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"Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns -- the ones we don't know we don't know." -- Donald Rumsfeld
Activities related to the jury in the Libby trial caused a bit of anxiety for the judge, prosecutors, and defense attorneys yesterday. At issue was a juror who had been exposed to information regarding the case from a source other than the court proceedings. There was concern, fanned by the cable network coverage, that this created a likelihood of a mistrial. Let's take a quick look at some of the knowns and unknowns.
The juror in question has been identified as: {1} Juror # 1473; {2} as an "older" white woman; {3} as having "dyed blonde hair (Fox News); {4} who grew up in New York City; {5} who has a doctorate in art; {6} who was employed "for years" as a curator at the Metropolitan Museum of Art in NYC (NY Times); (7} who moved to Washington DC; {8} and who did not join the other jurors in their Valentine's Day fun.
We know: {a} that she read both the NY Times and the Washington Post twice per week; {b} that she did not watch NBC's "Meet the Press"; {c} that she had claimed that she had formed no opinion regarding Libby's guilt or innocence; {d} and that she could put aside anything and everything she had read or heard in the news if she were to be a juror in this case.
We know that yesterday, the jury foreperson contacted Judge Walton to alert him to a concern; we believe that concern was that Juror # 1473 had been exposed to outside information over the weekend.
Judge Walton met with the prosecution and defense teams; they then evaluated the situation, including Juror # 1473 and then the rest of the jury, to determine the potential contamination caused by 1473.
Juror #1473 was dismissed. When meeting with the other 11, he determined that there was no contamination. There was one humorous moment, when Judge Walton asked, "Let me just ask, before you go back, whether any of you have kept yourself isolated from any outside information in this case?" All 11 raised their hands. Judge Walton said he meant they should raise their hands only if they had been exposed to outside information. Everyone laughed, and all 11 jurors put their hands down.
Patrick Fitzgerald requested that Judge Walton add one of the alternate jurors, to keep the jury at 12. This would have required the court to instruct the "new" jury, and to have them re-start their deliberations. He said they would be in "dangerous territory" if they lost another juror.
Teddy Wells stated that "it would be inappropriate and unfair" to force the jury to start again. He said it would be "prejudicial to Mr. Libby," and added that, "It's not like by going to 11 we're on the cliff to some mistrial."
Judge Walton said, "I don't think it would be appropriate to throw away those two and a half days. I don't have anything to suggest that this jury is anything but conscientious and can continue."
The federal laws allow a judge to continue a case with 11 jurors. If another one is lost, the judge needs the agreement of both the prosecution and defense to continue with a jury of 10.
There is speculation as to why Team Libby prefers to have 11. In general, a larger jury provides an increased chance of a "hung jury." Thus, a number of people believe that MSNBC's David Shuster is correct, that the defense had noted from the first alternate juror's "body language" that she did not believe Teddy Wells when he delivered his closing statement.
Neal Sonnett, the former president of the National Association of Criminal Defense Lawyers, said, "The lawyers are always looking at who that person would be. And they are engaged in a little mind-reading, trying to guess from that person's body language." And former prosecutor Guy Singer said, "At very least, it probably means that Fitzgerald liked the alternates and Wells did not."
At this point, it remains unknown exactly what information the dismissed juror had been exposed to. There is speculation that it may have been a Washington Post op-ed that had disinformation on Valerie Plame's status, and a personal attack on Mr. Fitzgerald. Had the information been an attack on Libby or Dick Cheney, it is believed that Teddy Wells would likely have argued that the risk of jury contamination required a mistrial.
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