agree?

50 comments:

MikeinSC said...

I think Fitz just put up a really, really weak case. You're not going to be able to prove, beyond a reasonable doubt, any of the charges.

Then you have to deal with the different treatment of people for doing the same thing.

Then the problem of why was there an investigation when the person who leaked Plame's name was known very early on.

Fitzgerald showed the inherent problem of "special prosecutors". They have to produce SOMETHING to justify their existence.
-=Mike

yetanotherjohn said...

Perhaps its my own bias, but I read this as likely to result in a not guilty verdict or a hung jury.

For the government (aka the prosecution) to make their case, they have to show that Libby did not forget the event. Not that he knew at one time, but that he always knew. So to convict, the prosecutor would have to show that it was not possible for someone to not recall an event.

This means at least one juror does not think the government has shown the event was not forgoten by Libby. If they are arguing on that level, then it is likely to be hard to get consensus for a conviction.

We shall see what we shall see.

CB said...

I think the full question makes it a little clearer:

"We would like clarification of the term 'reasonable doubt,' " the note 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?"

My first impression is that the answer is "no." It seems to me that the whole point of the "beyond a reasonable doubt" standard is that the government can not, and should not have to, show that a proffered defense is "not humanly possible."

MikeinSC said...

That seems to be an incorrect impression.

The government has to prove that Libby intentionally lied and did not forget.

The government has a HIGH level of evidence to obtain a conviction and I do not feel they have come remotely close.
-=Mike

Tony Almudevar said...

"Is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event?"

No one could ever present such evidence, but people are convicted of lying, so the answer must be no. The only possible consequence of a simple 'no' answer from the judge would be to suggest conviction.

The question sounds very contrived, as though the jury wants to convict, can't quite, and so is looking for a push from the judge. If this is true, I would hope that the judge, in addition to saying no, makes clear what standard is required.

Anyway, that's what it looks like to my untrained eye.

CB said...

To follow up...

If D is charged with first-degree murder for shooting V, and his defense is that the shooting was accidental, the state does not have to present evidence that it was not humanly possible for D to accidentally shoot V.

The state presents evidence that it was premeditated, D presents evidence that it was accidental, the jury weighs the evidence, considering D's credibility, and decides.

Old Dad said...

I'd lean toward hung.

Here's a scenario. Stubborn holdout(s)for acquittal argue that it's entirely plausible that Libby could have forgotten. Stubborn holdout(s) for conviction argue that the event was far too momentous to easily be forgotten. Pro acquittals get tired of the arguing and attempt to shore up their case with a gambit. Fitz did not and could not prove that Libby couldn't have forgotten.

Regardless of the answer, it will not change anyone's mind because it's entirely plausible and not provable that Libby forgot, and that Libby lied. I see lot's of room for reasonable doubt.

vnjagvet said...

It is difficult conclude anything from this question unless you know whether the question comes from one juror or is a question all twelve jurors are struggling with.

In any event, I believe it will take creativity on Judge Walton's part to prevent a hung jury on some counts.

Flexo said...

We would like clarification of the term "reasonable doubt." Specifically, is it necessary for the government to present evidence . . .

First of all, it is clear that they are confusing and merging the concepts of "reasonable doubt" and the "burden of proof."

evidence that it is not humanly possible for someone not to recall an event

Next, the use of the double negative creates an ambiguity, so it is unclear as to exactly what they are asking.

in order to find guilt beyond a reasonable doubt?

The problem with this is that merely finding guilt beyond a reasonable doubt is not what the jury is tasked to do. Rather, what the jury is supposed to do is to find or not find whether guilt has been proven beyond a reasonable doubt. Moreover, the "in order to find" language sounds as if the jury, far from starting from the presumption of innocence, has started from a "feeling" of guilt (or a desire for guilt) and is looking to justify a finding of guilt.

In any event, it is my observation that, for many juries, the presumption of innocence goes right out the window the first ten seconds of the trial, and jurors instead proceed from a neutral position (which stems from a false conception of fairness). Then, when it gets to the question of guilt, instead of asking themselves, "did the government prove it's case beyond a reasonable doubt?" the jurors wrongly and subjectively ask, "do I think he's guilty?" and whatever nagging doubts they might have are shoved aside since no one will ever be able to answer that philosophical question of what is a "reasonable" doubt and what is an "unreasonable" doubt.

Bissage said...

Someone's trying to convince someone they're holding the prosecution to an improperly high standard.

That's not what Libby's looking for.

Cedarford said...

Jurors know that people forget things, sometimes even important things. And they also know it it common for someone to recall an event, but place that event in a wholly wrong sequence of events in time and confuse the source. (I remember vividly all the news about Lady Diana's death and the month, but as an exercise, I tried to remember the year and the source. I thought it was 1999. That was wrong. I thought my wife told me. She did not. It was our neighbor, she reminded me..)

With Libby, jurors are asked if it is possible beyond a reasonable doubt that he wasn't too busy with many matters as the VP's CHief of Staff, and buzz that Wilson's wife was CIA and who told who when was so important he couldn't fail to remember.

It sounds like one or more jurors seeking to convict are questioning jurors seeking acquittal about what constitutes reasonable doubt.

Is it credible Libby could have forgotten? Obviously, he would be credible if he said he had forgotten and had no clue what he had for lunch on Apr 13, 2004. Obviously, he would not be credible if he claims he forgot that a jet hit the Pentagon in 2001 - but likely might if he read and forgot who the Islamoid hijacker behind the controls of that plane in that vivid event, was.

Where Plame exists in the continuum of memory between a lunch years ago and a plane's blowing up the Pentagon, insofar as Libby's memory and credibility goes is a memory item that would bedevil me if I was trying to determine reasonable doubt.

Then again, I have a strong aversion to Feds prosecuting people for any sort of hemming and hawing or any statement they make in investigating a crime that turns out to never have happened. Especially when the Feds knew when they interviewed people that no crime had happened.

gj said...

I'd translate the question as, "does the government have to show it is impossible to forget something?"

I think this indicates that most jurors want to convict, but one is having problems with the "reasonable doubt" standard, and is likely the kind of person who would say, "well, anything is possible." That would indicate a possible conviction or hung jury.

johnstodder said...

Ann (and Bissage), I tend to agree with you. The question has an edge of hyperbole to it. Of course if someone says to you "I forgot," no one can provide concrete evidence that they didn't forget, short of a memo written five minutes before the FBI interview in which the supposedly forgotten thing is recalled in detail.

My experience tells me that on these sorts of questions, the jury gives the prosecution the benefit of the doubt, and is unwilling to hold the prosecution to a standard so high that a case could not be proven under almost any circumstances.

Gerry said...

It makes me think the majority wants to convict, and a minority (perhaps of just one) is saying no, and the majority has asked why, and is now trying to take away the reason given.

I think it is all going to come down to how stubborn the minority is.

vnjagvet said...

Because any verdict must be unanimous, how does one determine how many favor one position over another from this question alone?

hdhouse said...

fitzgerald went to lengths before the trial to note that the case stopped dead because he couldn't crack the lies. he pretty much piled on that Libby was part of an office obsessed with the issue. It isn't reasonable that Libby forgot and kept forgetting...and I think that the note is a question to how much slack the jury should cut Libby.

Old Dad said...

hdhouse,

Perhaps, Fitz could not crack the lies....because...they weren't.

To my mind, this case is rich in reasonable doubt, but the twelve now eleven men and women just and true heard all the evidence. I'm merely a kibbitzer.

Peter Palladas said...

Is this a conflation of the 'burden of production' and the 'burden of persuasion'?

michael a litscher said...

ARKANSAS ALTZHEIMER'S

Number of times that Clinton figures who testified in court or before Congress said that they didn't remember, didn't know, or something similar.

Bill Kennedy 116
Harold Ickes 148
Ricki Seidman 160
Bruce Lindsey 161
Bill Burton 191
Mark Gearan 221
Mack McLarty 233
Neil Egglseston 250
Hillary Clinton 250
John Podesta 264
Jennifer O'Connor 343
Dwight Holton 348
Patsy Thomasson 420
Jeff Eller 697

The Exalted said...

this question is ridiculous. the phrase "reasonable doubt" is all these morons need.

Freder Frederson said...

Number of times that Clinton figures who testified in court or before Congress said that they didn't remember, didn't know, or something similar.

Well, if Libby had simply used said "I don't recall" to the Grand Jury he probably wouldn't be in the mess he is in now. His problem is he created a ridiculous and verifiably false story about how he found out about the identity of Valerie Plame (i.e., he found out she worked for the CIA from Tim Russert). Then he tried to claim, when that particular lie fell apart, that he forgot he already knew when he talked to Russert that Plame worked for the CIA.

He is being tried not so much for being a liar, but for being such a bad liar.

Peter Palladas said...

ARKANSAS ALTZHEIMER'S

...love it!

There's a Vietnamese phrase 'theo tôi biet thì không' which roughly translates as 'Not that I'm aware of' or 'I am so sorry, you must be confusing me with someone who gives a sh1t.'

MikeinSC said...

fitzgerald went to lengths before the trial to note that the case stopped dead because he couldn't crack the lies. he pretty much piled on that Libby was part of an office obsessed with the issue. It isn't reasonable that Libby forgot and kept forgetting...and I think that the note is a question to how much slack the jury should cut Libby.

It's a shame he didn't present a case that eliminated reasonable doubt. He couldn't charge any crime since Plame didn't fit the definition of covert agent in the first place. He continued the investigation after learning who the leaker was early on.

All he has is "He said/she said" and some questionable tactics Fitz undertook to get it this far. He has trumped Starr in terms of bad prosecutions.
-=Mike

Daryl Herbert said...

Leftists want to nail Libby for one crime (perjury) so they can claim they are right about everything else (right that Plame was a secret agent, right to send Joe Wilson to Niger, right to believe Joe Wilson was telling the truth about what he saw in Niger, right to believe Joe Wilson was correct about what he saw in Niger, right to believe the administration deliberately outed Plame in retaliation... etc.)

For that reason, I hope Libby gets off, even if he is guilty of perjury. Surely others involved are far more culpable in the misrepresentations they made to the American public, where Libby just allegedly lied to an agenda-driven prosecutor who doesn't even care about the true source of the info that Plame was in the CIA.

It's not like Dems didn't want to let Clinton off the hook for perjury, so don't pretend like it's some monstrous crime. People barely ever get busted for perjury--but if you tell your clients that, make sure it's orally, and not in writing. Err, I mean, make sure you tell your clients, orally, not to lie, even though almost no one ever gets caught.

Bissage said...

Peter asked: "Is this a conflation of the 'burden of production' and the 'burden of persuasion'?"

The burden of production concerns the sufficiency of the evidence which is a conclusion of law made by a judge. There either is or is not sufficient evidence. There are no degrees of sufficiency. Jurors are never told about it and I would not expect them to know about it. Ideally, if there is insufficient evidence, the judge enters a judgment of acquittal before the jury begins to deliberate.

The burden of persuasion concerns the jury’s degree of certainty and is typically called the burden of proof, although technically speaking, the burden of proof has two components: (1) the burden of production and (2) the burden of persuasion. The burden of persuasion is the exclusive province of the jury, or so we say. There are rare instances when a judge will conclude as a matter of law that the weight of the evidence is such that no reasonable jury could find guilt beyond a reasonable doubt.

Here, the jury’s question evidences serious engagement with a very difficult issue: How does one tell the difference between reasonable doubt and beyond a reasonable doubt? The jury’s question is no model of clarity, but it is silent as to anything having to do with the burden of production.

P.S. I would fully expect the judge to respond to the question by simply re-reading the jury instruction on proof beyond a reasonable doubt. That’s typical, in my experience.

B said...

The commutative property of all this waste of time, money and talk:

"Time is money"

"Money talks"

"Talk is cheap"

Therefore, Time is Cheap, which Mr Federal Special Prosecutor Patrick Fitzgerald obviously believes, because he is wasting so much of ours.

B said...

Freder:

I actually (for once)believe that you hit the nail on the head.

Peter Palladas said...

For that reason, I hope Libby gets off, even if he is guilty of perjury

Spoken like the Attorney General of the United Kingdom charged, as senior law officer of the nation - and member of the Cabinet, with advising on possible criminal prosecution of his buddy and old flat mate T Blair and others for illegal acts with regard to the granting of honours.

Funnily enough this is the same man who told T Blair that the war in Iraq would be legal. (That's the war said B-Liar had already decided to wage - by the strangest of coincidences.)

Even more oddly we've never been allowed to see the contents of that advice in full. Ain't that strange?

Seven Machos said...

Here we have a completely fascinating question about what reasonable doubt is and a window into how juries of laypeople deal with it as a concept, and all our house goofy lefties want to do is call the jury "morons" and yelp that Libby is guilty! guilty! guilt! of crimes with which he is not charged.

My question is: can a jury be hung on some counts but not on others. Because that's what I think is happening, and I think the jury right now has Libby guilty on one or two counts and innocent on one or two.

I also don't think Libby will spend a day in jail or pay a penny in fines.

Seven Machos said...

Peter -- We've trodden this ground before with you with no answers whatsoever.

1. How is any war "legal" or "illegal"?

2. How is the War in Iraq "legal" or "illegal"?

3. What authority makes this determination?

4. How is the United States and/or Great Britain within the sovereign jurisdiction of this authority?

I am very interested to see you explain this one.

Peter Palladas said...

I am very interested to see you explain this one.

I have no ready answer. What I do know is that the Attorney General - as senior law officer in the land and friend of T Blair - was asked to give formal legal advice on whether or not it was lawful under national and international law for Britain to invade Iraq when and why it did.

That advice has never been published in full. The synopsis given - by T Blair surprise surprise - was that the Attorney General fully endorsed the legality of the act of war.

What though is believed, is that the actual advice given was far more circumspect and ambivalent, to the point of saying that while the war was was not actually illegal under British law, it was very far from being lawful.

We shall see when finally we have a full enquiry into the war, long after T Blair has retired to make his millions on the speaking circuit.

Bissage said...

Seven Machos asked: “[C]an a jury be hung on some counts but not on others[?]”

Smells like yes. “The district court has the legal authority to take a partial verdict in any criminal case involving multiple counts against a single defendant.” U.S. v. Taylor, 19 Fed.Appx. 62, 65 (4th Cir. 2001) (unpublished) (citing United States v. Benedict, 95 F.3d 17, 19 (8th Cir.1996); United States v. Ross, 626 F.2d 77, 81 (9th Cir.1980); United States v. DeLaughter, 453 F.2d 908, 910 (5th Cir.1972); United States v. Barash, 412 F.2d 26, 31-32 (2nd Cir.1969) (citing United States v. Cotter, 60 F.2d 689, 690-91 (2nd Cir.1932))).

Sloanasaurus said...

The Libby case is 100% a political prosecution. As someone said above, it is all about a special prosecutor trying to justify their existence and trying to make political hay out of nothing. As such, you are going to get jurors behaving in a politically partisan manner. If I were on the jury I would seek to nullify the prosecution regardless of how good a case was made against Libby for perjury. I would hold out forever. I would feel morally correct in my holding out because I know that the whole prosecution is a sham. Nullification is one of the many reasons why we have juries.

The question, no doubt, was submitted in an attempt to convince those on the jury who are holding out. They are probably giving ridiculous reasons for their holding out.

I predict a hung jury.

Sloanasaurus said...

I have no ready answer. What I do know is that the Attorney General - as senior law officer in the land and friend of T Blair - was asked to give formal legal advice on whether or not it was lawful under national and international law for Britain to invade

Oh yeah, you mean Saddam's violation of the treaty he made to end the first gulf war and the slew of resolutions and agreements he violated after... and hundreds of thousands of people he put into mass graves. Also the acts of war Saddam committed every day on our aircraft in the no fly zones....

I am willing to have that debate again. Anyone?

hdhouse said...

ok sloanie...

first explain how it was that we were selling him the gases he used internally on his people? and that pesky picture of him and rumsfeld...perhaps if you are stumped, you can ask ollie north.

hdhouse said...

i hit the publish button too fast...

and this has to do with libby lying under oath how?

are you always so stumped and gerflaffled when the ready answer that starts "well, clinton...." isn't applicable?

perhaps the obvious is true .. that libby so pissed off fitzgerald and libby was, in fact, falling on his sword for cheney and/or others but until libby started telling the truth generally...you get the picture.

Seven Machos said...

Well, Peter, if you don't know about international law and its institutions and lack thereof, or the legality or illegality of a war, possibly you shouldn't speak about war as a legal issue.

Fen said...

first explain how it was that we were selling him the gases he used internally on his people?

We didn't. Its a lefty lie that they have spun into urban legend.

Seven Machos said...

The United States did not sell Iraq the chemical arms it used on its own people.

Sloanasaurus said...

We didn't. Its a lefty lie that they have spun into urban legend.

You beat me too it. Although. the left is always willing to play six degrees of separation. Lets see: We gave food to africans in Zaire, where it was stolen and sold for guns, which were used in a raid on a gov office in S. Africa....you fill in the rest....

Peter Palladas said...

Well, Peter, if you don't know about international law and its institutions and lack thereof, or the legality or illegality of a war, possibly you shouldn't speak about war as a legal issue.

Shouldn't 'speak'? What kind of nonsense is that?

Shouldn't pronounce as a lawyer maybe, but then I'm not a lawyer so I don't.

I am satisfied that it is sufficient that there is a body of legal opinion - including the original advice given by the Attorney General - declaring the war to be illegal for me to be permitted to speak on the subject.

Unless you object of course, in which case I wouldn't dream of it.

Peter Palladas said...

I am willing to have that debate again. Anyone?

Robert Mugabe. Anyone?

hdhouse said...

urban legend my ass Fen

http://www.iranchamber.com/history/articles/arming_iraq.php

Paco Wové said...

Oh no! We're sliding into the Iraq sub-vortex!

Fen said...

urban legend my ass Fen

You keep using that link. I do not think it means what you think it means.

Lovely sourcing too. I'll bet Mary Mapes added a memo proving your point?

Fen said...

Well, Peter, if you don't know about international law and its institutions

Funny how the crowd that holds international law sacrosanct manages to ignore the portions that obligate occupying powers to stick around and rebuild the conquered nations.

The forces of the USA and UK, as occupying powers under international law, have clear obligations to protect the Iraqi population. These obligations derive from international humanitarian law, which has long defined the rules on belligerent occupation, complemented by human rights law, which binds any state exercising jurisdiction or control over a territory. The USA and UK must fulfil their obligations and continue to do so for as long as they exercise military authority over Iraq.

The provisions of the law on belligerent occupation are found in international humanitarian law, also known as the laws of war or the laws on armed conflict. As such, they take into account the military and security concerns of the occupying power, balancing them against the rights of those who find themselves under its authority. The sources for the obligations under international humanitarian law applicable to belligerent occupation are found in:

The Hague Convention (IV) respecting the Laws and Customs of War on Land (Hague Convention) and its annexed Regulations respecting the Laws and Customs of War on Land (Hague Regulations) of 18 October 1907;
The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) of 12 August 1949;
Article 75 of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I);
Rules of customary international law.


http://web.amnesty.org/library/Index/ENGMDE140892003

Seven Machos said...

Peter, again: what legal authority does the United States or Great Britain have to answer to and what law did it make prohibiting the Iraq war?

Mortimer Brezny said...

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. Do you agree?

No. The Government need not prove it was impossible for Libby to forget, but if the question is being asked it suggests a juror or more believes Libby's story is credible. To the extent Libby's story is credible, Fitzgerald's case is incrdible. Someone is trying to argue that the case may be somewhat incredible but they can still convict, anyway. I sincerely doubt that argument will prevail.

The Exalted said...

machos, i like when you try to get dirty with legal questions...its so cute.

and i stand by declaration that the jurors are morons -- their question is moronic. anyone who thnks otherwise is themself a moron.

i've seen juries in action. its not a pretty sight.

Fen said...

Echo:

what legal authority does the United States or Great Britain have to answer to and what law did it make prohibiting the Iraq war?