No Easy Answers

    A placeholder while waiting for the court to publish the March 5 jury questions.

    Long story short? The confusing date formulation in Count 1 of the jury instructions was instigated by the government, and it represents a defect in the instructions. Walton will (he MUST, no ifs ands or buts) repair the defect. He MUST also retain the requirement that the jury have unanimity as to which specific statement (or statements) before the grand jury represents obstruction. If they agree on a "specific statement," the jury would necessarily be agreeing on a date. But they do NOT have to find that Libby made the same "lie" on both dates, which is what the instructions now tell them to do.

    We'll know soon if I am right on the point of "date unanimity" being raised as a Count 1 issue by the jury. But even if the jury doesn't raise it, the instruction as stated in the draft jury instructions is defective, and must be adjusted.

UPDATE @ 10:41

    Looks like I was wrong (again!) on the jury questions.

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Case 1:05-cr-00394-RBW     Document 314     Filed 03/05/2007     Page 1 of 1


        All three questions below relate to count 3 (pages 74 & 75)

        #1 - Is the prosecution alleging that Mr. Libby did not make the
             statement to Cooper as presented to us in the Indictment 
             OR is the allegation that Libby did know Mrs. Wilson
             worked for the CIA when he spoke to the FBI on 
             10/14/03 or 11/26/03?

        #2 - Is the prosecution's allegation in Count 3 that Mr. Libby 
             DID know that Mr. Wilson's wife worked for the 
             CIA when he made statements to the FBI on 10/14/03 OR  11/26/03?
             (Pages 74/75 .... "that Mr. Libby did not know if this was true."

        #3 - In determining Count 3, are we allowed to consider 
             Mr. Libby's grand jury testimony?


            3/05/07
            3/30/07 3:30pm  

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Case 1:05-cr-00394-RBW     Document 315     Filed 03/05/2007     Page 1 of 2


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


Responses to Jury Note


Response to Questions One and Two:

    Mr. Libby is charged in Count Three with knowingly making a false statement to the FBI
during interviews on October 14 and November 26, 2003, namely, the statement that:

    "During a conversation with Matthew Cooper of Time magazine on July 12, 2003, Mr.
    Libby told Mr. Cooper that reporters were telling the administration that Mr. Wilson's
    wife worked for the CIA, but that M. Libby did not know if this was true."

    Count Three charges that the above statement was false in that Mr. Libby did not advise
Mr. Cooper on or about July 12, 2003, that reporters were telling the administration that Mr.
Wilson's wife worked for the CIA, nor did Mr. Libby advise Mr. Cooper on that date that Mr.
Libby did not mow whether the information regarding Ms. Wilson's employment was true.
Count Three alleges that, rather, Mr. Libby confirmed for Mr. Cooper, without qualification, that
Mr. Libby had heard that Mr. Wilson's wife worked at the CIA.

    To be clear, Mr. Libby is charged in Count Three with making a false statement to the
FBI about what was said during his July 12, 2003, conversation with Mr. Cooper. Mr. Libby is
not charged with making a false statement to Mr. Cooper.

    You have asked with respect to Count Three "[I]s the allegation that Libby did know Mrs.
Wilson worked for the CIA when he spoke to the FBI on 10/14/03 or 11/26/03?" You have also
asked "Is the prosecution's allegation in Count 3, that Mr. Libby DID know that Mr. Wilson's
wife worked for the CIA when he made statements to the FBI on 10/14/03 OR 11/26/03 ....?"
To be clear, Count Three does not allege, nor does the prosecution contend, that Mr. Libby told
the FBI that, at the time of his FBI interviews, he did not know that Mr. Wilson's wife worked
for the CIA.



Case 1:05-cr-00394-RBW     Document 315     Filed 03/05/2007     Page 2 of 2


Response to Question Three:

    With respect to your third question, the charge in Count Three relate solely to Mr.
Libby's statement during his FBI interviews, and not to any of his testimony before the grand
jury.  Concerning the false statement to the FBI charged in Count Three, you may consider Mr.
Libby's grand jury testimony in March 2004, along with all other evidence admitted at trial, to
the extent you find it helpful in deciding whether the government has proven beyond a reasonable
doubt each of the elements as described in the instructions.

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    Not to be a contrarian, but I think the press and the vast majority of Libby trial observers are incorrect by taking the "date unanimity" question as applying to Count 3 of the indictment and jury instructions.

    Date unanimity is the notion that the jury must agree on a specific instance of a lie - contents and timing - in order to render a guilty verdict. If the instruction is that "Libby is guilty if he made XYZ lie on March 5, and made XYZ lie on March 24," then the jury must unanimously find he made XYZ lie on both dates.

    I think the speculative focus on Count 3 for a "date unanimity" issue is incorrect because, while the indictment DOES have certain phrasing, the instructions given to the jury deviate from the indictment in multiple regards; and the jury instructions (not the indictment) will be the basis for jury questions. The jury does NOT have the indictment.

    Count 3, from the indictment: "2. On or about October 14 and November 26, 2003, in the District of Columbia ..."

    Count 3, from the draft instructions: "Count three of the indictment alleges that Mr. Libby falsely told the FBI on October 14 or November 16, 2003."

    Obviously something changed in between the indictment and the composition of the jury instructions. But Count 3 is not the only one that changed ...

    Count 1, from the indictment: "In or about March 2004, in the District of Columbia, I. LEWIS LIBBY, also known as 'SCOOTER LIBBY,' defendant herein, did knowingly and corruptly endeavor to influence, obstruct and impede the due administration of justice."

    That's it. Just "March 2004," with no date specified.

Speculation as to which Count is being dissected
Mar 05, 2007 at 05:43:11 PM EST

I'm inclined to think the "date unanimity" issue is with Count 1, not with Count 3. I base that mostly on reference to the draft jury instructions, where Count 1 is the only one that has a need for a statement to be made on both dates.

As a secondary rationale, Counts 2 and 3 are difficult for the jury to date-differentiate on, because they don't have transcript testimony to illustrate slight differences between testimony given in October vs. in November. On the other hand, from the draft instructions ...

Count one of the indictment charges that on or about March 5 and March 24, 2004 ...

I can see where that "and" requirement would cause some discussion and confusion, as the jury tries to figure out similarities and differences between March 5 and March 24 testimony, which they have in written form.

Contrast that with Count 5, which lists 4 individual items, each one with a specific date and specific testimony, and an instruction that says "if you unanimously agree on any one of these, then you must find the defendant guilty."

    Just for kicks, I looked at the "date of offense in Count 1 issue" through the rather convoluted evolution of jury instructions. It's very clear that issues OTHER THAN the use of conjunction between dates had a higher priority than expressing the date(s) of the charged offenses. The first time the date in Count 1 is expressed as "or about March 5 and March 24, 2004" appears in the government's proposed jury instructions [Doc 181 : 11/15/06]. Libby's response [Doc 226 : 12/22/06] doesn't comment on the date expression, and Fitzgerald's reply in opposition [Doc 230 : 01/04/07] reverts to the "March 2004" formulation.

    There is another thread of wrangling that begins with Libby's proposed instructions [Doc 180 : 11/13/06]. In this thread, Fitzgerald's response [Doc 227 : 12/22/06] also reverts to the "March 2004" formulation, and Libby's reply [Doc 229 : 01/03/07] makes no mention of the formulation of the "date lead-in" language. The jury instruction evolution got more complicated when the Court proposed draft instructions.

    Libby's reply to the court's proposed instructions [Doc 248 : 01/17/07] picks up the "or about March 5 and March 24, 2004" formulation for Count 1. I assume that the Court took Fitzgerald's language, proposed in November, and just ran with it. Later pleadings in this thread of negotiation either adopt that formulation, or are silent on the matter. Some contentions are outright false, for example, the Court's language as cited in Libby's second proposed set of jury instructions [Doc 283 : 02/14/07] says "Count one of the indictment charges that on or about March 5 and March 24, 2004 ..." but as noted above, the indictment uses the more general formulation of "March 2004" with no specific date qualifier.

    Just to make the analysis complete (none of these touch on the difference between the indictment and the draft jury instructions, relating to the date of the Count 1 offense), I also reviewed these pleadings: Fitzgerald's Consolidated Jury Instructions [Doc 285 : 02/14/07]; Fitzgerald's Objections to Court Proposal [Doc 292 : 02/16/07]; Libby Response to Court Proposal [Doc 295 : 02/17/07]; and Fitzgerald Response to Court Proposal [Doc 296 : 02/18/07].

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    How did the press pick the nomenclature "Count 3" for this? I suspect the jury asked about the 3rd point of Count 1 (as expressed in the jury instructions), which just happens to be on the subject of obstruction (not false statements) as Libby talked to the grand jury about his conversations with Cooper. It happens that Count 3 also refers to the Cooper conversation. I think it's a natural to leap to Count 3 on hearing "Cooper" and the judge talking about "finding false statements in the transcript."