“Some of the law you might want to know to really enjoy Fitzmas”.

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Good Morning class. Today is the first day in our survey course entitled “Some of the law you might want to know to really enjoy Fitzmas”. This is a seminar course and I am sure you will learn far more from the comments in the threads than anything I could have to say, but isn’t that half the fun?

Today we will begin by discussing the phases of the trial. This is a jury trial which is the most formal and formulaic type of trial, because great trouble is taken to keep extraneous, confusing and misleading or distracting information out of the jury’s hearing and sight. Consequently a great deal of time is spent at “sidebar” conferences, which are conferences held with the lawyers and judge and the court reporter all huddled together at the bench whispering so the jury (and the rest of the courtroom) cannot hear what is being said.

Now there is no reason that the rest of the courtroom cannot or should not hear most of these arguments, it’s just the whispering so the jury won’t hear that prevents it. Judge Walton has already demonstrated that he believes the public has the right to know anything that is not privileged, classified or otherwise a secret, so instead of many bench or sidebar conferences, we may see the jury being sent out of the courtroom many times when the lawyers want to argue a point. This means the rest of us can hear the arguments. Yeah. This also slows down the pace of the trial, a lot. Booh.

Voir Dire

After a couple of days of great confusion on this point (because the orders on the docket sheet conflicted with the official court calendar), I have nailed down that jury selection will commence on January 16th. This is the first stage of the trial. In most federal trials the questioning of the potential jurors, also know as voir dire—which means “speak the truth”, is done by the judge based upon questions submitted by lawyers for both sides.

I checked the docket sheet for U.S. v. Libby, the attorneys for each side have already submitted their proposed voir dire questions to Judge Walton. In most state court systems, the lawyers ask the questions on voir dire and this is a powerful tool because you can vary your questions a bit and find out unexpected nuggets of information that may help you to target your approach to sway that juror, it is also a golden opportunity for each lawyer to begin to build rapport with the jurors. Consequently, lawyers in federal court often try to prevail upon the judge to allow them at least SOME direct questioning of the jurors, and judges often allow it.

U.S. District Court Judges have a handbook called the Benchbook for U. S. District Court Judges, which gives them advice on how to handle various things that can come up in the course of the trial. This is what it says about how the judge should handle the voir dire questioning of the jurors:

If the court conducts the entire examination, it should require counsel to submit proposed voir dire questions before trial to permit the court to incorporate additional questions at the appropriate places in this outline.

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trial--I hadn't thought about it. Do I gather from this that it's going to be taped? on radio? on TV? You say, "This means the rest of us can hear the arguments" (when the jury is sent out). What will our access be?

Also, are you being ironical when you say, "Judge Walton has already demonstrated that he believes the public has the right to know anything that is not privileged, classified or otherwise a secret..."? To the Bush Junta, EVERYTHING is "classified" and "a secret." I suspect that you are NOT being ironical, but I want to ask, to make sure.

Hasn't Fitz lost some motions on this--stuff HE wanted to remain classified, cuz Libby obviously wants to use it to muck up the issue of his lying and obstructing justice? So--that would point to Walton wanting things more open--maybe to avoid prejudicing against Libby, and giving him an appeal issue. What is the upshot of motions regarding "classified secrets," "national security" or whatever? What Fitz wants, what Libby's lawyers want, what Walton has done? I know some of it. Any recent developments? Any overall impression you've gained? What should be look for, as to document revelations?

"In big cases and in a case where there has been a great deal of pre-trial publicity and there is a fear that it will be hard to find a sufficient number of unbiased jurors, the voir dire process is often done in several rounds beginning with a huge pool or pools of prospective jurors, called the venire, and winnowing down to more manageable numbers for the final questioning. In those cases they begin by having the veniremen fill out a questionnaire designed to weed out those jurors who would be disqualified 'for cause'. Cause can be a number of things, but the easiest example would be if, by coincidence, the computer had included in this pool the brother of the accused, or of another participant in the trial.

"I have worked on a couple of cases like that. When I was law student I worked on one where the pool was so large and the “for cause” objections so numerous, that they had the potential jurors fill out these questionnaires weeks in advance and then hired a bunch of law students to code the replies and create a data base that ranked jurors by level of potentially objectionable responses. In this way the jurors were ranked on a continuum from clearly disqualified, through iffy, all the way to 'both sides will want this juror'.

"Strangely, considering all the media hoopla involved in the investigation, the word on the street is that jury selection is only expected to take a couple/few days.

"The current Scheduling Order calls for Opening Statements to begin 'immediately thereafter', so we could be looking at Opening Statements on January 22nd, or even sooner."

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I don't know--your brother could have it out for you! I've always thought "jury selection" to be a bit silly. I mean, I know we don't want to have an all-white jury for a black citizen accused of a crime--since we have such a long and ugly history of race bias and lynching. It is an overriding consideration. But, beyond that, I think these "consultants" who make so much money guessing at the views of potential jurors, from raised eyebrows and the color of their socks, are insulting to us voters, citizens and driver's license holders. Are we so stupid that we cannot rise above our life circumstances, and our particular political and social perspectives, to render an objective judgment of the facts? It seems a subversion of the jury system, to me--some kind of cultural side pool, where everything is determined by "focus groups" and "consumer tests."

to cover it. No TV coverage.

""The trial will not be covered live on television because federal courts do not allow cameras in the courtroom, so in order to do detailed coverage, we need to be there in person. Thanks to anyone who can help us to make that happen.""

http://www.firedoglake.com/2007/01/03/guess-who-is-going-to-dc/#comments

Of course, that's IMHO, but I base this on the idea that Patrick Fitzgerald won the vast majority of pretrial motions handily. He also demolished the "memory expert" reinforcing the existing memory expert the defense wanted to present on the stand, which was one of the things Team Libby was hanging their hats on -- proving memory lapse. The reason why the classified items Libby's counsel wanted brought into the trial was such a fight is because the defense was attempting to graymail the charges out of court in the first place.

There's also some fascinating stuff in the comments over on FDL this morning about jury selection, which will be the next big fight. DC is full of people who are familiar with security clearances or have them. They're not going to buy Libby's insistence that he was oh so busy that the cat ate his homework, he disclosed the identity of a NOC, etcetera. There's also some comment about the idea that those same jurors may not be of the same socio-economic strata as the Scootmeister, which will end up hurting him as well.

I'm hoping that the 15 media entities that filed suit last week to get audio feed of the trial are successful. I would be thrilled if it were in real time.

This should be fun.

:popcorn:
Julie
still president for life of the PFEB

Does anybody have any idea? Stuff that we ought to know, or stuff that he feels needs to stay classified just for the purposes of the trial?

It'd be great to see Libby get spanked, but wouldn't it be even better for the entire administration's dirty little secrets to get an airing?

in open court. The classified information would cause the case to be thrown out due to national security.

>It'd be great to see Libby get spanked, but wouldn't it be even better for the entire administration's dirty little secrets to get an airing?<

This trial has more than a bit of opportunity for some of those "dirty little secrets" to get aired due to questioning of witnesses.

Julie

I saw it while flipping through the channels and have already programmed the tivo to record.

Not 100% but i think the date in Jan 14th.

not ruled on the motions by media....Hope they do.