No Easy Answers

Monday, March 05, 2007

Court Response to Jury Questions on Cooper/Reasonable Doubt [Doc 313]


OCR Job (short and sweet this time - I gave up on the 48 page opinion)

I'm going to add the reply to question two to the list of Grounds for Appeal, because Judge Walton has expressly opened up the entirety of the grand jury testimony, rather than limiting the jury to the specific conflicting historical hypotheticals recited in these parts of the indictment ...

        [Libby said] 32.b. LIBBY advised Matthew Cooper of Time magazine on or 
        about July 12, 2003, that he had heard that other reporters were saying 
        that Wilson's wife worked for the CIA, and further advised him that 
        LIBBY did not know whether this assertion was true;

[But in fact] 33.b. LIBBY did not advise Matthew Cooper, on or about July 12, 2003, that LIBBY had heard other reporters were saying that Wilson's wife worked for the CIA, nor did LIBBY advise him that LIBBY did not know whether this assertion was true; rather, LIBBY confirmed to Cooper, without qualification, that LIBBY had heard that Wilson's wife worked at the CIA;

I disagree with those who conclude that this represents reversible error. I find so because focusing on phrases "32.b" and "33.b" is an attempt to divert attention away from the beef this indictment is laying down in Count One; that Libby was "misleading and deceiving the grand jury as to when, and the manner and means by which, LIBBY acquired and subsequently disclosed to the media information concerning the employment of Valerie Wilson by the CIA."

If Libby's recounting of the Cooper conversation has the effect of misleading and deceiving as to Libby having information from other than reporter sources (and he had the requisite mens rea - separate element), then he is guilty of obstruction.

But clearly Wells disagrees with my point of view. Here is from a Marcy Wheeler liveblogging post earlier today ...

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.

Wells went on at length, arguing from a point of concern that the jury might take the charge as something as broad as I suggest is correct. Wells prefers the Court to make sure the jury sees the charge as the narrow difference between 32.b and 33.b.

This is a second bite at obtaining the defense preferred structure for the obstruction count, as the Judge didn't limit the instruction per the terms of the indictment. But here, Judge Walton is expressly telling the jury to look beyond the words in "32.b" and "33.b" of the indictment, and the defense is apt to assert that this produces a charge that the indictment does not make.

Case 1:05-cr-00394-RBW     Document 313     Filed 03/05/2007     Page 1 of 1


Responses to Jury Notes

Response to Question One:

    The instruction I gave you on reasonable doubt is the most detailed language I can provide you on what amounts to reasonable doubt. I request that you re-read the reasonable doubt instruction and consider all of it in yow evaluation of what amounts to reasonable doubt and what the government's burden of proof is in proving guilt beyond a reasonable doubt.

    As to the second part of your questions which asks "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 w find guilty beyond a reasonable doubt," I do not fully understand what you mean by "not humanly possible." If you can rephrase the question considering the language I gave you in the reasonable doubt instruction, I will assess whether I can provide further guidance to you.

Response to Question Two:

    As to Count One, Statement Three, the charge is set forth in the instructions. In assessing whether the Government has proven the elements of Count One Statement Three beyond a reasonable doubt, you may consider all of the evidence in the case, including any and all portions of Mr. Libby's grand jury testimony.

Your explanation of the dispute looks okay, it's a point I had considered but did not recognize in the dialog.

Clearly the charge is ...

Libby testified he told Cooper that: (1) reporters told him (2) didn't know if it were true.

Cooper's note appears to support that testimony.

Your expanded POV is that Libby testified in such a way as to give the impression that when he said that to Cooper he really didn't know if it were true which would mislead the GJ about his actual state of knowledge.

Ok fine. But the charge can't be read that way.
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