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Walton's responding question (in response to the question on reasonable doubt) and his answer (in response to the Cooper question) is online now–thanks to Jeralyn for grabbing it for us. Here's his reasonable doubt response (and this may answer some qusetions about supplementary instructions a few of you were discussing earlier–that is, there isn't one):
The instruction on reasonable doubt is the most detailed language I can provide you on what constitutes reasonable doubt. I request you re-read the reasonable doubt instruction and consider all of it in your evaluation of what amounts to reasonable doubt and what the government's burden of proof is in proving guilty beyond a reasonable doubt.
As to the second part of your question which reads "Is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilty beyond a reasonable doubt," I do not fully understand what you mean by "humanly possible." If you can rephrase the question considering the language I gave you in the reasonable doubt instruction, I will assess whether I can provide further guidance to you.
It was a narrow win by Fitz to get that "humanly possible" question in there–according to Jane, Fitz looked pretty bummed when Walton was leaning against that. Don't blame him of course–it seems like a simple "no" might get us out of here and home to our dogs sometime this week!
FWIW, the instruction Walton gave to the jury reads:
Reasonable doubt … is doubt based on reason. … Reasonable doubt is the kind of doubt that would cause a reasonable person, after careful and thoughtful reflection, to hesitate to act in the graver or more important matters in life. However, it is not an imaginary doubt, nor a doubt based on speculation or guesswork; it is a doubt based on reason. The government is not required to prove guilt beyond all doubt, or to a mathematical or scientific certainty.
As to the Cooper question, he says they can consider "any and all portions of Mr. Libby's grand jury testimony" to answer the question. That strikes me as a Solomonic baby–Fitz was not allowed to point to the passages in question, but neither was Wells allowed to limit it to the narrow language in the instruction. Since they have those passages marked in charge 5, they should be able to find them reasonably easily.
The jury should be back from lunch now–if Jane's back, then they have to be too, I say. But we haven't heard from them. Maybe they decided to auto-instruct again, since they never seem to get much help from Walton.
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Pat Fitzgerald!!
Madness! Madness! Madness!
Any clues from the demeanor of the lawyers? Seemed fairly civilized this morning.
annx @
3
I think Jane’s working on a post on that now. I will say–Wells did not avail himself of the opportunity to get a look at the jury today. Maybe he didn’t like what he saw on Thursday?
Guilty guilty guilty! Fitz! Marcy!
emptywheel @ 4
How could he have gotten a look at the jury?
Wells can’t be happy with the response to Question Two. Judge Walton has opened up the entirety of the grand jury testimony, rather than limiting the jury to the precise conditions recited in paragraphs 32.b and 33.b of the indictment.
More explanation for my point of view, text of the indictment, etc. here.
Marcy: are they still wearing jeans? suits please, convict the traitor and send him to jail this week.
Thank you again Marcy for your dedication to the Plame issue. And I hope you got lunch too!
If the question about “humanly possible” was just seeking confirmation of what the jurors understand, Walton’s “non-response” will probably be enough. If there really is a hold-out operating under a misunderstanding of the reasonable doubt standard, we should get another question pretty soon.
So silence is probably golden.
She said as she fingered her rosary….
Christy – Thanks for your response to my reasonable doubt instruction question above. Kind of in and out of the mix here today due to nagging priorities like actually having to do actual work; hate that. For what little it is woth, contrarty to a lot of commenters, I found the jury’s question on reasonable doubt kind of encouraging. If their only question in this regard is effectively “does it require human certainty”, then they must not have very much doubt about Libby’s culpability, and that is a good thing. (Copied from terminal EPU status at bottom of last thread).
Walton: Please do not use a double negative when sending your clarification. It hurt my head and the heads of our readers at fdl. Thank you.
Have the deliberations lasted longer than the trial? Sure seems like it.
there is clearly a holdout
there is someone hanging on to “it’s not humanly possible to know skooter did not remember” and therefore they are making believe the have some kind of excuse to declair resonable doubt
me thinks this jury is now humg…and if so, it was hung before it even began
AZ Matt @ 9
I’m on an all caffeine diet today. Didn’t sleep much last night.
I swear, if sleeping were a school subject I’d still be in the first grade.
One juror bought the friggin memory defense- and is claiming that Fitz didn’t prove that it was impossible that Libby forgot- so wingnut wants him set free- and the rest of the jury wants to convict BOTH Libby and the wingnut.
Maybe Walton could just give them back the original instructions with a few words HIGHLIGHTED.
:)
Litigator mom at 9, good point.
I think..
Judge Walton wants to be careful with his language. The way the question was asked, it seems that a ‘yes’ or ‘no’ will finalize the jury and their decision will be based on Walton. He does not want to be responsible on this level of syntax, and I think it is professional that he does not simply answer ‘yes’ or ‘no’.
pwrlght @ 6
Walton asked the teams if they cared whether he instructed the jury in chambers or in the courtroom. They said they didn’t care, afaik.
With the permission to explore all of the GJ testimony, I hope the jury doesn’t find themselves overwhelmed by the desire to make sense of the whole sordid thing. IOW, if we thought they were lost in the weeds last week, this may not help them find a way out anytime soon. Plameology, as we all know, is addictive and time-consuming.
Thanks to all of you for your hard work.
The instruction in Count One does not have the narrowing language that appears in the indictment. In other words, I don’t see Walton’s answer as “splitting the difference” between opposing sides. Once he opens up the review beyond a few passages, as defense asserts is correct, he is giving ground to the prosecution. The most ground he could give would be “the whole of the transcript,” and this is what he gave. All Fitz was trying to do was save them the trouble of paging through all of it, but that’s a minor inconvenience give a word index.
Will Judge Walton’s response to the reasonable doubt question satisfy the jury?
The instruction on reasonable doubt was reproduced in the Gray Lady last Friday. I posted it to a thread here, subsequently. It was my view then that the judge would merely direct the attention of the jury to that portion of the instructions to them. Someone had a theory at the time that the jury, by this question about reasonable doubt, was informing the defendant that the jig was up. If that was indeed the case, there’s no sign said defendant took the cue and ran with it.
rwcole @ 16
I say it is humanly impossible to buy the memory defense in this instance. If there is a holdout, he/she is only passively-aggressively pretending IMHO.
I like this from bmaz downstairs -
cboldt @ 21
I’m not sure my liveblog was clear, then. He came very close to just leaving it as it, implying that the burden for the obstruction charge was the same as for Count Three (the language of which it parallels). Jeffress wanted that, but was happy to have the “use the whole transcript” thing.
Does that make sense?
someone get
emptywheel a bagel. just the thought of an all caffiene diet makes my stomach hurt for you. oh wait on second thought, someone would have to feed it to you too, while you type..oh man. Let the one hold out on that jury use a wee bit of common sense. We want the verdict NOW. and we want it to be just. hope scootie putootie looks good in orange.
ptrig @ 12:
Jurors used the double negative in their question, not Walton.
Patrick Fitzgerald !cboldt @ 7
It looks to me from Marcy’s first post today that Walton was actually following a suggestion from Wells himself in opening up the whole transcript, though perhps that was a fallback position on Wells’ part.
But he certainly must be more pleased with that resolution than with what the government wanted.
kml @ 22
there is clearly a holdout…it’s obvious the jury has “likely” locked down, there is someone holding on to the notion that “reasonable doubt” means the government has to prove with no doubt
I surely hope I am wrong but this looks like a hung jury
Jeff @ 30
Thank you. Yes. that’s what I meant.
How the f*ck did we get from “reasonable doubt” to “humanly possible” to begin with? Things seem bogged down with the latter.
Jury’s question was not really a question- it was a plea for help in dealing with a hold out who is being unreasonable. Libby only needs one and it looks like he got Him/Her.
We don’t know that the jury is hung at all. We also don’t know, if it is hung, if it’s on one or more counts. A 10 – 1 or 9 – 2 vote to convict would confirm our sense of how compelling the evidence is and Fitz would retry it.
emptywheel @
15
Does ambien either not work for you or give you a hangover? If the latter, I find that on the occasion that I need it, half a pill is often just enough to get me to sleep, and that’s all it takes …
EW @19
Thanks!
I see the response to the second question as a win for the prosecution. I am also glad they got inthe “humnaly possible” language b/c Walton’s original position would only have confused the jury further.
Marcy honey, get yourself something solid in your tummy. You may need all your stamina today.
Biodun @
28
Sorry, I was putting words into Walton’s mouth.
rwcole @ 34
So far. In my experience, a request for a reasonable doubt clarification in a case with long deliberations usually leads relatively quickly to a conviction.
rwcole @ 34
I think you’re right — would the Allen charge help here?
Biodun @ 33
that’s the point, someone is claiming “it’s not humanly possibly to know skooter is lying”
they have converted “reasonable doubt” to “humanly possible”
scary stuff here
sdf (Stu) @ 36
Nope. Ambien doesn’t work. Nothing works. Back when I was in cancer treatment, they tried everything, and short of turning me into a sleeping pill addict, nothing worked. I chose the “nothing worked” option and have stuck with it ever since.
The good news is it means I can keep up wiht blogging on Asian trips. The bad news is, I get really batty at times.
hound
We’re in the “wearing down” process now. Usually one holdout finds it VERY difficult to continue in the face of a determined jury–but I’ve seen it happen.
looseheadprop @ 38
I will shortly. We put a gigundous bottle of white wine into the fridge today, on the off chance the damn jury will give us a verdict. Since I’m going to have to drink for Jane, I had better get somethign solid in my stomach.
Tequila works, trust me. The major drawback is finding your clothes the next morning. *g*
ok, my prediction;
jury comes back wed. claiming they are hung
the judge tries on more time to redefine, the jury gives it one more day then we hang on friday
and oh, my contempt for lieberman is without bounds
perris @ 48
rwcole @ 45
Not an expert on juries, but I smell a compromise. They will get the holdout to convict on some charges, but probably not all.
tequila works- until 3 am- then yer screwed.
emptywheel @ 15
Marcy,
Melatonin is an all natural sleep aid that is readily available at supermarkets or drugstores. It works great for me. Also, make sure your sleeping space is completely dark, turn your blinking digital clock or anything else away from you. I can’t imagine that you could be any sharper even with more sleep.
rwcole @ 34
I think that’s right. The conversation in the jury room got to and reamined at “humanly possible.” To get off the dime, they kicked it to Walton. I’m guessing (again) the response will help the jury get the juror back on track.
musicsleuth @ 41
Allen Charge would help a lot
At first I read “auto-instruct” as “self-destruct.” I hope that’s not an omen.
I agree with rwcole 34: 10 jurors are essentially asking Walton to convince a holdout because they can’t seem to. Maybe will will get an Allen charge out of this.
perris do us a favor PLEASE…give it up already.
Thanks!
EW:
A couple of Benadryls at bedtime works for me. It doesn’t knock me out but it keeps me drowsy enough to fall back to sleep when I wake up during the night.
emptywheel @ 43
try a little valerian tea.
looseheadprop @ 54
normally I would agree…on this case though, the holdout is clearly going to use “humanly possible” as their protocol instead of “reasonable doubt”
the allen charge will do nothing to those that drink the koolaid
I am certainly worried
Maria
Could be I guess, the longer they deliberate- the more they have invested- and the more difficult it will be to finish this thing hung- they want something to show for their work. It gets tougher and tougher for the holdout.
Franco @ 56
ok franco, I think you’re right, I am being far to pessimistic
I’ll lighten up…I hope I am wrong
… Marcy, we could try the Ferber method on you…
Red wine works for me just fine.
Pat_AlexVA @ 62
yeah, Plame House is “the crib”.
Bustednuckles @ 46
I think I expired my lifetime supply of tequila in college, thank you. I taught my entire freshman dorm how to drink tequila shots (I lived in San Diego at the time and spent a bit of time in Tijuana). So from that point until graduation, we got together every Thursday for tequila drinking.
Actually focused on getting some work done this weekend so I didn’t see this until just now. Apologies if, as likely, it’s already been pointed out.
A great piece by Jamison Foser at Media Matters called Whatever you wish to keep, you better grab it fastbegins
Empires in decline never seem to realize the fact.
rwcole @ 50
Same thing with me. I go right to sleep after a couple of Margaritas, then at 3 am… DING… time to get up and get ready to go.
off for a few hours, hopefully the jury comes back with convictions
see all later
Jon Kabbat Zinn writes about “Sleep Stress” in “Full Catastrophe Living”. he likens it to not being able to let go
Zinn
I only mention this becuase I don’t sleep well, don’t drink so that’s not an option, but I try not to fight it when I can’t sleep. Warren Zevon hit it when he sang, I’ll Sleep When I’m Dead!
carmen @ 52
No, seriously, when I say nothing, I mean nothing. Melatonin sometime helps me adjust to time zones. But sleep? Neh.
rwcole @ 16
It will be difficult to persuade the wingnut. He is bound by an ideology that says Libby is a righteous dude no matter what he did.
Perris,
Didn’t want to tempt the zig.
I think the Allen Charge could help b/c the snarkiness of the “humaly possible” line suggests that the rest of them have ganged up.
The Allen Charge says, if you are in minority you must hold yourself open to being persuaded by majority.
It’s hard to be a hold out when the others are not respecting your position. With some hng juries the side voting for conviction is VERY solicitous of the holdouts and ar essentially enabling the holdout.
Here, it sounds like they are looking for Walton to help them smack around the holdout’s last argument.
Boy! I had to drink a lot of tea to get so many tea leaves.
Really, none of us have any idea
So silence is probably golden.
She said as she fingered her rosary….
Okay, I’m either in love with litigatormom (which means Mrs. Lost is gonna kill me) or I’ve just had my sagging faith boosted a bit after last weeks’ San Diego Diocesan Chapter 11 fiasco re: the abuse scandal. Hooray for another Catholic with a conscience!!!!
Maybe the next time they ask for post it notes, we could slip in a pair of thumb screws?
Five Levels of Drinking
emptywheel @ 65
What is it with woman rugby players and tequila?
The only tequila I have ever drunk in my life was at after game parties. Worms, Blech!
emptywheel @ 65
I’ve given up tequila, too. Except when I don’t. But then I never remember it.
The defense has had a steady theme regarding instructing the jury “as the indictment reads,” and pointing to narrowly specific conversations as “the only thing charged, and the only thing we need to defend against.” The first cut of proposed jury instructions out of Fitzgerald did NOT (repeat NOT) reference the specific Russert, Cooper or Miller conversations recited at Count One of the indictment. The defense went ballistic (see part II.B). Well, this is the same situation, except instead of referring to all three reporters, now it is just in the context of Cooper.
Now, all Wells and Jeffress lost was a second bite at the jury instructions apple (the instructions given by Walton don’t have the limiting language of the indictment, but do limit the obstruction to Libby’s descriptions of Cooper and Russert conversations), but they lost it just the same.
loosehead
Yeah sure we don’t know- but we’ve got little do do here now but to speculate- and I think you nailed it.
looseheadprop @ 76
That’s Mescal not Tequila.
At first I couldn’t understand why Walton couldn’t simply answer the ‘humanly possible’ question, but on further reflection I can see why he is being very careful. The reasonable doubt standard means that it is up to the jury to make a judgement call. Part of that judgement call is to decide exactly where the line of reasonable doubt lies. If they had used a term like ‘absolute certainty’ it would have been safe to answer, but then there would have been no need to ask or answer since his original instruction covered that clearly. Humanly possible is just sufficiently open to interpretation that if he answered the question as asked it could be construed as helping the jury decide where the reasonable doubt line was, which would be grounds for appeal. Obviously, he’s done this before ;)
rwcole @ 79
I thought I smelled something…
emptywheel @ 65
What is there to teach? You pours yourself some tequila, you shoot it down the hatch! None of this other crap for show…
;0)
emptywheel @ 15
I have never heard insomnia so well described. Sorry you are no good at the sleeping thing. It makes everything a little harder.
My wild half-arsed guess is that is is the matematician or at least an analytical type that wrote the note. And likely, he or she would have preferred a simple no or yes answer. The question was set up for just such a response. It seems likely that there is a holdout on the jury, a more emotion based person who doesn’t really understand REASONABLE doubt since that person may not function primarily by reason.
So, the qustion was composed to elicit a response from an authority (judge) that would convince the juror that proving something was beyond human capability was not necessary for a reasonable person to conclude that Libby must have lied.
Now, instead of being able to say “See, I told you so.” the jury is going to have to parse the meaning of “humanly possible”. Hopefully, the mathematician will rephrase the question to make it much clearer that they are seeking a yes or no response, and they can nudge the holdout along.
Marcy – I’ll chime in as well, since I am married almost 20 years to Sleep Disturbance King -
pitch black room
eye shades
kava kava washed down w/ warm milk
Senator James Webb up on CSpan 2 about his Iraq bill.
So much to do, there’s plenty on the farm
I’ll sleep when I’m dead
Saturday night I like to raise a little harm
I’ll sleep when I’m dead
I’m drinking heartbreak motor oil and Bombay gin
I’ll sleep when I’m dead
Straight from the bottle, twisted again
I’ll sleep when I’m dead
Well, I take this medicine as prescribed
I’ll sleep when I’m dead
It don’t matter if I get a little tired
I’ll sleep when I’m dead
I’ve got a .38 special up on the shelf
I’ll sleep when I’m dead
If I start acting stupid
I’ll shoot myself
I’ll sleep when I’m dead
So much to do, there’s plenty on the farm
I’ll sleep when I’m dead
Saturday night I like to raise a little harm
I’ll sleep when I’m dead
emptywheel @ 44
I’m sorry to hear that, ew, that’s really hard. Thanks doubly, triply, for the yeoman’s work that you do here. We are all very much in your debt.
perris @ 42
They were asking whether Fitz had to prove that it was “not humanly possible” — i.e., impossible — for Scooter to have forgotten that he knew that Plame was a CIA agent. At least, that’s how I read the question.
The answer to that question is clearly “no” — Fitz did not have to prove that it was impossible for Scooter to forget. However, it is not enough for Fitz to have proven that it was more likely than not that Scooter remembered. (That’s just a “preponderance,” i.e., 50% plus, which is the civil standard of proof, not the criminal standard.)
What constitutes “beyond a reasonable doubt” cannot be reduced to a percentage, the way “preponderance” can.
Kinmo at 57 -
Yup – 2 Benadryls and 2 Tylenol does it for me. Melatonin and other things haven’t helped!
perris @ 31
After following along for the past few weeks this is my first comment.
I served on a jury where all we had was circumstantial evidence to a burglary. It came down to one juror who was reluctant to vote guilty because of what she perceived as reasonable doubt. It was only after reviewing all the evidence together and showing how the preponderance of evidence in total proved the defendant guilty, did she finally vote guilty.
In that situation, I would not characterize her as a holdout just someone worried about making the wrong choice. I know I had told her near the end that if one of pieces of the evidence was missing, I would have voted to acquit but together they just made too strong a case.
Bottom line is some people take longer to commit themselves even if they think it may be the right thing to do.
Did Libby’s Lawyer’s Botch His Case
Tequila is truly the Devil himself. I had a brief and almost deadly bout with it in college.
looseheadprop @ 76
Mine was unrelated to rugby. Tequila was for my future politico friends. Cheap beer for rugby.
And when I played club? I stayed pretty sober at those parties, given that I was more
manwomanhandled at those parties than I ever was in co-ed functions!KathieinMN @ 91
Benadryl totally wires me. Black beauties used to slow me down and nebutals kept me up all night. . .go figure!
lina @ 58
Sometimes I take a little Nyquil, even if I don’t have a cold.
Reading (or referring to) standard jury instructions is not being unhelpful; these jury instructions have been worked over for ages and have withstood the test of time (and appellate courts), and giving them such is a way to avoid potential avenues for appeal (and possibly, reversal and retrial).
Cheers,
bdu @ 83
You would be incredibly surprised.
Had an attorney/corporate executive boss who rewarded me and outside counsel by taking us to his club for martinis and dinner. I’d earned something besides a flipping martooni, so I asked for a shot of Cuervo. Cheese-on-rice, I got a tiny snifter of chilled and strained Cuervo Gold on a little doily on a plate. Damned near screamed, but I managed to simply roll off my chair in gales of laughter, crying before I finally calmed down. The look on my boss’s face set me off, along with his genuinely naive question, “What’s wrong? did you mean on the rocks?”
raven @ 88
Ahhh, the late great Warren Zevon!!
KathieinMN @ 91
I turn on my TV to Law & Order reruns and set its timer to turn it off in an hour. Haven’t seen the end of an L&O rerun in years. I’ve been doing this since the time when Perry Mason was on in the after-11pm slot.
litigatormom @ 90:
Thanks. The double negative in their question is intentional, no? Double negatives always confuse. You have to work harder to understand.
The issue in the jury room is the obstruction charge. It requires the jury infers motive for the lying and perjury the jury decided Libby did. The charge requires the jury adds 1 plus 2 plus 3 plus 4 because there is no direct evidence as to the obstruction, other than the lying and purjory. The bstruction charge rests on circumstantial evidence.
It’s good news the jury kicked the question with the phrase ‘Humanly possible’ to the judge. The answer will get them back on track.
Proving something is not humanly possible is proving a negative. Reasonable doubt requires a reason. The jury will have that club over the decending juror(s).
I was sitting in the Hollywood Hawaiian Hotel
I was staring in my empty coffee cup
I was thinking that the gypsy wasn’t lyin’
All the salty margaritas in Los Angeles
I’m gonna drink ‘em up
And if California slides into the ocean
Like the mystics and statistics say it will
I predict this motel will be standing until I pay my bill
Perris, get a grip. You are making yourself koo koo. Think positive, take a deep breath. All will be fine.
[Mod Note; Please only nest 2 or 3 quotes at a maximum. Any more may break the margins. Thank You.]
rwcole @ 34
I think you’re right.
The phrase “humanly possible” sounds like it was written by someone opposing the view held by another juror. Which would support the wisdom of Walton’s response.
If Walton were to respond that reasonable doubt does not require human impossiblility, then it would simply back the holdout juror(s) into the corner of arguing that’s not what they meant.
Far better for Walton to induce a discussion of the phrases ‘humanly possible’ and ‘reasonable doubt’ among the jurors, than to support the wording of a question that appears to be prejudicially phrased.
Does that make sense?
And folks: alcohol and drugs don’t mix. *g*
zig alert!
(Delurks)
Marcy,
Have you tried Lunesta (one of the newer sleep meds, along with Rozerem)?
grrr….I have to go do work type stuff and cant check anymore till tonight.
here’s hoping there will be ‘politics tv.’
i’ve been waiting for something decent to watch ever since ‘they’ cancelled ‘barnaby jones.’
So we’re waiting for the jury to respond to the judge’s reply to their questions?
Biodun @ 107
Yes, always do one before the other, never together.
Bustednuckles @ 46
Really? I find the major drawback is wondering who the person is that you just woke up next to.
Uh, I mean “heard” not “find”. I’ve never found myself in that position. Nope. Nosiree, Bob.
JGab
Yes- there may be a matter of psychology at foot- but Walton is mostly trying to avoid reversal on appeal of the biggest case of his life. If he does ANYTHING to tip his hand as to what he thinks the jury will do- it’s bye bye Miss American Pie.
The jury must have found guilty on some of counts 2-4 to even be considering count 1, wouldn’t they?
Froomkin’s up now.
ew~
As Highly Functioning as you are, you are probably getting the sleep you need. Maybe if I started starving myself for sleep I could do one quarter of what you do!
So we have two Pat’s in VA? Yes. Or a verdict.
JGabriel @ 113
You heard from reporters that you had done that?
rwcole @ 114
And why would he be so worried about being reversed? Only if he expected a conviction
Geez, the “reasonable doubt” definition seems so straight forward. You don’t need a calculated probability or odds. You don’t need a theorem or law like E=mc^2. It can’t be made up like “what if he went into a black hole right after he spoke to Cooper?” and it can’t be speculation like “well, he probably spoke to Cheney right after and that just drove Cooper right out of his head, fiddle-dee-dee.”. What’s left?!
Is it possible that 8 people remember these conversations and the anger and desperation that went with them and he merely forgot, or is he lying?
Duh.
On CSpan2 Senator Webb just finished and got applause from the gallery for trying to introduce a bill that will force Bush & Co to come to congress before starting a war with Iran.
Probably the best solution in Iraq is “Start Over”.
Get out of the country- and start the invasion all over again- and do it right this time. Get rid of this abortion of a govt. the Bush rammed down the Iraqi’s throats. Get rid of the botched constitution that Bush forced the Iraqis to ram through without adequate discussion- etc.
He’s forced the Iraqis to give the appearance of progress at the expense of progress.
The issues that they could never reach agreement on are the same issues that are killing them now- and Bush forced them to postpone dealing with them-
And so it goes….
empty, I have a friend who is 55 years old and looks 35. She has never slept more than four hours a night in her life. She has the energy of a teenager. Some people are just lucky that way. I’d love to have those extra hours to accomplish something.
eCAHNomics @
101
Oh, yeah – I forgot to mention I turn on Talk radio timed for 30 minutes – and never hear it turn off. Of course, it doesn’t help if it is Randi Rhodes ranting away! Then I have to change stations! (I like her – but she definitely is not to try to go to sleep by!)
Are the jurors wearing break-a-way-leisure-suits?
Could be today!
carmen @ 121
That’s my senator!! Would that we could clone him.
Melissa Lafsky | Posted Monday March 5, 2007 at 01:35 PM
The jury’s been locked away for eight days now, popping their heads out to make unsuccessful requests for dictionaries and even losing one of their number to the gaping jaws of “media exposure.” In the meantime, CNN reports that presiding judge Reggie Walton has released a memorandum opinion clarifying for the record that he feels the defense has acted to mislead both himself and prosecutors. Specifically, he charges the Libby lawyers with fostering the idea that their client would take the stand during months of closed-door court hearings, and notes that this presumption figured strongly into his decisions to admit or deny classified material throughout the trial. The judge also suggests that Libby’s team could have upped its chances of acquittal had it called Vice President Dick Cheney to the stand.
At this point, the odds are looking pretty good for a guilty verdict – though given the defense’s near-assurance of filing an appeal should they lose, it sounds like Wells could get his wish to have his client back. Assuming he’s hired again for the second round.
JGabriel @ 113
Here’s my personal tequila recipe:
Desperado
1 jigger cheap tequila
1 box of school box fruit juice, any flavor
ice
Fill glass with ice. Pour in tequila and juice. Stir with finger. Try to enjoy.
rwcole @ 44
Are you a lawyer?
Teresa @ 123
That’s what I’m talkin bout, sleep is overrated!
If we go beyond humanly possible, then we are in the realm of the inhuman or unhuman, ie. poodles and kitties. Anyone polled the inhumans, the undead?
Pass the kibble and convict!!
raven @ 96
Lots of sleepless people here. Me too. I just bought some tryptophan. It is newly back on the market after many years banned because of a bad batch.
It is what makes you tired after eating turkey.
I’m optimistic after a few nights.
PunchPrincess @ 130
My dogs ain’t unhuman!
JIM. WEBB. THANK YOU!!!
‘Reclaims the historical Constitutional role of Congress in foreign policy’ etc.
Calling Bush’s bluff on Iran, looking straight at the camera. Beautiful words to hear.
And audible APPLAUSE (!) from the public gallery as he concluded…
I only caught the end of his presentation (thank you carmen for the heads up), but oh man, did it sound promising.
Loosehead-
Yeah I think you can conclude at least that Walton thinks conviction is a good possibility.
I think they’ll convict too- but they’re in the middle of a painful process- where everyone’s tryin their best but it looks impossible.
If they just keep talking- odds are pretty good that the holdout will give up- through fatigue if nothing else.
On Saturday CSPAN showed both Senator Obama’s address to Selma’s Brown Chapel AME Church in Selma, AL and only a few blocks away Senator Clinton’s address at the First Baptist Church. I don’t think Hillary was very pleased when one of the largest rounds of applause she received came from dropping Senator Obama’s name.
dab
Nope- but I’ve been on juries—and dealt with holdouts.
I suggest chasing tequila shots with a stick of Juicy Fruit gum. Yum ^_^
hackworth @ 71
Caution: we don’t know the holdout, if there is one, is a wingnut. It might be someone who is merely misguided, or who has a black & white mindset that is uncomfortable with the grey area of ‘reasonable doubt’, or is simply reluctant to sentence anyone to jail time unless the prosecution meets a fairly high standard of ‘reasonable’.
OTOH, it could be a wingnut. But we don’t know, and won’t know – if ever – until after the jury reaches a verdict.
Pat_AlexVA @ 117
Haha – I’m in Norfolk. I’ve posted a few times before, but mostly just lurk.
Empty – was gonna include how I use Einstein for Dummies and it works everytime, but hell, you may have written it
Dear Lone Hold-Out Twit:
If the defense was shit,
You cannot acquit!!!!!!
Dear God, my poor heart and mind can’t take much more of this!
Hope all you praying FDL-ers are praying like thunder right now!
From the Texas Eagle, linked by Froomkin’s column, on Tony Snowjob’s appearance at the George Bush Presidential Center for Presidential Parents of Presidents Who Don’t Read Good:
There you have it. The media is essential to our democracy because it is a medium to bring the president to the public. Just like campaign ads….
Rayne @ 99
Nah, I’ve seen some pretty hillarious crap accompanying tequila, so I wouldn’t be surprised. But no amount of training wheels or froo-froo presentation will make bad tequila better.
PEOPLE I HAVE BAD NEWS FOR YOU – IF THE JURY DOESN’T UNDERSTAND WHAT A REASONABLE DOUBT IS THAN THIS GUY IS GOING WALK – IT ACTUALLY MEANS DO YOU AS A REASONABLE PERSON DOUBT THAT THIS PERSON THE ACCUSED HAD TOO MUCH CRAP ON HIS MIND TO FORGET SOMETHING AS IMPORTANT AS OUTING A CIA AGENT – AFTER HE WENT OUT OF HIS WAY THREE TIMES TO TELL REPORTERS THAT THIS
PERSON WAS ACTUALLY A CIA AGENT – AND AFTER IT WAS HIS BOSS WHO HAD TO HAVE GIVEN HIM THE OK TO BEGIN WITH?
THE DUMBING DOWN OF OUR EDUCATION SYSTEM IS COMPLETE!
Not at all. That little pickled worm is quite an interesting guy.
****@ @ 108
How old is it?
Honestly, though, I’ve just given up. I just need to maintain a lifestyle where I can work for several hours at night and then sleep.
pow wow @ 134
Webb was, well, just what a United States Senator ought to be. I’m fighting a deadline, too much to do, and trying to only glance at the Lake. But I sat mesmerized throughout his speech.
145: Please, don’t shout, everybody can hear you.
litigatormom @ 120
I heard it from a reporter who said all the reporters knew it. And I was surprised, as if hearing it for the first time.
When I was waiting in the hallway of the Barrett Prettyman courthouse last week one of the conversations that I had with one of the regulars at the Libby trial was about the jury process that she had witnnessed early on.
She shared that she was so impressed with each individual interviewed by Walton for jury duty. She said that each person had a deep understanding at honoring the judicial process, and being honest about whether they could be impartial and honest about the trial. I was moved by her story and the integrity of each individual that she described.
If only Libby and his crew (Rove, Armitage, Fleischer, Cheney) had that same kind of integrity.
Oh yeah Libby would not have five counts against him if he did.
ptrig @ 135
I listened to both speeches live on CNN. Thought they were both quite good. Obama’s delivery was superior, but doesn’t play well in the soundbites. You needed to be there, otherwise the clips that I’ve heard sound hysterical. He played really well to his audience and, like Kennedy & Catholocism, Obama hit the “I’m not Black enough” meme head on. Expected Hillary to fall flat, as she’s no orator. But she did a yeoman’s job. Although her point about benefitting from civil rights seemed a bit pandering, I resemble it. Was 2 years ahead of her at WC, and my career wouldn’t had been as good as it was if civil rights hadn’t happened in the 60s.
A ROMAN @ 146
Libby was so busy that he had time to spend with Tom Cruise…Now that is busy…
kathleen @ 152. Hi Kathleen!
After all this talk about tequila, I’ve decided to take a shot everytime I roll a “No New Comments” when I click on the refresh comments button.
Finally got a minute to post. I don’t agree with the argument that I’ve seen in some comments and posts that it’s the math person who’s the hold-out. It’s someone who tends to make their decisions by how they “feel” that’s stuck.
Fact oriented people, such as scientists and mathematicians, are trained to understand the limits of measurement: there’s always some uncertainty and you must decide what level of estimation is acceptable. In science the “significant figure” in calculations identifies the uncertainty. Consider for a moment, the amazing number Pi. If mathematicians couldn’t handle ambiguity they’d never be able to perform calculations.
So, why is it a feeling type? Because they’re being asked to use their reason to make a decision, not their preferred mode of deciding things. They realize the enormity of ruining a person’s life by putting him in jail and their emotions make them afraid and less likely to trust their reason.
My two cents.
oh man, I may not make it until five *urp*
Elliott @ 156
Find an old thread, say from four days ago. You should be good to go. ;-)
Elliott @ 155
Ha. Not sure that is a good idea in EPU territory.
When I couldn’t sleep, back in college days, I would pick up my biology text and I was out like a light.
I agree with Rwcole (as usual). There is at least one holdout against a guilty verdict on one or all counts. ONE holdout will be persuaded by the rest of the jury to change his/her mind.
My fear is that maybe there are TWO holdouts that are affirming each other. If that’s true, a hung jury is likely in my opinion.
Gnome de Plume @ 159
That must be my problem–I gave up math and science in high school.
litigatormom @ 144:
Benighted people don’t know that media is plural for medium. The most common error is when people in general use media as a singular.
ReneND @ 160
Geez, it’s good you said that, or I woulda missed the new thread and been found later lying on the
bedroomcomputer room flooremptywheel, one word: hydrate.
p.s. and thanks overimmensely for all y’all do
-
Elliot, even though I’m at the office, can I play, too? Actually, I’ve already had four shots.
I am SO fired.
Marcy, did you see my question at 115? Am I reading this wrong?
I had 3 shots of tequila once and was later caught peeking in my own windows.
A small fan and listening to the drone of the Weather Channel (local version) works well for me.
ptrig @ 137
I didn’t see clinton ,and only saw the first half of Obama. However, the thing that struck me was this normally articulate, Harvard educated eloquent man, dropping all the final consonants from his words–all faux folksy.
It was demeaning. To him and to his audience. This is a well educated erudite man trying to sound like a sharecropper. I was surprised at how offensive I found it. Too Steppin’ Fetchit.
For the love of Mike! Haven’t we come further than that in this country?
You people are making me laugh!
And I do agree…bad tequila is yuck. Good tequila is sublime – in moderation :)
John Casper @ 75
Ah, a gem from comedian Larry Miller, another proud Amherst alum.
Marcy, I hope you sleep like a baby once the verdict comes in. Who knows? That may be the magic pill.
These jurors are asking the question every thoughtful juror should ask. Check out the article at http://law.bepress.com/expresso/eps/881/ ,
which includes a survey of 130 people’s interpretation of “reasonable doubt.” Read it and weep. The standard has a serious legal flaw and cries out for clear definition so jurors will not have to go through this ridiculous confusion.
Please pass the tequila.
mc @ 167
but it was SO fun!
maybe not SO worth it, though, eh?
lectric lady @ 169
707!
looseheadprop @ 171
I thought the same as you at first. But as I listened more, I got into it. It fit the setting. It may not be right for you & me, but perhaps the man knows his audience. I was also put off by the stretched biblical theme at first, but then he developed it well.
lectric lady @ 169
Did you see any gnomes?
emptywheel @ 163
What usually works for me is doing a sudoku puzzle. Not a crossword – anything verbal can be too engaging. But something about the non-verbal mental process of sudoku is very relaxing at the end of the day.
Walter Reed hearing is over. 5 1/2 hours after it started.
They are going to replay the first part in a few minutes.
Pinched this from FOX, so no link – but here’s the subject of the legislation Senator Webb just introduced in the Senate:
Okay, my take on things is this.
If the bulk of the jury is dealing with one or two holdouts they will:
a) go back over the instructions again and point out that there is no language in there that deals with requiring that the Prosecution prove that the the defendant couldn’t have done something to the degree that it was not “humanly possible”.
b) Then they will point out that Judge Walton doesn’t even have a clue to what “humanly possible” MEANS! That it’s not something that is in the legal framework at all…if Judge Walton doesn’t even comp[rehend what that juror is talking about trying to use such a standard.
In other words they can point out to that juror that they are avoiding following the law and the instructions; that their decision is not based upon “reasonable doubt” but “no possibility” or “impossibility”.
I think that they’ll continue to hammer that point home…and we’ll simply have to see if that juror backs down from their effort at “Jury Nullification”.
JGabriel @ 178
No. Damn! I knew I should have had a 4th!
MSNBC reporting that Cheney has been diagnosed with a blood clot in his leg
It looks to me like the audience here is finding faces in the carpet, puppies in the clouds and divinations in the chicken bones.
We’ll hear from the jury soon enough. Until then, drink your tequila, do some work (absolutely!) and try to breathe.
emptywheel @ 147
Yeah, consulting for folks in a west coast/Pacific Rim time zone is perfect, isn’t it? ;-)
Although I hate the gigs where one starts with Europeans at 4am EST and ends with mid-morning/midday China…ugh.
everhopeful @ 184
IIRC, he’s had trouble with the back if his knees. Surgery on the arteries there. Sometimes he uses a cane, but he thinks it makes him look more like The Penguin.
everhopeful @ 183
What a surprise…especially after all that flying around last week, probably working on DVT.
Nicely timed to coincide with the verdict.
hackworth @ 188
Is that possible?
Nuts, I didn’t realize Jane was upstairs, been waiting for someone to say that.
Pic reminds me of an old stage trick…watermelon, watermelon, watermelon…
raven @
69
Very good point. Of course it indicates a person needs to do serious analysis to learn to let go. For a faster physical remedy, I would suggest detoxing the liver. That’s where we hold our anger/angst/unresolved emotions. (and no, it doesn’t have to be anything big… just life stress). For that, I bet taking a couple of Thisilyn aka Milk Thistle Extract in the mornings. It really clears the liver and allows the rest of the body’s bio processes to function efficiently. Resulting in more sleep. From my experience. Try it Marcy!
Arne Langsetmo @ 98
Walton did the right thing by refusing to answer the question as put. Regardless of what exactly triggered that question, the jury was clearly asking him to refine the standard of reasonable doubt, even if just a little, by ‘ruling’ whether or not humanly possible was reasonable. If he had attempted to answer he would have been injecting himself into the deliberations which would have become an exercise in parsing and interpreting his every word as some people parse and interpret the Bible to find whatever they are looking for. If there are one or more jurors who believe being a Republican constitutes reasonable doubt, then it is up to the jury to out them, for better or worse. Any help from Walton would be grounds for an appeal or mistrial.
Elliott @ 165
Ever dry docked the worm on your tongue?
JGabriel @ 178
The last time I drank Tequila to abuse was 35 years ago, B.C. (before children) All I remember was puking my guts out in the snow while a dear friend tended to me. My two dogs stood just below my head as I heaved and all I could get out is “why they eat my puke”?
Oh those carefree stupid times.
Hey Neil…if they do not sock it to Libby I will lose what little faith in this system that I am stupid enough to be hanging on to.
The term “humanly possible” is less susceptible to precise definition than reasonable doubt. The outer limits separating what humans can do from what they cannot depend on an as yet unknown number of variables. To ask if it’s humanly possible to forget something is to ask an absurd question because memory abilities vary from person to person and I’m not sure that scientists understand enough about memory to know where the improbable fades into the impossible in any given person, including themselves.
If someone claims that they forgot something, others evaluate the probability that the person is being truthful by examining several factors including, but not limited to, the relative importance of the matter they forgot and the amount of time passed since the forgotten matter occurred. Lawyers refer to these considerations as circumstantial evidence.
Direct evidence is I saw, I heard, I felt, etc. Circumstantial evidence consists of inferring that something happened, or didn’t happen by assessing the probability based on personal experience. Contrary to what many believe, circumstantial evidence generally is as reliable as direct evidence and, occasionally, it may be more reliable. There is a stock jury instruction to this effect in every jurisdiction in which I have tried a case, and I suspect that Judge Walton included such an instruction in this case (does anyone know?).
Perhaps, the holdout(s) juror is confused about the value of circumstantial evidence and believes that nothing can be proven beyond a reasonable doubt, if it is based on circumstantial evidence alone. Only a few jurisdictions in this country adhere to such a rule. Federal courts do not belong to that club.
emptywheel @
148
Emptywheel, do you still have your ears on?
When you say you’ve tried everything, do you mean that you’ve tried ingesting everything? — pills, sleep aides, etc? What have you tried about looking at whatever it is that you do in the 3-4 hours before you want to sleep– what you eat, drink, or do. For example, consuming anything with caffeine in it after supper will keep a lot of people awake (including me.) Also, alcohol is NOT a good sleep aid . Seems like it oughta be, but it ain’t.
Finally, —and maybe this is the real culprit– as much as we’d like you to, do NOT work on Libby trial matters in the two hours before you want to sleep. You’ll get your mind in overdrive, so when you’re trying to sleep, you’ll instead be going over and over again something that’s stuck in your mind about it. When you want to sleep, best to do something pleasant but not cerebral– like playing with a puppy, or a kitten, or listening to the surf, or crickets chirping, or whatever calms you. Plus maybe mr. emptywheel saying comforting words like “Let it rest, Marcy; you’ll figure it out tomorrow!” or whatever mr. ew can say or do that is soothing and calming for you.
Learning how to relax is an important life skill! Now, everyone, BREATHE! :-)
Bob in HI
eCAHNomics @
177
I saw the last part of Obama’s and all of Clinton’s. Linguistically, they both have a tightrope to walk. If Obama had used Harvard English, he would have been perceived as talking down to them. (”I’m better than you. I learned how to speak honky.”) I was listening to see how far he went into the cadences of Jesse Jackson or MLK, and he went there a little way, but came off sounding genuine (to me.) Linguistically, it was an “I’ll meet you half-way” speech, and I think the tone was appreciated. In fact, I think he can go a bit further towards Jesse Jackson cadences, and be even more effective. He did use a nice trick: He characterized the present generation of Black Americans as the “Joshua generation.” That was a stroke of genius, and helped the audience bond with him.
Hillary sounded too much like a foreigner. Towards the end of her speech, her audience was receptive to some call-and-response, and I think she sensed that and tried to respond to it, but it didn’t work all that well. I don’t think it worked negatively; she just couldn’t saddle that horse and ride it.
I don’t know how Bill Clinton does it, linguistically, but he has a charisma with Black Church crowds. I think part of it is his laid-back style (Hillary is NOT laid back. She spends too much time in New York.) And I think Bill has a more natural response to an audience, feeding on their attention and feeding it back. Hillary has that with White audiences, but it didn’t look like she has it as much with Black audiences.
Bob in HI