Originally, I told Christy this post was going to be about post trial motions, and I'm gonna cover some of those as well. However, of the last couple days I have noticed a tension building with respect to two different concepts and I think they deserve some discussion because I don’t want folks to get confused. That includes our good friends in the MSM who have taken to checking in here to check out their own take on the story. So, I want to take a moment to compare and contrast two, sort of, related concepts jury nullification and Judgment Notwithstanding Verdict (a/k/a Judgment NOV—it’s the Latin babay!)
Is when the jury when presented with facts that full support every element of the crime charged and fully believing all of the evidence presented by the Prosecution and fully believing that the quality and quantum of evidence submitted by the Prosecution is sufficient to convict on the crimes charged, nonetheless vote to acquit. WHHAATTT??? You say? Acquit! How could they acquit?
It’s like this pups: Sometimes the jury just doesn’t like the charges. It happens all the time in drunk driving cases where no one was injured and no property was destroyed and the driver was on the way home from a wedding or other celebratory occasion. Jurors all either have been there or have a loved one who has and think, it’s just because it was this driver’s bad luck to be pulled over. Even more so, if the guy was charged after he safely navigated home to his own driveway. It’s the no harm no foul jury nullification and, pups, it happens.
Or there is “the prosecutor is a tight assed prick with political ambitions and we just hate him type of jury nullification”, the defense tried that in both the Leona Helmsley and Martha Stewart cases, though without any noticeable success.
There are a couple other versions that I haven’t the space to go into, but the one that has been in play in this case is the “I can’t believe you are calling that a crime” version. I’ll give you an example from another case. In US v. Capasso former Miss America Bess Myerson was accused of giving a job to the bi-polar, otherwise unemployable daughter of the judge in her married lover’s divorce case as bribe to get the judge, who up until then had ruled in favor of Capasso’s wife in several key motions, to reverse course and rule in favor of Andy Cappasso despite the merits favoring the wife.
The government put on multiple layers of testimony proving every element of the crime charged, yet in a decision that stunned everyone in the courtroom that night, the jury unanimously acquitted. Press interviews with the jury members thereafter revealed that many of the jurors felt that trading favors for jobs happens all the time and refused to believe, despite explicated and repeated jury instructions that this should be a crime. In short, the jury confused their role and decided to substitute their judgment of what crimes should be on the books for Congress’s role in deciding what constitutes a crime. It didn’t hurt that the jury forewoman later revealed that she had gotten her government job from a “favor”, or that many jurors in a version of the “we don’t like the prosecutor” form of Jury Nullification did not approve of the Prosecution’s use of the testimony of the daughter in a prosecution of her mother, the judge accused of accepting a bribe in the form of the job for the daughter.
Team Libby has been pounding the “this should not be a crime” theme since day one. We have heard the “no charge on the underlying crime” mantra ever since the indictment press conference. Victoria Toensing and the Wall Street Journal have made a cottage industry out of this canard. Byron York’s latest piece for the Washington Post continues it up to the present time.
Judgment Notwithstanding Verdict
Judgment NOV may be new to all of you. You don’t hear about it in episodes of “Law & Order” and I can’t recall a “Perry Mason” episode ever mentioning it. The theory of Judgment NOV is related to a concept called a “Directed Verdict”. In this motion, the Defense asks the Judge to direct the jury as a matter of law that the evidence submitted by the Prosecution does not make out every element of the crime charged and that they MUST as a matter of law acquit the defendant. At the conclusion of the Summations, expect the defense to make this motion as a matter of form.
If the jury convicts, expect the Defense to make a motion for Judgment of acquittal Notwithstanding Verdict of conviction (a/k/a Judgment N.O.V.). The theory of a Judgment NOV can be the same as that for a directed verdict and/or it can be that the jury did not apply the facts in the manner which the judge instructed them to or that the jury did not apply the law in the manner the judge instructed them to.
This is why there was so much wrangling at the end of last week over the jury instructions and the verdict questionnaire. Not all cases use a verdict questionnaire. Some cases just have a straight up or down vote. In some cases a questionnaire is used so that the court and lawyers will know how the jury did their reasoning.
In this case, there is particular significance because the judge has ruled that one of the allegations in one of the obstruction counts was not proved up with sufficient specificity. Now don’t worry and don’t buy the spin that Babs Comstock is trying to make of this. The count in question had three lies alleged, any single one of which was sufficient standing alone to permit conviction on that count. So, even with the one allegation stricken as to that count, there are still two left; either of which is sufficient by itself.
Remember the total piece of genius misdirection Johnny Cochrane got away with during the Summation at the OJ Simpson trial? Remember “if the glove don’t fit you must acquit”? Horsefeathers! There was plenty of evidence in that case even if the gloves had never existed. Because Judge Ito completely lost control of his own courtroom and just caved and caved every time Cochrane started talking fast, Cochrane more than earned his fee by being able to make that totally unfounded argument.
Why do I bring this up? Because, there was a huge amount of wrangling at the end of the week both about how the jury questionnaire will handle this point and about the jury instructions. Look for the defense to be trying to fashion an instruction to the jury that says “just because the July 12th Judy Miller conversation is not sufficiently proved up, you shouldn’t consider it for count X” coupled with a possible Defense Summation that tried to confuse the jury into believing that if one Judy conversation is out that there is no way they can convict (don’t forget Ted Wells’ strange statement in his Opening that the only way the jury could convict would be if they violate their oath as jurors—I still cannot believe the judge did not ding him for that), to lead to a defense contention that some answer on the jury questionnaire somehow means that they considered verboten evidence or did not follow the judge’s instructions on the law.
I believe, though I have no actual information not in the public domain, that some of THE MOST IMPORTANT legal battles since the greymail/CIPA wars are going on over this holiday weekend. So, while you are off skiing, or going to those President’s Day sales at the mall, spare a moment for the out-manned, overworked, surely physically exhausted men and women of Team Fitz. I think they are sprinting to the finish while we are sleeping in or enjoying our Sunday Morning cuppa. So, here’s a shout out and good wishes to from the hometowners back in NY to Pat and all of Team Fitz.
Ooops. Almost forgot. Some other post trial motions you may want to watch for:
If Libby is convicted the Defense will almost certainly move to have Libby’s bail continued pending the appeal. If that motion is denied, they will then move to allow Libby to “surrender” on a date a couple/few weeks in the future so that he will have time to get his finances, etc organized. Libby has not proven a flight risk, so it is likely one or the other of these motions would be granted.
If the judge does not indicate that the gag order is lifted, one side or the other will probably make a motion to allow them to speak to the press. Cause you gotta know, either way, somebody’s gonna want to speak to the press.