ANALYSIS: Timing the Libby Verdict
Feb. 27, 2007 — -- The jury in the Lewis "Scooter" Libby trial could come back with a verdict as early as today, but no one knows for certain. Anyone who says they know what the jury is going to do is probably just making it up as they go along. The jury has been out since last Wednesday, and it has asked the judge for a flip chart, post-it notes, tape and pictures of the witnesses -- no doubt trying to reconstruct testimony on 11 conversations Libby had with 9 different people. The time they're taking with deliberations reveals the true complexities of this case.
Libby is charged with lying to investigators who were trying to figure out who leaked the identity of Valerie Plame, a covert CIA agent and wife of a Bush administration critic.
Former Assistant U.S. Attorney Michael Levy has prosecuted white collar criminals in Washington. "I don't think anybody knows what this jury's gonna do," said Levy. "Any time you start deliberating in a case, the deliberations wind up taking twists and turns that no jurors necessarily anticipate."
Circumstantial Evidence
Levy points out the prosecution's case is based on circumstantial evidence, noting that the jurors have to wade through testimony about conversations Libby had with journalists.
And then there's the question of motive. The prosecution painted a picture of Libby as a liar, consumed with a mission to discredit Plame's husband, Bush administration critic Joseph Wilson. After displaying a flow chart and detailing conversations Libby had with journalists, Deputy Special Counsel Peter Zeidenberg told the jury, "Consider how amazingly sharp and clear that is… He can remember a conversation with Karl Rove but he can't remember one out of nine other conversations he had because it was a trivial matter." The prosecution told the jury that just couldn't be true — a man so obsessed with this matter wouldn't forget these key conversations.
"Prosecutors, often during closing arguments, will appeal to jurors' common sense: It just doesn't make sense that he could've done A, and nonetheless done B," said Levy. "I used to refer to it as a prosecutor as the 'oh, come on' argument… the question is gonna be whether the 'oh come on' argument is going to be enough to prove guilt beyond a reasonable doubt."
"This is the story he came up with, and he had to maintain that," Zeidenberg said to the jury.
Reasonable Doubt
But Libby's defense team told the jury this case is fraught with reasonable doubt.
The defense countered that Libby's job was so intense, characterized by defense counsel Ted Wells as "one of the highest stress jobs in the country," that two people now fill his old position at the White House. They contend the stress accounts for Libby's spotty memory, and that a bad memory does not justify a conviction. Levy points out that the neither the journalist nor Libby took any action based on the conversations in question. "And so the prospect that either Scooter Libby or the journalists got confused is very real."
Caught Up in the Political Theater
In this case that has given the public a rare glimpse into the inner workings of the White House, Levy said it's easy to get caught up in the political theater. "But on the other hand, the question before the jury is a purely legal one. Did the government prove beyond a reasonable doubt that Scooter Libby intentionally lied about these two conversations?" Levy asked.
The arguments might seem simple. The prosecution said the issue of discrediting Wilson was important to Vice President Cheney, so by default it was a top priority to Libby. That level of priority, contends the prosecution, is motive enough to lie. Prosecutor Patrick Fitzgerald said of Libby, "There is no conspiracy… no memory problem… he had a motive to lie."
'This Is Not an Election, This Is a Trial'
Libby faces up to 30 years in prison and $1.25 million in fines if convicted. "The defense is trying to say, this is not an election, this is a trial," said Levy, "and although Scooter Libby might lose an election, he shouldn't lose a trial." In his closing, Wells was passionate and emotional, almost in tears, asking the jury to be fair to Libby. "This is a man with a wife and two kids…I gave him to you," said Wells, "just give him back to me."