A feature of every jury trial is the Instant Decision Moment. These are always stressful, and particularly so when they hit while the jury is out. During the trial itself, you're making decisions all the time, bouncing and changing direction like a tennis player as new shots come at you. When the jury goes out to deliberate, you head to the sidelines and put a towel over your head: done.
But you're not done, of course. The jury comes back in with a question or a problem, and you need to react. Right now.
The art curator goes home
As the Libby-trial-following world knows, prosecutor Patrick Fitzgerald and defense lawyer Ted Wells had an Instant Decision Moment yesterday morning. A juror -- the art museum curator, the one who didn't wear a Valentine T-shirt -- told the judge that she had "sought information that led her to material about the case over the weekend," says the Washington Post, and so she was dismissed. The Post says "Fitzgerald appeared disturbed by the development, while Libby and several defense attorneys wore broad smiles at the news of the woman's removal."
Now what? Eleven jurors are left. They've been deliberating as a group for more than two days. Do we put an alternate in to fill the group back out to twelve, or do we let them continue as is? Counsel?
Liveblogger Jane Hamsher takes over the story, paraphrasing the exchange. Exactly an hour after court first convened to hear the art curator's communication, it was time to make the call. One speech from each lawyer, a ruling, and it was over:
[Judge] Walton: One juror has now been dismissed based upon the knowledge of her part that she did have information based on this case. It wasn't intentional, but what she had exposure to disqualifies her from further deliberations of this case, so I need to know what counsel's position is as to how to proceed.
Wells: It is the position of defense that jury deliberation should continue with a jury of 11 and that at this juncture an alternate should not be put onto the jury, because as we understand it if a new juror is appointed they must start deliberations all over again which is something in our opinion would be prejudicial to Mr. Libby. That would be a jury of 11. If we have a situation that for some reason another juror is lost, it is such that we would be left down to 10 and we believe your honor would have the ability to appoint the alternates in, so we're not on the "cliff of a mistrial." Don't want to throw away 2 1/2 days of deliberations when these jurors are obviously making their way through the charges, and would be highly unfair to Mr. Libby.
Fitz: The gov't would prefer 12 jurors. If you're going to replace jurors anew that it's preferable to do it after 2 1/2 days of deliberation. We think there is a preference for 12 jurors and we think there is a risk that if someone gets ill we get into dangerous territory of 11 jurors.
Walton: Don't think there is any reason to believe this jury was irresponsible -- info from juror did not taint the others. They have deliberated for 2 1/2 days, don't want to throw away that work. If something does unforseeably happen to another juror then we s[t]ill have the option of recalling the alternates. I did tell them before they left they should continue to not let themselves be exposed to this case from outside sources. So rather than throw away the 2 1/2 days devoted to this effort, I will allow them to continue their deliberations.
Making the call
Why did the prosecution want to add a juror and the defense not? Andy McCarthy at the National Review explained why it seemed backward:
Defense lawyers virtually always move for a mistrial when a juror has to be stricken during deliberations. Reason is obvious: Jury must be unanimous to convict, and it's tougher for the prosecutor to convince 12 people than 11.
A look through the blogs and news reports, and a little empathy, can help us list at least some of the questions that were swirling in both lawyers' minds in the Instant Decision Moment:
- Do we like the on-deck alternate? Observers seemed to agree she seemed hostile to Libby. The National Review's David Schuster described her crossed arms, clenched jaw, and rolled eyes (any one of those would do) when Wells was talking, and said she "relaxed and smiled" in Fitzgerald's rebuttal.
- What's going on with the original eleven? Thanks to her Valentine's T-shirt boycott, we know the dismissed juror was not, shall we say, in sync with the rest of the group. It seems very possible she was holding up their progress toward a verdict, but what verdict? Were they the easy-going, forgiving group that Slate's observer imagined then? Or is Eric Turkewitz of New York Personal Injury Blog right in wondering whether, "since stubborn jurors are generally good for the defense, [her departure] would be bad for Libby"?
- A new juror means more time deliberating: who is helped by that? Firedoglake's Jane Hamsher agreed with a commenter who said it helped Fitzgerald: "He WANTS them to take their time, because the more they go through the evid[]ence, the less the memory defense holds water."
- What if we lose more jurors? Surely the alternates are more likely to see a newspaper each day the others deliberate without them. If one of the eleven gets sick and the alternates have become tainted, we're in mistrial territory, as Andy McCarthy in the National Review points out.
- What does my client think? What comfort level does he need to have with this decision?
- What about pure numbers? Twelve is one more person to convince than eleven.
- What does my opponent want? If it's the same thing I'm asking for, am I missing something?
Many questions, no clear answers, and minutes to make up your mind: that's the Instant Decision Moment. Meanwhile the power went out around 3:00 in parts of the courthouse, and a lawyer on Libby's defense team missed the whole show because she delivered a baby on Friday. Wow.
(Photo by Yoshihide Nomura at http://www.flickr.com/photos/yoshimov/67782955/)
