Jeralyn’s explanation of what the Libby jury might be thinking gave me flashbacks to The Dumbest Trial of the Century. Here Jeralyn explains what some of the “dumbest trial” commenters were too thick to grasp:

Scooter Libby is not required to prove he didn’t lie or obstruct justice. All he has to do is raise a reasonable doubt in the mind of the jurors that he did.

The test for reasonable doubt is not a simple weighing of the evidence, after which the jury decides which side to believe more. That’s the test in a civil case where the standard of proof is a mere “preponderance of the evidence.”

In layman’s terms, in a criminal case, if both sides’ theories and arguments sound plausible, that alone is a reasonable doubt and the jury should acquit.

To which a commenter astutely replied,

… in the end, a trial is not about “what is the truth” but rather what limits are there on the power of the state to take away liberty.

Toward the end, the “dumbest trial” comment thread devolved into my trying to explain “burden of proof” to an impossibly stupid commenter. In a criminal trial, the burden of proof is on the prosecution (the government, a.k.a. “the people”). The “dumbest trial” judge explained to us that, strictly speaking, the defendant didn’t have to prove anything. Further, criminal trials usually require a unanimous verdict. Obviously, the reason for this is to discourage the government from throwing citizens into jail on phony charges. In other words, it’s to put limits on the power of the state to take away liberty.

(The defendant’s lawyer in the “dumbest trial” demonstrated that at least some of the evidence against the plaintiff had been fabricated by one of the detectives. This screamed “reasonable doubt” to eleven of us jurors. Essentially, the guy who hung the jury was unable to wrap his head around the concepts of “reasonable doubt” and “burden of proof.”)

Jeralyn says that she wouldn’t be surprised if the jury acquits, because she could see how they might decide they have “reasonable doubt” of Libby’s guilt. And, of course, if the jury acquits, the Right will conclude the entire Joe Wilson Saga was a fantasy of the Left.

But, of course, this trial wasn’t about Joe Wilson or Valerie Plame Wilson or the Iraq War or the weapons of mass destruction. It was about whether whether Scooter Libby lied to FBI agents and the grand jury and thereby obstructed justice.

However the jury decides, I agree with Jane that the testimony had vindicated Murray Waas. If you want a roundup of the real issues, read Waas’s two most recent reports for National Journal: “CIA Leak Probe: Inside The Grand Jury” (January 12) and “Cheney’s Call” (today).

In brief: Dick the Dick is the instigator of the whole mess. Scooter was just following orders.

See also:For Liberal Bloggers, Libby Trial Is Fun and Fodder.”

8 thoughts on “Deliberations

  1. I wouldn’t be surprised if Libby was acquitted either..only because people are flakey.. It’s obvious that he lied. Libby effectively reduced serious charges of a national security breach down to perjury counts which he has a 50% chance to evade by facing prosecution with a guaranteed presidential pardon waiting in the wings to nullify the other 50% if it should come against him. To Libby it’ll be just an worse than a prostate exam.

  2. I think that the evidence presented by the prosecutor showed that Libby lied to the grand jury. And, I think the obstruction charge was proved also. But, I wasn’t there to hear all the stuff as it was told to the jury. That is basically the difference between being there in person and just reading reports about it. I think with the playing of the grand jury tapes showed the lies; and, he did not appear to be just not remembering things correctly. But, that’s just one old woman’s opinion.

  3. What I guess I don’t get is how a ‘faulty memory’ defense can be plausible when Libby clearly invented a whole exchange with Russert. Not recalling something–fine. Getting a few details wrong–okay. But this wasn’t hazy memory or omissions, this was a matter of affirmative representations that were completely false. Unless I’m missing something, that is.

  4. I have jury duty March 5. Gack.

    Last time I was on a jury was to determine damages in a simple accident with only 9 of 12 required to agree, which was hard enough. I was 19. Another older juror remarked — in direct violation of our instructions, of course — that he worried about where the defendant would get the money to pay, and that all lawyers are just in it for the money. I stated, “That’s cynical.” His retort: “You’re cynical.”

  5. To Swami.

    Hey, why be harsh at the “flaky?” We people think no two-snow-flakes are alike? Wrong. Some star snow flakes are never-two-same-same, true. But, in the molecular level world, nothing is ever the same-same identical, anyway. Take away one small molecule from a cumulus snow-Flake and it’s different. That’s not cynical, it’s fact. No two people weigh in in Life’s battle weighing or looking the same.

    So, Swami. I have no idea of what’s a better word than FLAKEY, either. Let’s repeat, No two people are the same. No two roses are identical. No two dogs are alike. All politicians are flakier, yep, your right? I think. I heard this discussion on a radio frequency.

  6. When Libby get’s off, I wonder if his verdit will resonant throughout america the way OJ’s did?

    I wonder if Libby’s freedom will cause angry and distrust of the legal system the way OJ’s did?

    I wonder if Libby’s acquittal by a mostly white jury, in that he is a white male being adjudicated in a mostly black city, will cause the public to disavow the jury system, the white americans did after the OJ trial?

    My guess is that it will not cause a commotion. Why, because of the kind of ratiocinations inferred in the above mention blog.

    Perhaps to paraphrase Mr. Dawkins, the activity should be called “The White Race delusion”.

    An people of color are fighting and dying in Iraq for what?

  7. I would like J. Black to know (before I revoke his commenting privileges, as I am about to do) that my red-haired, freckled, and U.S. Army officer nephew is in Iraq now.

    White racism is an ugly thing. So is black racism.I don’t put up with either one here.

  8. There is something that is seldom commented on and that is the presumed versus the actual burden of proof in criminal trials.

    If you had ever served as defense counsel and even more if you have ever served on a jury in a felony trial, and I’ve done both, you know something different than the traditional take on presumed innocence.

    There is a strong current of presumed guilt in felony trials. The jury is instructed endlessly about reasonable doubt, but they take their prejudices into the courtroom with them. And belief that “the police wouldn’t have arrested him if he didn’t do something” is one of the strongest.

    The belief that the authorities tell the truth is another. Despite the burden shifting to the prosecution, I think the real burden is on the defendant to knock some hole in the prosecution’s case so that the jury think he might actually be innocent, and it’s not always easy to do it either.

    Credibility contests tend to get resolved in favor of the prosecution. Not always or in all circumstances, but enough of the time.

    There’s a strong authoritarian streak in America and a lot of people think the government is always right.

Comments are closed.