01/18/2007 09:48 pm ET | Updated May 25, 2011

Libby Trial Day Three: Is The Jury Selection Process Fair?


         DC Federal Court 

(For today's jury selection status and live blogging updates, please see here and here.) 

I'm not an attorney and have not viewed any other criminal voir dire processes, though it seems to me that Judge Walton was trying to give the defense a certain amount of latitude to explore potential biases among jurors.  Judge Walton has done high profile cases before, and this one is a doozy.  Everyone has an opinion - check that, most people have an opinion - about this administration and the case made in support of the invasion of Iraq.  Those events form the backdrop to this case, and they involve some of the case's main characters, most centrally, Scooter Libby (defendant) and Vice President Dick Cheney (witness). 

Pat Fitzgerald, the prosecutor in the case, seems a bit frustrated by how much latitude is granted to Libby's attorneys, because it draws Team Libby very close to representing during voir dire that the case is about the war, which it is not.  To the extent Team Libby is successful in going right up to that line, they have more opportunity to get jurors rejected for cause who, upon sustained inquiry, confess they don't have a lot of faith in the Vice President or, by extension, his former right hand man, Scooter Libby, even if they state more than once that they believe they can take the case and its evidence on the merits, according to the judge's instructions.  Fitzgerald even had some success in making an argument to Judge Walton on the matter as the day progressed, though Wells still found enough room to bring the war into his questioning through more careful wording.

Today, one juror admitted the possibility after sustained questioning by Ted Wells that strong feelings about the Vice President could, in theory, at least subconsciously make it difficult to render a fully impartial judgment of testimony by Cheney if it were contradicted by someone else's testimony.  She was then excused for cause, after much sidebar discussion.  Whuh?  Subconscious motivations are, by definition, unavailable to the conscious mind.  If a potential juror admits that she may hypothetically be influenced by operations of her mind outside of her direct awareness, she is merely being honest and self-aware. 

Such honesty, such self awareness, seems to be too much for jury inclusion, even though this woman elsewhere stated, when questioned directly by Judge Walton and by Pat Fitzgerald, that she would be able to set aside all her previously held feelings about the administration and the case made for war in favor of the evidence presented, according to whatever instructions were given to the jury.

Now, it may also be that she should have been struck, because she did admit she felt "terribly betrayed" by the decision to go to war, believing that decision to have been a "tremendous, terrible mistake." But contrast her with one of the day's last potential jurors:  a young defense attorney from one of the law firms in town.

This young man was a very polished potential juror, skilled at answering questions, who gave every appearance of wanting to get onto the jury:  he said all the right things about the way he would make deliberations.  However:

  • His fiancee represents one of the probable witnesses in the case.
  • He cites first among the blogs he reads "Glenn Reynolds, Instapundit" before throwing in Josh Marshall's Talking Points Memo, DailyKos, Eugene Volokh, How Appealing and some other law related blog.  Like that Sesame Street song about something not belonging here, DailyKos sticks out (TPM is a rather centrist, leftish blog focused mostly on journalism, frequently linked by Reynolds, if only by way of attempted rebuttal).  Volokh and Instapundit are very aggressive right wing blogs, and Glenn Reynolds has written frequently and dismissively about this case and whether it ever should have been brought. I saw this young man's testimony from a seat in the courtroom and I think he was, if not lying, being very conscious about trying to create a false impression of nonpartisan balance.  He was, in my view, consciously deceiving.  Why else do I believe that?  Let's keep going.
  • He started out by saying he knew very little about the case, but upon questioning, he had a great deal of familiarity, in great detail, with its history, and had even read the indictment.
  • He stated he believed that the administration was not entirely accurate in making its case for war, but did not believe that this was the result of conscious deception.  He stated he understands certain things have to be said to be persuasive, to promote public support, but he feels the administration did not do a good job, because he believes there are reasons, "even very good reasons," why we should have gone to war.  Note the present tense.  He stated he faults the administration for handling the making of the case for war poorly, though politically, he takes a "middle of the road" approach.  Uh Huh.  So far, his views place him in the decided minority in the population.
  • Did I mention his current boss is a friend of Libby's attorney, William Jeffress?  What are this guy's chances of becoming a partner as a defense counsel in DC if he were to be on a jury that found for the government against Scooter Libby?  DC attorneys will likely say publicly, if asked, that it wouldn't matter, but everyone who knows how becoming a law partner works knows it ain't necessarily so, depending on the firm.
  • He's also doing work representing U. S. soldiers undergoing court martial in connection with the deaths of Iraqi civilians.  Odds are, that's work he wanted to do, and for all we know, he may be doing it pro bono.
  • In response to a question about Cheney's potential testimony, he averred Cheney is not his favorite person, and more or less like any other politician. He added, these opinions would not affect his estimate of any sworn testimony, since he expects that no one would really perjure themselves under oath.  Yep, that's what he said, during voir dire of a perjury case.  Oops.  Bit of a slip, that.

In short, the whole picture of this young man is of a true believer in the war against superugly islamonazifascists, or whatever we're calling them these days.  But he smiled, answered questions with lawyerly precision and coolly assured the court he would be fair and objective in all matters, dealing only with the evidence before him, even giving jury room deliberations the benefit of his lawyerly ability to sift through fine nuances.  Uh huh.

Now, of the two jurors, in the abstract interests of fairness at a trial, I would rather have the former, whom I believe to be more honest, over the latter, and yet the former has been struck while the latter remains.  Even though my opinions hew much more closely to those of the woman who was excused than they do to those of the lawyer who remains, I would say this even if their views of the war were reversed:  if we on the progressive left have been raging about anything these last few years, it has been about the restoration of the fundamental integrity of the institutions governing our public life.  I trust the woman who was excused because I find her to be aware of her potential biases and committed to rise above them.  The young attorney, on the other hand, I find smoothly and willfully deceptive.

I expect the young attorney to be stricken by a peremptory challenge from the prosecution once the time comes, but my wider point is this:  all this fishing about the war, and potential jurors' attitudes towards it, may be helping Team Libby weed out some otherwise honest jurors who could and would do a fine, fair job.   On the other hand, I understand the Judge's desire to give the defense some latitude, given the enormity of the challenge the defense faces due to the war's unpopularity, and the fact that testimony in the case will remind jurors of the nation's decision to invade and occupy Iraq. 

Where does this leave the process?  Actually, once all the peremptory challenges are done, I expect the result will be a fair jury overall; I think the process is basically working.  And yet I admit, watching a jury be selected feels quite a lot like viewing the production of sausage.