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(Photo by REUTERS/Jonathan Ernst via Yahoo.)

One of my favorite posts from FDL's trial commentary was Pachacutec's Who's Your Daddy. He wrote:

A trial is a complex thing.  There's all the evidence, rules of evidence, legal stuff and rules for jury deliberations, but anyone who has interviewed jurors after a trial (and I have) knows that it's often the unpredictable elements, the very human elements, jurors hang on to and remember.  As I watched opening statements this week from inside the courtroom, as preoccupied as I was with taking notes of the competing arguments, I was also most attentive to the ebb and flow of human energy, the little looks and asides, the personalities and the dynamics of people and perceptions, as best I could read them, drawing on my experience and my doctorate in psych.  I want to share a little of what it was like to be in the courtroom, through my perceptions of how the players came across.

Here's the thing:  in my view, the three dominant personalities in the room – Pat Fitzgerald, Reggie Walton and Ted Wells – are all engaged in a complex game of "who's your daddy?," both among themselves and, perhaps most especially, for the jury and the media.  Think of it as an alpha male American Idol for the jury and the public, where the ultimate prize is the jurors' trust and confidence, with public perception a very close second.

I love the post partly because I always find Pach's insights into human dynamics so fascinating. But also because it really did describe what was going on in the courtroom in early days–a battle to see whether Wells could take over the courtroom, Fitzgerald could stop him, or Reggie Walton could find enough Solomonic decisions to keep the trial moving forward, however ploddingly.

Yesterday's close was about many things. But most of all, it seemed to be the resolution of all these tensions in an unexpected way.

Only it all got started by someone who never figured in these calculations of alpha male dominance. You see, one of the most important moves of the day came when Peter Zeidenberg stood up and said to the jury:

Defense didn't have to give opening statement. On behalf of defense, Wells elected to give opening. He painted different picture, told you about WH conspiracy to scapegoat Libby. Effort to make LIbby into sacrificial lamb so that Karl Rove would go free. You've heard witnesses testify, you've heard witness after witness, you've heard them testify about one or another conversation with Libby about Valerie Wilson during the time period that Libby claimed he had no memory of Wilson's wife. You heard Russert testify, take an oath and say he never spoke to Libby about Wilson's wife. In direct contrast to what Libby claimed. Now did you hear any evidence about a conspiracy to scapegoat Libby? If you draw a blank, it's not because of a problem with your evidence. [It's because the defense never proved their argument that there was a WH conspiracy against Libby.]

It was an important point because the Defense never proved this point–it never brought witnesses like Andy Card and Scottie McClellan and Dan Bartlett and Karl Rove himself they would have needed to prove their point. More importantly, it got under Wells' skin.

You see, this kind of accusation is precisely the kind of thing that would get under an alpha male like Ted Wells' skin–particularly if the accusation rings true. He couldn't let the accusation lie there because it would suggest to the jury that he hadn't proven his larger case. But he couldn't let it lie because it would damage his own ego. So rather than launching right into the prepared closing statements, rather than summoning rage for Scooter Libby, his purportedly aggrieved client, Wells started by summoning his own rage. The most remarkable thing about it was his voice. It was higher pitched than the voice of his rage persona. And he stopped breathing–his voice became pinched and forced. This was real rage, but it was rage in the service of Ted Wells, not rage in the service of Scooter Libby.

By getting under Ted Wells' skin, Zeidenberg managed to do two things. First, he exposed to the jury what Ted Wells looks like when his emotions are real, rather than a schtick adopted in the service of the client. And critically, he goaded the Defense into using 20 minutes of their alloted time defending themselves, rather than Libby. And for the rest of their closing, they were racing to catch up. Wells was flipping through PowerPoint slides just glossing over the content. He announced he was taking time from Jeffress, who apparently looked up with a forced smile to hide his anger. As Wells went over his time, Jeffress more openly seethed. Then he, too, went over his alloted time. 

By goading Wells into a response, Zeidenberg sowed real animosity between Libby' defense lawyers, whose each clearly believed only he could save the day (IMO, Jeffress might have been able to do so, but not Wells).

All this came to a head with Wells' last words. You see, Wells really does have a schtick, one that the journalists who have seen him before all recognize. He finishes the rational part of his case. Then he spends the last 20 minutes or so summoning rage for his client. He brings all the emotion summoned for his client to a crescendo. And then he weeps, demonstrating clearly to the jury how deeply he believes that his client has been wronged.

But remember that 20 minutes that Zeidenberg goaded Wells into wasting? Well, it meant that Wells had no time to get into character, and he went immediately from a rushed but rational argument about memory into his emotional appeal.

Don't sacrifice Scooter LIbby for how you may feel [about] war in Iraq or Bush Administration. Treat him the way he deserves to be treated. He worked every day to be NSA for this country. Analyze it fairly. Fight any temptation for your views if you're Democrat whatever party. This is a man who has a wife [and] kid[s]. He's been under my protection for the last month. Just give him back. Give him back to me, give him back.

Followed by an abbreviated choke, a catch of his breath. Without the crescendo, it sounded more like a death rattle than any truly felt emotion. And compared to the real rage Wells had shown earlier in the day, it looked fake. Utterly, completely fake. 

Because Wells reacted to Zeidenberg's barbs, he showed the jury true emotion that made all his elaborate schtick–the thing that Wells does best, normally–look like an act.

Which set Fitzgerald up perfectly.

Fitzgerald stood up and, with his voice raised for almost the only time in the trial, yelled,

Madness! Madness! Madness!

Followed by:

Outrageous! [in mock outrage] The govt brought a case [about] 2 phone calls. And they just want you to speculate. [now with quiet, rational  voice] The defense wishes that were so. Saying it, Saying it loudly, pounding the table, doesn't change the facts.

Fitzgerald took Wells' mock outrage and mocked it right back. Not only did his judicious (ha! like that word) use of emotion grab the attention of the jury in a way that Wells' sustained faux outrage no longer could. But with just a few words, Fitzgerald managed to belittle the entire argument the Defense had been making.

But Fitzgerald wasn't done with reappropriating Wells' schtick. After doing a number of things with his rebuttal–finally establishing Valerie Wilson as a person, getting weedier than I have ever been, countering Jeffress' "Perry Mason moment" with his own, accusing Cheney of obstructing justice–Fitzgerald returned to his explanation of why obstruction was so important. He wasn't yelling, like Wells had done. Rather, he used the same barely controlled outrage voice he used in the press conference where he announced charges against Libby. His voice cracked, as it had before.

And he flipped Wells' outrage on its head. Rather than Libby as the aggrieved party, he put the American people in the role of aggrieved party. He picked up Wells' language about what Scooter deserved, and asked, "Don't the American people deserve the truth?!?!?!" Then he picked up Wells' language about "giving Scooter back" and flipped that too. 

If as a result his wife had a job, she worked at CPD, She gets dragged into newspapers. People want to find out was a law broken when people want to know, who did it. What role did Defendant play. What role did VP play? He told you he may have discussed this with VP. Don't you think FBI desesrves straight answers. When you go in [that] jury room, your commonsense will tell you that he made a gamble. He threw sand in the eyes of the FBI. He stole the truth of the judicial system. You return [a guilty verdict] you give truth back.

It perfectly mirrored Wells' argument: Faux outrage, Real outrage; Libby and his family, Valerie and her life; Give Libby back … or give the truth back.

No better way to put this trial–you can give Libby back, or the American people can have the truth back. Wow.

But never forget–it was all set up when Zeidenberg, not on anyone's radar as the alpha male in this trial, forced Ted Wells to defend himself, rather than defend Scooter Libby. 

I'm running out to dinner and packing–but wanted to share this at FDL since a lot of folks at DKos and TNH liked it a lot (and bc I'm talking Pach up). Hope to be in the comments shortly.

Related posts:

  1. Danger Is Not Doom: The Madness of the 11th Hour
  2. The Taxpayers Paid Dick Cheney’s Personal Defense Attorney to Obstruct Any Inquiries Into His Crimes
  3. Cheney’s Lawyer Already Leaked the Content of Cheney’s “Privileged” Interview
  4. Mikva Spins Fitzgerald’s Spinning Lincoln Right Back
  5. Cheney’s Betrayal Made an IIPA Charge for Libby Possible