"A.J. Rose" (Jonathan) (ajrose93) wrote,
"A.J. Rose" (Jonathan)

Libby Trial Predictions


When I was in college I spent several intense years clerking in my dad's little Santa Monica law office -- rapidly becoming one of the first paralegals (brand new idea back then), and participating in some hundreds of cases: of all sorts, but with a specialization in criminal defense. This plus an LJ account makes me as good a judge as anybody on earth1 of the perjury and obstruction trial of I. Lewis "Scooter" Libby, Vice President Cheney's former Chief of Staff and National Security Advisor. In brief:

(1) Nobody knows anything about what juries will do. Apply large bags of salt to all commentary on same, including this one.

(2) In a normal perjury/obstruction case, Libby would be toast -- not just because his Grand Jury testimony (played in court) has been decisively refuted by a large number of highly credible witnesses,2 but because he's elected not to take the stand. I take the presumption of innocence with the utmost seriousness, and it would be hella wrong for any jury to assume a person guilty just because they elect not to testify...but I'm also here to tell you that juries ALWAYS3 assume EXACTLY that. The reasoning is simple: your liberty and honor are at stake and you don't feel like explaining yourself? You clearly have something to hide, most probably your guilt in the current case. QED.

(3) This is not a normal case in any sense of the word. First of all, juries disproportionately find more "reasonable doubt" in the cases of privileged folks (celebrities; rich, powerful white men, etc.) -- if only because they can afford lawyers who will vigorously fight their case. My dad won more cases than most criminal defense attorneys simply because he fought -- as he put it, in his mind "every case is Murder One," irrespective of ability to pay. (This also made for more favorable plea bargains, because prosecutors didn't have to go through too many trials with Dad before they wanted to avoid any more. It also kept him from making much money, but thereyago.)4

Beyond that, this is a highly politicized case. The odds that two or three jurors will be simply unwilling to convict, irrespective of the evidence, are very high: the "FOX says this is b.s.!" effect.

So...(drumroll, please):

(4) Nothing is impossible; Libby could be found Not Guilty. I put that possibility at about 1-2%. OTOH, thanks to the privilege and politics aspects, I suspect there may well be holdouts against conviction, irrespective of the evidence. I conclude that there's a 59% chance for outright conviction -- probably after extended deliberation to wear down the holdouts -- and a 39% chance of a hung jury, with little chance for a retrial if so. If the jury hangs with more than three votes for acquittal, I'd be very surprised; OTOH, the closer the hung jury is to 6-6 (or better, for acquittal), the likelier the government will not refile. In fact, I'd be very surprised if they refile even with a single holdout (11-1 to convict), for reasons unrelated to strict justice.

Whatever happens will either be described as exoneration (which short of a Not Guilty it isn't, legally speaking)...or (if a Guilty verdict) either bizarrely overturned on appeal, or pardoned by the President. Scoot actually seeing a prison, much less testifying against former boss Cheney in a subsequent case, is virtually certain never to occur.

Youse guys gots predictions? Or just want to slam the fine art of criminal defense? -- which deserves some slamming, though also the sort of system-supportive explanations I'd be happy to share.... :D

93 93/93 -- AJ

P.S. Our icon is from Charles Bragg's wonderful series of legal prints, a number of which hung in my dad's office. My favorite -- Dad's, too, I shouldn't wonder -- was probably the scummy defense lawyer holding the halo over his rotten client's head. But maybe Dad preferred this hanging judge. ;)

P.P.S. Thanks to sal93 knowing how to do it, I finally figured out (from her posted example) how to do numbered footnotes. (The command is [sup] for superscript, & [/sup] to end it, on either side of the number: [sup]1[/sup] -- only with the usual pointy command brackets, natch. Cool! No more *******'s! :D

1. Arr-arr, humor. :)
2. I'd be happy to lay this out in detail, if anyone cares. In the meantime, I don't say it lightly; this is one of the tightest perjury/obstruction cases I've ever seen.
3. Yes, I mean "always." That they sometimes find a non-testifying defendant Not Guilty anyway is most often a testament to their own sense of honor in obeying the law, whatever their personal conclusions.
4. The next book after ITNV finally comes out will be 1532 Third Street, a fictionalized account of the years in Dad's office. I can't wait. :)

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