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January 19, 2007

Picking a Jury: The Libby Voir Dire

By Clarice Feldman

Yesterday, as part of the Media Bloggers Association, I covered the ongoing voir dire of potential jurors for the upcoming Libby trial. This is the first time bloggers have been issued press credentials to cover a federal trial. Voir dire is the process of questioning potential jurors to eliminate them for cause (for example bias or felony convictions) or simply for no stated reason by either party (peremptory challenges).

We have not yet got to the preemptory challenges but many of the jurors have been struck for cause, largely bias against the Administration and the defendant, bias often occasioned by prejudicial pretrial publicity.

On January 16, Libby filed a motion asking that he be permitted to probe the extent of exposure jurors had to such coverage.
As previously noted by the defense, the pretrial publicity in this case has been significant and in many cases has included inaccurate and inflammatory statements and assertions that are unduly prejudicial to Mr. Libby. Therefore, in connection with the voir dire, the defense will need to ask certain venire members about their exposure to such publicity and probe whether that exposure has affected their ability to impartially judge the facts in this case. Such individualized voir dire is necessary to give the Court an adequate basis for determining whether the venire member will be able to render a verdict based on the evidence adduced at trial, and not incomplete facts and speculation circulating before trial. See United States v. Liddy, 509 F.2d 428, 434-35 (D.C. Cir. 1974). Attached to this pleading are a sample of instances of publicity.... [emphasis added]
The exhibits contained biased and inaccurate and inflammatory press coverage of the case, beginning with the Special Prosecutor's unfortunate and misleading press conference transcript (I have discussed this presser before and it is part of the complaint I filed with the Department of Justice's Office of Professional Integrity).

Sunny Day, a JustOneMinute Poster, has put the exhibits in html format for easier reading here, here, here, and here.  

I have no record of an order being entered to permit what Libby requested, but based on my observations from the media room at the courthouse, the defense was allowed to ask jurors what they knew about the case and how they learned it, with particular attention to the coverage attached as exhibits to the pleading Libby filed.

As the defendant was a member of the Administration, and other officials including Vice President Cheney are expected to testify, counsel probed whether the potential jurors' views of the Administration would impair their ability to fairly judge the case.

That this pretrial publicity has had a pervasive, poisonous effect on public opinion of the defendant was obvious in the jury selection process yesterday. A majority of the potential jurors I saw had not only heard of the case but had adopted the false narrative of it: that Libby was being tried for disclosing the name of a an undercover CIA agent as vengeance for her husband's exposing Administration lies about Iraq's efforts to obtain uranium in Africa. That is to say, they had been reached by the press narrative that the administration lied, Wilson told the truth and Libby, uncaring of national security, "outed" her to pay back her husband for speaking truth to power.

And the political bias is equally evident. As one reporter noted:
Special Prosecutor Patrick Fitzgerald pushed back Thursday against defense attorneys who have been weeding Bush administration critics out of the jury pool in the perjury trial of former White House aide "Scooter" Libby. "The jury will not be asked to render a verdict on the war or what they think of the war," Fitzgerald said Thursday at the onset of the third day of jury selection.

Jury selection has taken longer than expected, in part because attorneys for I. Lewis Libby have grilled potential jurors on their political views. Though several Bush administration critics made it into the potential jury pool, attorneys have successfully disqualified the harshest Bush opponents who said they could not be impartial.  [...]

Fitzgerald and defense attorneys spent more than 15 minutes Thursday morning arguing privately with U.S. District Judge Reggie Walton over whether to dismiss one potential juror, a management consultant. She said her feelings about the administration could spill over into the trial. "My personal feeling is the Iraq war was a tremendous, terrible mistake. It's quite a horrendous thing," she said. "Whether any one person or the administration is responsible for that is quite a complex question." The woman was ultimately dismissed but Fitzgerald's fight to keep her was his strongest effort yet during the politically charged hearings.
It is not solely the media coverage and political animus that is making it hard to empanel a jury. Many of the city's residents are employed at agencies involved in this case and have family members employed there. The most amazing exchange I heard yesterday is recorded in my live notes. It is not a transcript - I have none and the court forbade bloggers to try to create one -- but we could and I did create a summary. The woman was a CIA employee who was eventually struck for cause from the panel. Here are my notes, as posted at JustOneMinute, where I liveblogged the case:
Last juror was improperly told by CIA counsel that the case was about a leak of an undercover status of a CIA agent. Judge indicating he doesn't think they can "unring this bell"

Fitz[Gerald] responding--Says he "feels" that that was not an accurate recollection ....

He's obviously trying to keep her on the jury.

Says Judge did explain that her sense of the case was wrong.

Wells: We weren't allowed discovery about "covert". We are asking for instructions telling Jurors to disregard Plame's status.

Now we have a potential juror told by CIA lawyer that Plame was covert and "outed" and that fact that Plame worked at DO [Directorate of Operations] might effect her view of case, Etc.

Re materiality this might have an impact on her..Judge not sure she'll have to consider this

Wells:Fit[zgerald] is going to go into motive--Libby may have feared loss of job if it came out that he leaked. Issue not on verdict sheet re elements.[but].this will come up under motive part of case.


Wells[Libby's counsel]--witness was told BY CIA general counsel's' office PLUS she said she thought all employees at CIA were classified--Much more extreme than case where potential juror heard this on TV or read that in the paper.


Wells;The danger is in putting on the stand someone who has these beliefs--ie that all CIA employees are classified, ideas that are wrong but are based on 19 years of employment at CIA--


Juror back on stand--judge ho[m]ing in on what CIA general counsel told her and asks if she could put that totally out of her mind.
(She says she may have misremembered the CIA counsel's statement heh)


WELLS; could your prior knowledge of how classified info[rmation] is handled bleed over to this case. Witness:No

Judge:Do you think a Rep[ublican] and Dem[ocrat] [is] entitled to equal treatment in court.? Witness:Yes

Wells: If the question comes up as to whether or not Libby thought she was Covert could you put that out of your mind?
Apparently "we are here because she was covert" Judge reminds here that is not in this case.

Posted by: clarice | January 18, 2007 at 11:14

The noise scrambler is on [this prevents anyone but the judge and the counsel to hear the discussion]--at the bench conference Fit[zgerald] is gesticulating like crazy.

It appears that the Court must select a panel of 36 jurors (jurors, alternates, and a sufficient number to meet the not yet exercised preemptory challenges available to both sides.) And I believe this must be drawn from the original tranche of 100 called for jury duty in this case due to the One Day, One Trial local rules.

It is ironic to note that the ill-informed, biased press coverage not only is making the selection process exceedingly slow and difficult, but the embarrassing lack of knowledge about the case among journalists  has shown up in the potential panel itself. As David Shuster of MSNBC wrote:
This is day #2 of jury selection, and it has become another bad day for a few of America's elite universities. This morning, a young woman with degrees from Swarthmore and Emory University said she had no opinion about the Bush Administration's case for war with Iraq. She also said she never watches the news or reads the paper, and said she would consider Vice President Cheney "a perfect stranger." Yesterday, a potential juror with two degrees from Northwestern, including one in journalism, said she thought she knew something about the CIA leak case but "couldn't recall anything." When asked about the types of stories she covered as a graduate school journalist, that woman repeatedly said, "I don't really remember...just stuff at the court, stuff at the city council." Asked what else? She said, "Other stuff." Asked to be more specific, she said "I don't remember. It was a bunch of stuff." This exchange prompted endless teasing of one of my journalism colleagues covering the trial who is a Northwestern graduate. "Stuff happens," noted one of the other reporters here 
So has journalistic bias:
No. 1531, a young woman who is an arts reporter for The Washington Post, said it would be tough for her to function as a juror rather than a journalist. She would be sorely tempted, she explained, to share what she learned at the trial with her colleagues at the Post and her live-in boyfriend, who works there. "I'm a gossip," she professed. After federal district court Judge Reggie Walton reminded her she would have to resist such urges, she noted she had a well-formed view regarding Cheney: "I like to believe that as a journalist I can put my feelings aside....[But] my feelings about Vice President Cheney are so strong it would make it very difficult for me....I feel Vice President Cheney puts his business priorities over the good of the country. I don't trust him. And anyone associated with him would have to jump over a hurdle for me to think he was ever telling the truth." Walton didn't wait: "You're excused." (In the media room, a Washington Post reporter cringed.)
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