In Defense of the Scooter Libby Jury

This is the latest question from the Scooter Libby jury:

[I]s it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt?

I had to read that at least twice before I understood it, probably because of the double negative, which really becomes a triple negative: asking is there reasonable doubt is itself a “negative” question. Judge Walton also was uncertain what “humanly possible” meant, so he wisely asked the jury to clarify.

The obvious cheap shot is to mock the jury for its surprising requests and slow pace:

* Re this question about reasonable doubt: “It’s really a very commonsense concept,” says NRO’s [National Review Online’s] Andy McCarthy, a former federal prosecutor who served with Patrick Fitzgerald in New York. “If you’re down to parsing it, it’s almost like you’re dealing with a jury that is asking why is the sky blue.”

* Re the jury asking a different question earlier but then retracting it: “Never mind,” the ever-snarky Slate paraphrased the jury as saying.

* Re the jury’s desire for large quantities of office supplies: “They wanted a large flip chart, masking tape, Post-it notes and a document with pictures of the witnesses.”

* Re the sheer amount of time the jury is taking — currently deliberation day nine: “Other juries have settled far more complex cases in less time…. [I]t appears that some jurors might have gotten so deeply entangled in the minutiae of the case … that they have lost sight of the question before them.”

I’m no criminal law expert (“I’m just a cave man…”), but color me impressed with, not disdainful of, the Scooter Libby jury. At this point all we can rule out is “clear-cut unanimous verdict,” and I’m not 100% sold on either side here myself, but this jury strikes me as one taking its job very seriously.

To the extent the jury is having trouble, I blame the legal system’s oddly Utopian fiction that jurors, untrained in law and often entirely uneducated, can remember vast quantities of evidence and legal instructions without the sort of detailed, computerized notes that judges and lawyers typically need to keep their facts and law straight. How well would my students understand the law I’m teaching them if I ran my class this way: no notes, no reading, just Moss lecturing at them, uninterrupted, for two or three class sessions? My guess is that they might have a few follow-up questions, some of them difficult for me to understand. Honestly, when I cover material in class that’s new and difficult, I’m sometimes disturbed if I don’t get questions — and I’d sure be disturbed if students didn’t seem to be taking notes.

Jury confusion, it seems to me, falls into the old category, “there are no bad teachers — only bad students.” We’ve chosen to have non-lawyers decide important criminal cases, and with that decision comes a responsibility to provide a lot more support for their work than we usually do. The Scooter Libby jury’s give-and-take with the judge, and its need for supplies, evidences the kind of active learning and processing of information that, frankly, we probably see far too little. In short, it isn’t a problem that the Libby jury is making extensive requests of the judge; it’s probably much more of a problem that more juries don’t.

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2 Responses

  1. Anne Reed says:

    A really insightful post. All the speculation today on what the note must mean is fascinating, but you surely have it right that at the very least it means they are working hard to get it right, and that they don’t agree. The phrase “humanly possible” is especially interesting, because juries increasingly expect prosecutors to provide scientific proof. After TalkLeft posted what looks like the corresponding segment of Ted Wells’s closing, I posted today at Deliberations ( about the striking “CSI Effect” tone of the jury’s note.

  2. CBH says:

    This is a fantastic post.

    I’m surprised to see that commenters are deriding a jury for taking its responsibility seriously.

    I’m also surprised to see a former prosecutor equating the question “what is reasonable doubt?” with “why is the sky blue?” The reasonable doubt standard has *some* meaning, and I think it is great that this jury isn’t assuming that they know what that meaning is. After all, a good portion of the first year of law school is devoted to discussing what the term “reasonable” means . . .