On the general vs the special verdict form, I would think Libby would want the special verdict on the perjury charge. Right after the Indictment came down, I wrote:

From a legal standpoint, I don’t like Count Five. Why isn’t it duplicitous – charging two or more offenses in a single count, thereby violating the defendant’s constitutional right to a unanimous jury verdict?

The count alleges that Libby lied to the grand jury on both March 5, 2004 and March 24, 2004. It alleges in separate sections that Libby lied to Matthew Cooper and to other unnamed reporters. What if at trial only six members of the jury decided he was guilty of perjury on March 5 and the other six decided he lied on March 24? In that event there would not be 12 jurors who agreed he lied on both dates. What if the trial jury decided Libby lied when talking to Cooper but not to other reporters? How could they return a single verdict on that count?

A special verdict form would have the jury specifying the statements it unanimously agreed were false. I think it protects the defendant. But, I may be missing something since it seems like it was Ms. B. who was arguing for it and Libby who was arguing against it. How can they complain on appeal the jury wasn’t unanimous if they oppose a special verdict?

Marcy, if I’m talking about a different count than you live-blogged on, I’m sorry, just ignore this.

What happened was that Libby wanted the SVF only for the Obstruction charge, Fitz wanted it for everything. I think Fitz wanted it so that if the jury agreed that (for example) two of the Russert allegations in charge 3 were false, but one was overturned on appeal, the second would remain valid, as would the guilty verdict and the obtruction conviction, if any, depending on it. Whereas if there were not SVF, then if Libby got one alleged false statement overturned, they could argue the whole charge fails–and/or get a second shot at a jury. Fitz is trying to build in solidity into his charges, Libby is trying to build in ambiguity to increase the chances that any appeal will muddy the waters for all the charges.

Marcy asked “As if someone exposed to Kingpin and narcotics conspiracy act, but only told about Kingpin [Jeralyn, you want to explain that one?]”

I think he’s referring to (and I’m going just by your notes since I wasn’t there today):

There are different ways of violating the drug laws. One is by being a kingpin (continuing criminal enterprise under 18 usc 848) which requires that there be a series of drug violations that were undertaken by a person acting in concert with five or more people over whom he had control or supervision, and from which he made a lot of money. It would be like only telling the jury about the kingpin statute and not that it was also a crime, although a different one, to sell drugs.

I think the parallel Fitz is trying to draw is that in Libby’s case, the IIPA is one crime, but there are other crimes relating to disclosure of classified information that also were part of the scope of the grand jury investigation. He wants the jury to hear about these other crimes as part of his motive argument, especially since Libby was advised of them at the beginning of his grand jury appearance. He doesn’t want the jury to think Libby was only afraid of the IIPA charge. That would be like a drug dealer only being afraid of the kingpin charge when even if he hadn’t committed that one, he knew there were other drug crimes he could be in hot water over.

Marcy, does that make any sense?

Yeah. That’s kind of what I understood it to mean, but since Fitz used an example that I’m sure you’re an expert on, I thought I’d appeal to you to explain.

Now, the whole idea that Cheney was behind the outing comes along. I think, “How does this relate to the family feud?” Now, after reading about Matalin (former Cheney aide) getting Scooter to out to Russert as a way of establishing a time-line, it makes me think Matalin might’ve been working the other side of the street, doing this thing for Dubya & family (in an Italian mafioso kinda way) to have Russert ruin Scooter’s defense, thus pointing the prosecutors to Cheney. And, that might lead to Cheney’s downfall — benefitting Bush.

The Bush family MO isn’t to hand out pardons, just the promise of a pardon. Ask Noriega and Saddam if they don’t still feel the knife in their backs. When Dubya pats ya on the back you know he’s just looking for the soft spot to put a knife.

Nope, I don’t think Cheney did it. Why would he? He may be vile and nasty, but he’s not stupid.

I think it was suggested to him that he should look into Joe Wilson (knowing what he’d find) and to throw Valerie “Valkyrie” Wilson under the bus, using a handful of doofus hoodlums (Rove, Libby, Armitage, Fleischer and perhaps others) to out her. Then, when the wheel turns, Cheney’s turn comes and he can’t point to George or anyone as having ordered him to look into Wilson or to trash him by outing Valerie. He’s stuck.

I can imagine the conversation after that:

Cheney: George, I know you want me out. I know you’re not gonna pardon me or testify for me or anything. George, you’re a real son of a bitch.

George: Heh heh.

Lovely people.

Pach, is this what you were talking about? It sort of jumped out at me. But I guess what Fitz is concerned about is that if Libby’s state of mind factored in only IIPA, maybe he wouldn’t have been afraid of being in violation (it being a difficult statute to apply). But if other statutes were a possible violation, and Libby would be aware of those, then that would go toward a worried and guilty state of mind… and Fitz does not want jury to wrongly deduct that Libby’s fears could be allayed by discovering IIPA would not apply to this particular leak, and therefore his state of mind not that of a someone who wants to lie.

Am I getting this right?

From a legal standpoint, I don’t like Count Five. Why isn’t it duplicitous – charging two or more offenses in a single count, thereby violating the defendant’s constitutional right to a unanimous jury verdict?

The count alleges that Libby lied to the grand jury on both March 5, 2004 and March 24, 2004. It alleges in separate sections that Libby lied to Matthew Cooper and to other unnamed reporters. What if at trial only six members of the jury decided he was guilty of perjury on March 5 and the other six decided he lied on March 24? In that event there would not be 12 jurors who agreed he lied on both dates. What if the trial jury decided Libby lied when talking to Cooper but not to other reporters? How could they return a single verdict on that count?

A special verdict form would have the jury specifying the statements it unanimously agreed were false. I think it protects the defendant. But, I may be missing something since it seems like it was Ms. B. who was arguing for it and Libby who was arguing against it. How can they complain on appeal the jury wasn’t unanimous if they oppose a special verdict?

Marcy, if I’m talking about a different count than you live-blogged on, I’m sorry, just ignore this.

I think he’s referring to (and I’m going just by your notes since I wasn’t there today):

There are different ways of violating the drug laws. One is by being a kingpin (continuing criminal enterprise under 18 usc 848) which requires that there be a series of drug violations that were undertaken by a person acting in concert with five or more people over whom he had control or supervision, and from which he made a lot of money. It would be like only telling the jury about the kingpin statute and not that it was also a crime, although a different one, to sell drugs.

I think the parallel Fitz is trying to draw is that in Libby’s case, the IIPA is one crime, but there are other crimes relating to disclosure of classified information that also were part of the scope of the grand jury investigation. He wants the jury to hear about these other crimes as part of his motive argument, especially since Libby was advised of them at the beginning of his grand jury appearance. He doesn’t want the jury to think Libby was only afraid of the IIPA charge. That would be like a drug dealer only being afraid of the kingpin charge when even if he hadn’t committed that one, he knew there were other drug crimes he could be in hot water over.

Marcy, does that make any sense?

they are heroic……..

one day i was leaving the market and forgot about $100 i had just gotten from the bank, was doing my budget in my head after i left the market……………and was ahead, and hadn’t included the 100………..drove back to the market, tucked it into art’s pocket, he was getting ready to go to palestine, and told him to spend it however he needed to……….money well spent………….i still think of mesopotamia and what it was………..and i think of rumi……….one of my favorite writers. he says it all………love…………..and more love………….and love……………

i wish we would get the hell out of there………..

i think sometimes that it isn’t the same country that my brother gave his life for………..i hope that it is…….but i wonder……and i write letters……….

birthday thoughts, the most important kind, surrounded by love, and free to think…….

http://www.cjr.org/issues/2005/5/judycode.asp