February 22 - Scooter Libby and Jury Nullification

Today will be day two of jury deliberations in the Scooter Libby perjury case. Notice that I didn't write the Valerie Plame identity leak case or anything similar. That's because, after all the investigation, no sufficient evidence that a crime involving revealing her identity was found. In fact, evidence found indicates that there was no crime to be committed as she was no longer a covert agent with a cover to be blown at the time the events under investigation took place.

Why was Scooter Libby tried? I think it is because he has a name that news casters find amusing to say. Repeat, "Scooter Libby, Scooter Libby, Scooter Libby". Admit it, it feels a little silly. Unfortunately the very serious reality is that Mr. Libby could find himself serving 35 years in jail if he is found guilty of... what, exactly? Perjury. He lied to the grand jury investigating Ms. Plame's case or so say the charges against him. The thing is, this isn't perjury in the Bill Clinton "I did not have sex with that woman..." sense where it clearly is or is not a lie. This is perjury in the, "I rented that car on a Thursday," when it actually happened on Wednesday sense. In other words, quite possibly a case of mis-remembering.

Jurors in this country have an unusual and specifically unpublished power. They have the ability to actually take into account the "rightness" of the applicable law or its application in a particular case. This act does not create precedent. In other words, it does not have the power to overturn existing law in general, just for a given case. This power is called Jury Nullification. It has very long precedence going all the way back to English common law which actually has some legal basis in this country in the absence of other governing law. This case seems ripe for its application except the judge is withholding the very facts that might sway the jury to invoke it. Of course no judge in this country even permits Jury Nullification to be introduced to a jury. They all will seek to disbar a lawyer who attempts to inform a jury of the power and will excuse any potential jury member who so much as expresses knowledge of the concept.

The facts the judge has forbidden the jury to consider regard the question of if an underlying crime had been committed. The Judge has specifically forbidden the Jury to speculate on if Valerie Plame actually had her cover blown, or not. Without seeing that, at worst, Mr. Libby's action resulted in no harm, no foul, they have no means to consider if Mr. Libby's crime is worth a potential 35 years in jail, even if it was committed.

Further, his guilt or innocence seems to have come down to a "he said, he said" situation where the "he"'s in question are Scooter Libby and Tim Russert. Do we see a problem here? We should. Tim Russert is not just anyone. He is a newscaster who has appeared before the public many times for many years. It is unlikely that he is not known to the members of the jury. Before this incident, I suspect that very few had ever heard the name, "Scooter Libby." As a news caster, Russert receives immense credibility simply by virtue of his job. We are supposed to trust news casters. Never mind that he is just a person like any other. I don't know how we can expect the jury to leave the realm of subjectivity and trust Libby over Russert. It does not seem reasonable to do so.

Whatever. Maybe today we will obtain some insight into of what reasoning a jury of one's peers are capable. Maybe tomorrow...