The Unknown Unknowns ....

[H2O Man]

"Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns -- the ones we don't know we don't know." -- Donald Rumsfeld

Activities related to the jury in the Libby trial caused a bit of anxiety for the judge, prosecutors, and defense attorneys yesterday. At issue was a juror who had been exposed to information regarding the case from a source other than the court proceedings. There was concern, fanned by the cable network coverage, that this created a likelihood of a mistrial. Let's take a quick look at some of the knowns and unknowns.

The juror in question has been identified as: {1} Juror # 1473; {2} as an "older" white woman; {3} as having "dyed blonde hair (Fox News); {4} who grew up in New York City; {5} who has a doctorate in art; {6} who was employed "for years" as a curator at the Metropolitan Museum of Art in NYC (NY Times); (7} who moved to Washington DC; {8} and who did not join the other jurors in their Valentine's Day fun.

We know: {a} that she read both the NY Times and the Washington Post twice per week; {b} that she did not watch NBC's "Meet the Press"; {c} that she had claimed that she had formed no opinion regarding Libby's guilt or innocence; {d} and that she could put aside anything and everything she had read or heard in the news if she were to be a juror in this case.

We know that yesterday, the jury foreperson contacted Judge Walton to alert him to a concern; we believe that concern was that Juror # 1473 had been exposed to outside information over the weekend.

Judge Walton met with the prosecution and defense teams; they then evaluated the situation, including Juror # 1473 and then the rest of the jury, to determine the potential contamination caused by 1473.

Juror #1473 was dismissed. When meeting with the other 11, he determined that there was no contamination. There was one humorous moment, when Judge Walton asked, "Let me just ask, before you go back, whether any of you have kept yourself isolated from any outside information in this case?" All 11 raised their hands. Judge Walton said he meant they should raise their hands only if they had been exposed to outside information. Everyone laughed, and all 11 jurors put their hands down.

Patrick Fitzgerald requested that Judge Walton add one of the alternate jurors, to keep the jury at 12. This would have required the court to instruct the "new" jury, and to have them re-start their deliberations. He said they would be in "dangerous territory" if they lost another juror.

Teddy Wells stated that "it would be inappropriate and unfair" to force the jury to start again. He said it would be "prejudicial to Mr. Libby," and added that, "It's not like by going to 11 we're on the cliff to some mistrial."

Judge Walton said, "I don't think it would be appropriate to throw away those two and a half days. I don't have anything to suggest that this jury is anything but conscientious and can continue."

The federal laws allow a judge to continue a case with 11 jurors. If another one is lost, the judge needs the agreement of both the prosecution and defense to continue with a jury of 10.

There is speculation as to why Team Libby prefers to have 11. In general, a larger jury provides an increased chance of a "hung jury." Thus, a number of people believe that MSNBC's David Shuster is correct, that the defense had noted from the first alternate juror's "body language" that she did not believe Teddy Wells when he delivered his closing statement.

Neal Sonnett, the former president of the National Association of Criminal Defense Lawyers, said, "The lawyers are always looking at who that person would be. And they are engaged in a little mind-reading, trying to guess from that person's body language." And former prosecutor Guy Singer said, "At very least, it probably means that Fitzgerald liked the alternates and Wells did not."

At this point, it remains unknown exactly what information the dismissed juror had been exposed to. There is speculation that it may have been a Washington Post op-ed that had disinformation on Valerie Plame's status, and a personal attack on Mr. Fitzgerald. Had the information been an attack on Libby or Dick Cheney, it is believed that Teddy Wells would likely have argued that the risk of jury contamination required a mistrial.

[madokie]

1. thank you

[H2O Man]

2. David Shuster

is on Imus now. He said the juror in question "sought out" information over the weekend; recognized it was an error and told the foreperson; and then was removed.

Shuster says that she was doing some research to "clarify" what she heard in court.

[WiseButAngrySara]

3. Wow! Thanks for the concise and clear synopsis H2O Man!

:kick: and R! I'll be following.

[H2O Man]

4. Stay near

your tv this afternoon. Some are speculating that today is "the day." Wouldn't surprise me.

[WiseButAngrySara]

5. I hope so! Some say the sooner the verdict the more likely is

a guilty conviction, but we all know exceptions to that 'rule of thumb!'

[trumad]

8. Tell me something Obi-wan-knobe...

why are people freaking out about the "She's the only one who didn't wear a red shirt for Valentines day" thing?

I don't get the conspiracy?

[H2O Man]

12. I didn't view

that as of any significance, in and of itself. It did hint that she was not part of the "group" ... however, it may have been as simple as her having a different view on the seriousness of her duties as a juror. Of course, yesterday's events may suggest otherwise.

[mmonk]

9. Thanks for making me more "nervous"

;-)

[Me.]

29. Now That's Interesting

Don't know who the "some" are, but I hope they're right.

[texpatriot2004]

6. Thank you for this post H2O Man. This thing with the jury makes

me very uncomfortable.

[H2O Man]

13. It should.

I think that there is zero chance that anyone from the defense team would attempt to infect the jury, and/or try to derail the trial. I think that it is possible that someone connected to the group that spawned the Plame scandal would be of a different mind on that.

[texpatriot2004]

33. Exactly. I agree with you and since the Valentine's Day stunt was

publicized, who knows who stood to benefit from the message the jury sent. Plus, as you say, those who were behind the Plame scandal will go to any length to get their way; nothing is beyond them, in my opinion.

[porphyrian]

7. Hmm... - n/t

[Tsiyu]

10. Maybe they should sequester these people?

Dunno, but if it's crucial that they stay away from media....:shrug:


Thanks for the summary of what's going on. :hi:

[H2O Man]

14. I expected that

to happen. I think this case would be, by definition, one where protecting the jury from potential contamination would be a must.

[never cry wolf]

26. It is extremely difficult to avoid outside sources, even if diligent

I was on a jury years ago. It was murder one, a guy on crack blew away a gas station attendant at 2 am. Not to belittle it but it was not a huge story in the Chicago metropolitan area.

Nevertheless, I read two papers a day and the trial was covered to some extent. Having to censor myself while reading the papers was very hard. I had to at least read the headline to know what articles to avoid, and the temptation was great to take a peek. Same thing with the nightly news and/or radio. They may have a 20 second piece on it and you hear the first few words and cover your ears and leave the room, not knowing when it is safe to continue watching.

I cannot image how hard it must be to avoid news about the case in this trial unless you stick to the sports section and the travel channel.

[Pithy Cherub]

15. Federal juries

are not sequestered any longer. The issue is that many experts feel they would rush through deliberations to the detriment of the process. Add group dynamics that get more complicated or could evolve into group think. (The OJ effect is what I call it...) It would have to be massive to sequester a federal jury these days.

[Beausoir]

11. Another excellent post. Thank you. This is nerve wracking.

If the jurors follow the facts and evidence, there is only one verdict they can reach.

I keep telling myself that.

[H2O Man]

19. "nerve wracking"

It's interesting to consider the strain that the defendant is under. I'd bet it's nerve wracking for Scooter, too!

[Beausoir]

28. Wow. Great point. You just put a smile on my face.

He got caught. Busted. Red-handed. His gut must be roiling right now.

[Blackhatjack]

16. Very insightful post. Here is another theory to consider...

Wells is trying to play both ends against the middle.

Yes he may have 'waived' his client's right to have 12 jurors determine his client's fate. But the extent of that waiver is based on what we know now about the jury's possible contamination.

IF convicted, you can be sure Wells will examine this jury and their deliberations intensely to determine if there was any kind of 'jury misconduct' --which could lead us right back to the activities of this dismissed juror, and her 'affect' on the jury panel carrying out its duties.

This is pretty obvious to Fitzgerald, and placing another juror on the panel and requiring the jury to 'start over' in the deliberations would have strengthened the 'knowing and wilful waiver' of Libby, but certainly would not eliminate it being raised on appeal.

The problem I have is the contamination was present during deliberations of this jury. THat may have been an impossible taint to remedy if more comes out post verdict than we know right now.

The concept of a fair and impartial jury is at the core of our criminal justice system.

[H2O Man]

20. Anything is possible.

Defense attorneys will focus on serious issues if they believe that an injustice has been done. But with guilty-as-sin clients like Scooter, they will attempt to appeal on any insignificant issue that they can come up with. In this circumstance, it's pretty safe to think that if there was anything that really pointed to the jury being tainted -- which the lawyers and judge all agreed did not happen -- then Team Libby would have taken the exact opposite stance that they did yesterday. Hence, though in theory it might be something mentioned on appeal, it will never be taken seriously.

[Me.]

17. What We Also Don't Know

Is how Fitzgerald really feels about the situation. I know FDL reported he looked "pissed". but hey, he's one smart guy and may be a better actor than Wells and has the defense right where he wants him. Why the juror sought out info, after the judge's warning is beyond me and suggests to me that she might have wanted off the jury for whatever reason. She was a curator at the Met, those are serious, detail minded people who don't "make mistakes" like this. We don't know if she was an outsider in the group and felt alienated. Maybe the others are glad to get rid of her. What we do know is that as Wells wanted this, it can't be used as grounds for an appeal.

[H2O Man]

23. It has to be

something that Judge Walton, Team Libby, and Mr. Fitzgerald's people found alarming. It shows that even if jury-tampering isn't at issue, it only takes one personality-disordered person to ruin the efforts of a large number of people.

[myrna minx]

18. Thanks. n/t

[spanone]

21. K & R

[blm]

22. Thanks for the invaluable insight - Shuster was saying this AM that if not for

Hardball and Countdown segments, this case would be getting NO scrutiny at all from mainstream media.

How NBC overall can ignore this is beyond comprehension, considering THEIR reporters are part of the story - and why other networks are avoiding it, too, when normally they'd be acting with glee that other network's personalities were caught up in the intrigue and bogus reporting.

[H2O Man]

24. I thought it was

funny this morning when Imus said he thought that Matthews and Shuster might be hoping that Libby is convicted, and Pat Buchanan said he thinks they might be looking towards someone higher up than Libby.

[blm]

25. I wish I could read Fitzgerald more, but this case just doesn't get the level

of attention where we are abreast of everything happening and said. No blue dress.

[Cerridwen]

27. Thank you!

As always, I appreciate your insight into the, sometimes, murky waters.

:D

[TahitiNut]

30. I think it's reasonable to conclude that this juror was at odds with emerging 'groupthink'...

... on the jury. That the foreman alerted the judge indicates that the juror brought it up during deliberations. The highest probability, imho, is that the juror was motivated to defend her position in the face of group pressure. Given that this juror was also the only one to not participate in the St. Valentine's Day Fashion Pander, an act that seemed to indicate some internal 'movement' to indoctrinate the jury in a "herd mentality," it seems reasonable that the 'group-think' (no dissent allowed) forces on the jury have taken over. I've been on the planet long enough to know this is not an unusual phenomenon in group dynamics. I've rarely participated in working groups where at least some people demonstrated an notable aversion to independent thinking and a contrarian dialectic. Such a dynamic doesn't require some malicious outside force to precipitate, but that's not to say that even moderately skilled outside forces wouldn't leverage this kind of dynamic to their advantage.

[bleever]

31. Sounds plausible to me.

How could a reasonably intelligent person construe the judge's instructions as allowing a juror to seek confirmation in the media of evidence presented at trial? She wanted out.

[H2O Man]

32. tick-tock

tick-tock
tick-tock
tick-tock

[texpatriot2004]

34. Nothing yet? Just checking in for a moment but I will have

to leave soon. I have been thinking about it all day today - and for many days before today too...just like you.

[KoKo]

35. While we wait, H20 can you give some insight into the Valentines Day display.

There was speculation on a DU thread that added some info about how the jurors behaved when they walked into the courtroom with those T Shirts and many of us felt that it didn't seem to be proper for serious jurors to don Red T-Shirts leaving out one fellow juror and to address the Defense..(according to a newspaper article) wishing them "Happy St. Valentines."

Another poster speculated about the Libby Aspens and Crutches and wondered if it isn't strange that Russert shows up with crutches (after an accident in November) the Valentines T-Shirts {allusion to "St. Valentines Day Massacre") and again, the odd posturing of the Jurors to the Defense.

Anyway...My question has been: Where did the jurors get those T-Shirts and why did only one of them think it would be a bad idea. I know if I'd been on that jury I would have refused to wear one thinking it would be disrespectful of the situation and gravity of what the trial is about.

Anyway...would love to hear your thoughts. And any other Plameologist who could chime in.

Link to DU thread:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x298668

[H2O Man]

36. I think the

Valentine's Day shirts showed a light-heartedness that one juror did not share. In and of itself, I do not think it is significant. Of course, I never participated in the holiday parties at the clinic where I was last employed.

Anyone who views the it as somehow connected to Scooter and/or Russert using crutches is probably getting messages from playing Rolling Stones albums backwards.

A more interesting connection, however, is found in the juror looking for evidence over the weekend. That indicates that she views herself as "special," and that she does not feel obligated to follow the rules set up for the rest of the population. In that sense, she and Scooter are connected at the roots, much like the aspens.

[Me.]

37. Here's What I Don't Get

She obviously determined that she was above the rules and sought out info. But why, then, did she open her big yapper? It has been suggested that perhaps the jurors got into a debate about something and she may have referenced the info she pursued, that it just slipped out. I can't think of any other reason she would tell on herself, so maybe this is all to the good.

[H2O Man]

38. We often assume

that intelligent people have social skills. Most do; some don't. There are intelligent, educated people who have what we will politely refer to as a sense of entitlement. I'm guessing this lady was a peach to work with at the Metropolitan Museum.

According to David Shuster, our Metropolitan Peach did not simply stumble upon some media report this weekend. She was doing research to verify something the jury was discussing. One suspects that she needed this "extra information" to prove to others that she was right -- and they wrong -- about some issue involved in the jurors' discussions/debates.

[KoKo]

39. Interesting analysis of this juror....thanks!

and your observation of her singling herself out.

I still feel I wouldn't have chosen to wear a T-Shirt...not thinking Libby Trial to be "light hearted fun" and wondering why the jurors would feel so. I guess it could depend on the age group of the jurors...whether they would be into fun or seriousness being that many younger jurors might not be as much into "appearances" as some of the older ones (if any are) who perhaps grew up with more conditioning about how one conducts oneself in public and the solemnity of a court room situation and the responsibility of being chosen a juror. :shrug:

[NobleCynic]

40. "Unknown Unknowns"

I still can't hear that phrase and avoid thinking of Boondock's take on it.

Thanks for the summary for those of us not keeping a close enough eye on the trial. Keep it up, you have our thanks.