On Libby Jury

Okay - my only speculative post on the Libby jury deliberations:

After a short day of deliberating today, the jury left two questions for the judge to answer for them at the start of the day Monday. You can see the actual handwritten notes here.

Ignoring the first question, I want to wager two guesses about what we can tell about jury from its contents. We'll see if I'm right.

Here is the content of the second jury question:

We would like clarification of the term "reasonble doubt." Specifically, is it necessary for the government to present evidence that it is not humanely possible for someone not to recall an event in order to find guilt beyond a reasonble doubt?

Oh, come on. The tortured phrasing? The ridiculous, almost rhetorical nature of the question ("it is not humanely possible...to find guilt beyond a reasonable doubt")? One or more potential holdout jurors have been pinned to a very specific (and indefensible) interpretation of reasonable doubt and the burdens of proof, and the unifed block of jurors are sending it up for the smackdown. Don't forget, they sent out a note requesting a dictionary earlier this week and were told they could not have one by the judge.

Even more, I think you can read today's note as strongly suggesting that that a strong majority or supermajority have been able to force the potential holdout juror that it is was their responsibility to propose a definition of "reasonable doubt" that the judge will either confirm or reject. Since the dictionary couldn't be used to point out that "reasonable" and "not humanely possible" only have in common the fact that you can find the words in the same book, the supermajority of jurors are forcing the holdout into a dilemma of their own making.

Why is it likely that there is only one (or at most two) potential holdout jurors?

1. the language of the definition is so tortured with its double (or is it triple?) negation, that it doesn't seem likely that the contents of the defintion are a product of human collaborative effort. (If you look at the note, it has a couple of inserted words, suggesting that the group didn't discuss how exactly to formulate a very precise question. Hell, even the word "specifically" is added via insert. You can almost hear the foreperson now: "Alright, we're holding you to this: What is your specific threshold of doubt, beyond which you would agree that it is not reasonable for Libby to 'forget' what nine others remember pretty clearly? Come on, what is it? And be specific!"

2. Along these same lines -- only a strong majority could exert enough power in small group deliberations to force an individual member of the jury to commit themselves to one specific defintion in the first place. Even two or three people (or even one if they heldout strong enough) could generate enough solidarity and good will among the others to get them accept some other position as at least "reasonable". All that has to be said is that "Sorry gang, but I have doubts that the prosecution proved the charge. I can't just stop having them. And to me, a reasonable person, that means that the charge hasn't been proven beyond a reasonable doubt. " Ding dong, hung jury. No no. In our case the potential hold out has been forced to spell out their ridiculous supposition and subject it to open scrutiny of the embodiment of the law, the judge. That means the majority is strong enough to force the minority into an agreement to accept the judge's view of "reasonable doubt" as dispositive. Doubt is such a nebulous thing that I find it hard to believe that anything but a strong and vocal and clear majority could force deliberation to such a head.

3. Also, the ridiculous phrasing strongly suggests that there wasn't a lot of time given to the potential holdout for revision. "Why specifically do you think that the prosecution hasn't proven beyond reasonable doubt? What is your "reasonable doubt"? Oh? Because humans aren't perfect and do forget things? And, what's that you say? The prosecution never ever proved that humans can't forget things, so its still possible that Libby did forget things? Fine - we're sending this up to the judge right now, and asking him if it is okay to apply the standard of guilt you want to use. If the judge comes back saying that the standard we apply must be less that requiring the prosecution to prove that, as you said, "it is not humanely possible for a person not to recall an event" then you must admit you have no reasonble doubt about the defendant's guilt." Without any time to revise you end up with an off-the-cuff and under pressure 'shot in the dark' like an appeal to "I doubt because I've seen insufficient evidence that humans can't forget things." The point the potential holdout would have loved to have made -- if not under such pressure of time -- appears to be something like "Libby is a human, and that under certain circumstances humans can forget even the most amazing things. And I see several reasons for thinking that these were extraordinary times in the VP office., etc., etc.." Alas, a strong, clear majority who see the ridiculousness of this claim just the same, have agreed to exercise their collective power and not give endless time for perfecting the bullshit. Whether that is good or bad, meh.

ps. The other question the jury sent out today concerned a clarification of Charge I - the obstruction of justice charge. I've read several commentators this afternoon who interpreted this as an indication that either the jury is skipping around the charges (and therefore missing the forest for the trees) or that they're stuck even after so many days. Since I'm speculating, I'll wager that they've convicted (or will convict once "reasonable doubt" is settled) on all counts except Obstruction, and now have returned to it as the most serious and the charge that depends on the others. If they were going to aquit on all other counts II-V, would you really have a need to clarify the language in the overraching obstruction charge? And unless our single holdout digs in their heals, a guilty verdict on all counts comes back Tuesday early AM at the latest.