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Sunday, February 18, 2007

Fitzgerald Response to Court's Proposed Jury Instructions [Doc 296]

For the index averse readers, additional recent filings:

Libby Response to Court's Draft Jury Instructions [Doc 295]
Libby Objections to Proposed Verdict Form [Doc 294]

This filing reiterates many of the arguments made in Fitzgerald's Consolidated Proposed Jury Instructions [Doc 285], filed on Wednesday, February 14.

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 1 of 11

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA )
) CR. NO 05-394 (RBW)
v. )
)
I. LEWIS LIBBY, )
also known as "Scooter Libby" )

GOVERNMENT'S RESPONSE TO THE COURT'S
DRAFT JURY INSTRUCTIONS

The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, SPECIAL

COUNSEL, respectfully submits the following response to the draft jury instructions provided to the

parties by the Court on Friday, February 16, 2007, as well as to the defendant's response to the

Court's draft, and objections to the Court's proposed verdict form filed on February 17, 2007.

Unanimity Instructions and Special Verdict Forms

The government does not object to modifying the unanimity instruction to read:

If you cannot unanimously agree that a particular statement or representation alleged
in Count [One, Two and Five] was false, then you must find Mr. Libby not guilty of
that count.

The government objects to including the phrase "and that Mr. Libby knew this when he made the

statement" in that it is potentially confusing, given the Court's other instruction that defines "false"

to including defendant's knowledge of the statement's falsity. As the government has previously

argued, it is potentially confusing and inappropriate to repeat portions of instructions in multiple

contexts.

With respect to the Court's suggested verdict form, the government prefers the use of the

special verdict form suggested by the Court to the use of a special verdict form with respect to Count

One and general verdict forms with respect to the other counts as requested by defendant. When

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 2 of 11

asked by the Court on February 15, 2007 whether the government could agree to the defendant's

proposal, the government responded that it could agree if certain additional instructions were

provided. That position has not changed; however, as previously expressed, the government's

preference is for the use of the verdict form drafted by the Court. Moreover, the government notes

that the defendant has failed to express any reason for his objection to the use of a special verdict

form with respect to Counts Two and Five and the government is at a loss to think of one. The

government is unaware of any case authority indicating that the defendant's choice governs the

decision; instead, as the government reads the applicable case law, the matter is left to the discretion

of the trial court.

Obstruction of Justice

The government agrees that the language of the Obstruction of Justice elements instruction

should be modified. The government proposes that elements (3) and (4) be modified as follows:

(3) That the defendant corruptly endeavored to influence, obstruct or
impede the due administration of justice;

(4) That Mr. Libby carried out the corrupt endeavor by making the
following three allegedly false statements with intent to mislead or deceive the grand
jury as to when or how he acquired or thereafter disclosed to the media information
concerning the employment of Valerie Plame Wilson by the CIA.

Finally, the government also agrees with the defense that the passage "and Mr. Russert told

Mr. Libby that all the reporters knew it" should be added to False Statement No. 1 and removed from

False Statement No. 2 in the Obstruction of Justice instruction.

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 3 of 11

Perjury

The government has no objection to removing the ellipses between the two sub-statements

in Statement One of Count 5, and to editing the parenthetical to state that the statement extends from

page 187, line 14 to page 188, line 5, as requested by the defense.

The government also has no objection to the defendant's proposed change to the last sentence

of the perjury instruction, so that it references the four allegedly false statements rather than the two

appearances.

The government maintains that there is no factual basis to support the giving of any

instruction regarding ambiguity. See, e.g., Mathews v. United States, 485 U.S. 58, 63 (1988)(stating

that defendant is "entitled to an instruction as to any recognized defense for which there exists

evidence sufficient for a reasonable jury to find in his favor"). Thus the government objects to the

language concerning ambiguity contained in the Court's draft instruction regarding the elements of

perjury, and requests that it be deleted.

The government agrees with the Court (and with defense counsel, who originally made the

suggestion) that it will be helpful to the jury to have citations to the full grand jury transcripts for the

testimony that is at issue with respect to Counts 4 and 5. The government therefore provided such

an exhibit with its February 16, 2007 filing (Government's Objections and Proposals Regarding

Final Jury Instructions). In the most recent set of instructions provided by the Court, the transcript

cites have been incorporated into the instructions; therefore, a separate exhibit may no longer be

necessary. If the Court would still like to include the "Exhibit A" previously provided by the

government, the government has no objection to including it with the instructions, and disagrees that

there is any potential for prejudice to the defendant in doing so.


     Case 1:05-cr-00394-RBW           Document 296         Filed 02/18/2007        Page 4 of 11



        If, however, the Court believes providing the cites within the instructions obviates the need

for a separate exhibit, the government also has no objection. If that is the case, the government

suggests the following proposal to address the defendant's concern that the current language of the

instructions indicates that a separate exhibit is being provided: Change "with" to "in" in the sentence

that currently states, "That portion of the grand jury testimony which the indictment alleges in count

four was false, is being provided to you with these instructions, with those portions of the testimony

that are allegedly false underlined." This sentence is used with both Counts 4 and 5, so if adopted,

the change should be made in both places.

Beyond a Reasonable Doubt

        The government agrees with the defense's suggestion that the phrase "beyond a reasonable

doubt" should be moved from its current location after "in order to prove an offense" to between the

phrases "the government must prove" and "the following four elements" in each of the elements

instructions.

Evaluation of Prior Inconsistent Statements

        The concerns raised by the defense on this issue, namely, that the Court's suggested language

"suggests that a prior unsworn statement is, to some degree, inherently questionable because the

declarant faced no criminal punishment for lying" and that "the prior statement could have been

made before any motive to lie existed," suggest that the defense may be planning to argue prior

inconsistent statements for their truth. Obviously, such an argument would be contrary to law and

contrary to the Court's instructions. However, the government agrees that the phrase "when the

witnesses were not under oath" is not included in the D.C. Form Instruction, and has no objection

to its deletion.


                                                  4

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 5 of 11

Instruction Regarding Defendant's July 12 Conversation with Judith Miller

The government requests that, if the Court's current language is used, the following should

be added before "beyond a reasonable doubt" at the end of the instruction: "including the allegations

of Count One."

Alternatively, the government proposes that the following language be used in place of the

Court's draft instruction:

Count One of the indictment originally included an allegation that Mr. Libby
obstructed justice by making false statements about a conversation with Judith Miller
on or about July 12, 2003. That allegation has been dismissed and is no longer
before you. You may not consider the fact that the allegation was once made, or the
fact that the allegation was later dismissed, to affect or influence your deliberations.

You may, however, consider the evidence you heard regarding the July 12, 2003
conversation between Mr. Libby and Ms. Miller, as well as evidence you heard
regarding all other conversations between Mr. Libby and Ms. Miller, as evidence in
determining Mr. Libby's guilt or innocence on all of the counts of the indictment,
including Count One.

In addition, the government notes that, as currently formulated, this instruction is included

in both the limiting instructions and the final instructions. Only one copy of the revised instruction

should be sent back to the jury, and the instruction previously given should be removed from both

sets of instructions.

Instruction Regarding IIPA

The government has noted that the Court intends to allow the defense to re-open the evidence

to admit a copy of the IIPA. We understand that this will obviate any need for an instruction on this

issue.

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 6 of 11

Given the likelihood that the defense will focus on the IIPA statute in closing, and on the

defense's arguments during opening that suggested that others should be on trial instead of him, the

government proposes that the following instruction be given:

You are here to decide whether the government has proved beyond a reasonable
doubt that the defendant is guilty of the crimes charged in the indictment. The
defendant is not on trial for any act, conduct or offenses not alleged in the indictment.
Neither are you concerned with the guilt or innocence of any other person or persons
not on trial as a defendant in this case.

Pattern Crim. Jury Instr. 5th Cir. 1.19 (2001).

Memory

The government strenuously objects to including the language which the defense proposes

be added to the Court's current instruction on memory:

You should consider that a person's confidence in the accuracy of his
recollection of an event may not correspond directly to the accuracy of the person's
recollection. In other words a person may be very confident that his memory of an
event is accurate when in fact it is inaccurate.

You should also consider that if a person remembers an event incorrectly the
first time he tries to recall it, his later recollections of the event may repeat that error.

Def. Rsp. at 8.

As an initial matter, the government notes that, far from conceding the accuracy and

reliability of the "findings" concerning which the defendant proposed to introduce expert testimony,

the government has consistently maintained that the proffered "findings" could not reliably be

applied to the facts of this case and would not be helpful to the jury. See R. 139 at 17. ¹ The question

of whether the proffered "findings" should be admitted does not turn on whether they are reliable

¹
The government did not challenge Dr. Bjork's credentials or general expertise, but merely
challenged the reliability of his findings as applied in the instant case, and argued that the admission
of his opinions would be confusing and misleading, and not helpful to the jury.

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 7 of 11

in the abstract, or in contexts distinct from this case. What matters is whether they meet the Daubert

standard of being both scientifically reliable and relevant, that is, whether the "`reasoning or

methodology properly can be applied to the facts in issue." Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 589, 593 (1993). As the Supreme Court has cautioned, "`Fit'

is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for

other, unrelated purposes.'" Id. at 591. See also General Electric Co. v. Joiner, 522 U.S. 136, 146

(1997)(approving exclusion of expert testimony as unreliable where studies offered in support of

expert's conclusion dissimilar to facts of case). Thus, as the government previously argued,

whatever merit Dr. Bjork's findings may have in other contexts, putting such findings before the jury

in this case would serve no purpose other than to confuse and mislead.

Nothing in the testimony of Dr. Elizabeth Loftus at the Daubert hearing justified the

presentation to the jury in this case of Dr. Bjork's opinions regarding the correlation of confidence

and accuracy, or the likelihood that errors in recall may be repeated. On cross-examination, ² Dr.

Loftus conceded that the studies Dr. Bjork relied upon regarding the correlation between confidence

and accuracy failed to take into account the distinction between comparisons between the confidence

and recall of multiple witnesses to the same event, and comparisons between recollections of

different events by the same person. 10/26/06 a.m. Tr. 84-85. Dr. Loftus also acknowledged that

studies showing that people are likely to repeat errors in recollection generally focused on the

circumstances involving eyewitness identification, and failed to present any studies that addressed

²
Rather than expose Dr. Bjork to cross-examination, the defense elected to present the
testimony of a different expert, Dr. Elizabeth Loftus at the Daubert hearing conducted by the Court,
and focused Dr. Loftus's testimony on studies showing that jurors failed to appreciate the proffered
findings on memory, rather than on the proffered findings themselves.

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 8 of 11

the question of whether jurors were able to appreciate this phenomenon in any other context.

10/26/06 p.m. Tr. 13-14.

The instructions defendant seeks to include would improperly put before the jury claims and

conclusions that Dr. Loftus conceded, and the Court previously found, were supported only by

studies involving substantially different factual situations, and unsupported by any studies showing

that the issues, at least applied in the factual context of this case, were outside the ken of the average

juror. R. 169 at 15 ("This Court . . . has difficulty concluding that the studies provided by the

defendant are applicable in any meaningful way to the case at hand, because they do not focus on the

precise issues before the Court.") and 25-27 ("[T]he theories about which Dr. Bjork would testify

are not beyond the ken of the average juror."). Giving the requested instructions would deprive the

government of an opportunity to refute through cross-examination the reliability and applicability

of the claims and conclusions included therein in the context of this case, and would be highly

misleading and prejudicial.

As this Court may recall, Dr. Loftus conceded that the correlation between confidence and

accuracy when comparing a single subject's memories is different from the correlation when

comparing the memories of multiple subjects. Specifically, Dr. Loftus acknowledged that the

correlation is stronger when you compare one subject's memories of different events. 10/26/06 a.m.

Tr. 85. Defendant ignores this distinction and argues that the instruction is needed to assist the jury

in assessing the defendant's apparent confidence while testifying before the grand jury, and in

comparing the recollections of multiple witnesses, including defendant, Tim Russert and Ari

Fleischer. In light of Dr. Loftus's comments, even assuming that it would be appropriate to

extrapolate from research involving circumstances far different from those present in this case, it

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 9 of 11

would be inaccurate and misleading to instruct the jury regarding a weak correlation between

confidence and accuracy, and allow the defense to argue, based on that instruction (See Def. Rsp.

at 9), that the jury should not consider the relative confidence levels reflected by defendant's grand

jury testimony in assessing whether his false statements were the product of faulty memory or

deliberate lies. With respect to the jury's assessment of the relative reliability of the recollections

of defendant and Messrs. Russert and Fleischer, the proposed instruction would serve no purpose.

According to the defense, all three witnesses testified with apparent confidence in the accuracy of

their recollections. Under such circumstances, the jury is not likely to consider apparent confidence

as a significant factor, with or without an instruction on the subject. The lack of need for an

instruction on the weak correlation between confidence and accuracy is further supported by the

prospective jurors' comments during jury selection which clearly indicated that the fact that people

sometimes "firmly believe that their memories are accurate when they are not" is a matter of

common knowledge.

The proposed instruction on the likelihood of repeating recollection errors is even more

problematic. None of the studies provided by Dr. Bjork in support of this issue involved factual

contexts even remotely similar to this case; none involved erroneous recollections of conversations.

The defense suggests that the instruction is needed to provide the jury with a basis for contradicting

the government's argument that, once defendant spoke to the FBI in October 2003, he was motivated

to stick to his story, but fails to explain what "error" defendant may have repeated. Whatever that

error may be, it would be highly prejudicial to state as a fact that the jury is bound to accept, a

"finding from the science of memory" that has not shown to be reliably applied in circumstances like


    Case 1:05-cr-00394-RBW           Document 296         Filed 02/18/2007       Page 10 of 11



those presented here -- particularly where the only factual foundation for the instruction is the

assumption of the very fact the jury will be required to decide.

Limiting Instruction Regarding Disclosure of NIE

       The government requests that the phrase "at least" be removed from the Court's most recent

formulation of the limiting instruction regarding the propriety of defendant's disclosures of portions

of the NIE because the evidence shows, at best, that the portions of the NIE disclosed by the

defendant were declassified on or after July 8, 2003, and not before.



                                                      Respectfully submitted,

                                                             /s/        
                                                      PATRICK J. FITZGERALD
                                                      Special Counsel
                                                      Debra Riggs Bonamici
                                                      Kathleen M. Kedian
                                                      Peter R. Zeidenberg
                                                      Deputy Special Counsels

                                                      Office of the Special Counsel
                                                      U.S. Department of Justice
                                                      1400 New York Ave., N.W.
                                                      Washington, D.C. 20530
                                                      202-514-1187

Dated: February 17, 2007




                                                 10


    Case 1:05-cr-00394-RBW           Document 296        Filed 02/18/2007      Page 11 of 11



                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 17th day of February, 2006, I caused true and

correct copies of the foregoing to be served on the following parties by electronic mail:



                          William Jeffress, Esq.
                          Baker Botts
                          The Warner
                          1299 Pennsylvania Avenue, N.W.
                          Washington, DC 20004-2400
                          Facsimile: 202-585-1087

                          Theodore V. Wells, Esq.
                          Paul Weiss
                          1285 Avenue of the Americas
                          New York, NY 10019-6064
                          Facsimile: 212-373-2217

                          John D. Cline, Esq.
                          Jones Day
                          555 California Street
                          San Francisco, CA 94104
                          Facsimile: 415-875-5700

                                                             Patrick J. Fitzgerald
                                                             Special Counsel
                                                             U.S. Department of Justice
                                                             1400 New York Ave., N.W.
                                                             Washington, D.C. 20530
                                                             202-514-1187

                                                             By:      /s/        
                                                             Debra Riggs Bonamici
                                                             Deputy Special Counsel

posted by cboldt # 2/18/2007 07:24:00 AM

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