wellslibby.jpg

(Photo by AP Photo/Pablo Martinez Monsivais via Yahoo.)

There are certain themes and classic techniques that the Defense bar takes advantage of at Summation. Some call them old chestnuts. Some treat them like the works of Shakespeare.  

Among the themes you will usually hear from the Defense is often a discussion of reasonable doubt. The usual jury charge judges give says something along the lines of “beyond a reasonable doubt is not beyond all doubt. It is the level of certainty you would use in making a serious decision in your own life; buying a house, choosing a job, planning an education.”  The Defense’s job is to confuse the jury about the standard “beyond a reasonable doubt.”  A well done Defense summation will cause a juror to believe that if they have any sense of hesitation or if they have any question that they cannot point to or infer an answer for, that must somehow rise to the level of a reasonable doubt.  A skillful lawyer does not do this in a stark black and white kind of way, but rather just a “thumb on the scale.” Shifting the result just a bit in favor of his client. 

Remember, the Prosecution has to convince ALL the jurors in order to win, the Defense need only convince ONE juror in order to get a hung jury which gives him a re-trial. Yep, a do over. 

Another theme that you may very well see in a case like this is the Defense taking a shot at jury nullification. Jury nullification occurs when the jury sees that the facts are as the Prosecution said they would be, the law is as the Prosecution believed, the Defendant is clearly guilty, yet the jury will refuse to do its duty and convict.  My experience with  jury nullification involved a jury who clearly believed (or so they said in the post verdict press interviews) that the Defendants were guilty of the crimes charged and that the government had presented sufficient evidence, however they felt that the underlying criminal activity (in this case giving someone a patronage job as a form of a bribe) was so commonplace that it ought not be a crime. The jury forewoman actually said that “everybody does it” and that she had gotten her own job through “a favor.” Consequently, they refused to vote to convict because they thought the crime shouldn’t be a crime.

Emptywheel has an intriguing theory about how jury nullification may play out:

Throughout this trial, Wells has stated that Armitage and Rove were the leakers, in spite of the fact that Libby, too, had a conversation with Novak in plenty of time to leak Plame's identity and in spite of the fact that Libby clearly did his share of leaking. In dealing with Ari, Jeffress clearly suggested that Ari should be charged with perjury for not admitting that Pincus is his source. Fitzgerald has charged that this is an attempt at jury nullification. That is, he is suggesting (and it's a very serious charge) that Team Libby is trying to get the jury to believe that it was wrong for Libby to be charged and that, in spite of all the instructions they will get about the seriousness of obstruction and lying, he should not be found guilty. Fitzgerald is suggesting that Wells is planting the notion that, since Armitage is the big leaker, Libby shouldn't go to jail. Or that, since Ari didn't face charges, neither should Libby.

IMO, there is a big risk this will be successful. I have no idea what Wells will say in his closing statements, but he's sure to bring up Armitage and Rove and Ari again. Add in Wells' statement that "the only way my client is found guilty is if you violate your oath," and I think Fitzgerald's harsh charge is totally fair. Wells appears to want the jury to find Libby innocent because of all the bright shiny objects out there. After all, they only need to pick off one juror. 

Of all the classic Defense Summations, my all time favorite is something called “The Scottish Verdict Summation.”  I have no idea if it correctly reflects the laws of Scotland or not, but it goes something like this: 

In the United States we offer juries a choice from only two verdicts: guilty or not guilty. In the United States the not guilty verdict does not exactly equal a verdict that the Defendant is innocent.

In Scotland, juries are offered a choice of three possible verdicts: guilty, innocent and not proven. It is the not proven verdict that I wish to focus your attention on. By voting “not proven” the jury says, ‘we may believe that the Defendant committed the crime charged, but we believe that the Prosecution has not met its burden here in this court.’ 

The Defense will then launch into a litany of investigation techniques that the government did not employ, witnesses the government did not call, exhibits the government did not try to offer into evidence. 

Then the Defense will finish off something like this: In this country we do not have the luxury of the three verdict system. We fold in together the innocent verdict and the not proven verdict into one verdict we call “not guilty.”  If you believe that the Prosecution has not met its burden here in this courtroom, regardless of whether you believe the Defendant is innocent, you are required by your oath, to find that if the case is not proven the Defendant is indeed not guilty. 

Done well, the Scottish Verdict Summation can be very effective. Although it is old hat to lawyers, it is fresh and new for jurors.  

My personal guess, this Defense’s best hope is jury nullification, perhaps along the lines that Emptywheel envisions. Its fall back position is to work for a hung jury, because in that case Libby lives on to fight another day in the “do over” trial.

Related posts:

  1. All Charges Against Blackwater Guards in Nisour Killings Dismissed
  2. Fort Hood Shooter’s Trial May Shed Light on NSA/CIA Domestic Spying
  3. The Taxpayers Paid Dick Cheney’s Personal Defense Attorney to Obstruct Any Inquiries Into His Crimes
  4. Scott Roeder Found Guilty of First-Degree Murder
  5. If You Believe Guantanamo Makes Us Safer, You Should Have Been Here Today