Libby jury to judge: Forget we asked

updated 5:16 p.m. ET Feb. 28, 2007

WASHINGTON - Jurors briefly stumbled over some legalese in the CIA leak trial but before lawyers and the judge could craft an answer Wednesday, they said forget it and resumed deliberating, but at the end of the day, there was still no verdict.

The panel will resume deliberations on Thursday.

Jurors passed a note to U.S. District Judge Reggie B. Walton at the end of the day Tuesday asking him to clarify one of five charges against former White House aide I. Lewis "Scooter" Libby.

Attorneys for both sides proposed answers, but Walton said he was confused and asked jurors for clarification late Wednesday morning. But by then, they had moved on.

"After further discussion, we are clear on what we need to do," jurors wrote. "No further clarification needed. Thank you. We apologize."

The jury's original question offered the first clues about the deliberations. Since getting the case last Wednesday, jurors had asked no questions, merely requesting office supplies. Libby is accused of perjury, obstruction and lying to the FBI agents investigating the 2003 leak of CIA operative's identity.

"It's nice to know we could come to some joint resolution on this," defense attorney Theodore Wells quipped to prosecutors.

Jurors never emerged from their deliberation room, leaving attorneys to resume milling about the courthouse waiting for word of a verdict.

The note may indicate that jurors have made it through two of the five charges and are debating the third - or at least were debating it Tuesday afternoon. But there's no guarantee that jurors are going in order and reading juries is an inexact science.

Few clues emerge
In their note, the jurors wrote, "Is the charge that the statement was made or is it about the content of the statement itself?".

It is unclear that any insight has emerged on where the deliberations stand now from reading the juror's note, or their apparent ability to answer their own question and tell the judge they could resume deliberating.

"After further discussion, we are clear on what we need to do. No further clarification needed. Thank you. We apologize," they wrote after the judge asked them the specifics of their question.  The note was about Count #3 of the indictment which deals with what Libby's told the FBI about his conversation with former Time magazine reporter Matt Cooper, according to a note from the jury released by the court this morning.

Count #3 of the indictment against Libby states he: "did knowingly and willfully make a materially false, fictitious, and fraudulent statement and representation in a matter" to the FBI.

Libby told the FBI, according to the indictment, that during a conversation with Matthew Cooper of Time magazine on July 12, 2003, he "told Cooper that reporters were telling the administration that Wilson's wife worked for the CIA, but Libby did not know if this was true."

The indictment states that "Libby well knew when he made it, this statement was false." And, according to the indictment, Libby did not advise Cooper that he did not know whether this was true.

Libby faces up to 30 years in prison if convicted, though he would be likely to get far less time under federal sentencing guidelines.

The second week of deliberations
The group began deliberations mid-day last wednesday.

Most of Monday morning was consumed by deciding what to do about an art historian on the jury who saw or read something over the weekend about the trial. After interviewing her in private along with lawyers in the case, U.S. District Judge Reggie B. Walton ruled that "what she had exposure to obviously disqualifies her."

The judge let the jurors continue deliberating Monday with just 11 members after the defense endorsed that option. He overruled prosecutors who asked him to seat one of two alternate jurors who heard the trial and remain on standby.

Walton said he didn't want to "throw away two and a half days" of discussions the jury has had since getting the case at midday last Wednesday. If an alternate had been seated, the jury would have been required to begin its deliberations over from the beginning.

Libby, who was chief of staff to Vice President Dick Cheney, is accused of obstructing the investigation into the 2003 leak of the identity of CIA operative Valerie Plame, whose husband was a prominent Iraq war critic.

Walton never disclosed what the juror had seen, but he concluded the exposure was not intentional and resulted from a misunderstanding of his orders. He has ordered jurors to avoid media coverage of the case and to stay off the Internet.

The dismissed juror formerly served as a curator of prints at the Metropolitan Museum of Art in New York. She was also the only juror who did not wear a red T-shirt as part of the jury's Valentine's Day greeting to the court.

Avoiding a mistrial
Usually defense attorneys want the largest number of jurors available because they only need one to hold out against conviction in order to force a mistrial, said Lawrence Barcella, a prominent Washington defense attorney who spent 16 years here as a federal prosecutor. "This is surely a well thought out calculation for the defense based on the jurors they have, the way they guess the deliberations might be going, and who the alternate would be."

Ultimately, however, decisions like this are "guesswork, tempered by the experience and instincts of very experienced attorneys who have demonstrated good instincts," Barcella said.

Attorneys picked the jury of eight women and four men after asking them about their political views, their favorite television news shows and what newspapers they read.

Since beginning deliberations last Wednesday morning, the jury has issued brief written notes requesting a large flip chart, masking tape, Post-it notes and a document with pictures of the witnesses

The eight women and four men began deliberations late Wednesday morning and have issued only two brief written notes, which suggested they are methodically reviewing the evidence against the former chief of staff to Vice President Dick Cheney.

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