The Corner

re: The Libby Trial — Heading Toward a Hung Jury?

Byron’s reports continue to be welcome and characteristically excellent.  I would add only this voice of experience.  Sometimes jurors in the BIG case really get into being jurors in the big case, and retry the whole thing in deliberations.  I got that sense yesterday when the note we heard about indicated, after six days, that they were only up to Count Three of the five-count indictment. 

From afar, we think it’s an easy case — Scooter lied or he didn’t.  From their perspective, though, it’s much more involved and they’re much more invested.  Indeed, if they had just decided to watch Libby’s grand jury testimony again, that would have taken a day to a day and a half of deliberation time.

Nothing is more imprecise than reading a jury.  The only thing I’d note at this point is that we have no signs of divisiveness or stalemate.  They may just be hellbent on trying to get it right.  We shall see. 

But, as I suggested a couple of days ago, this may explain the oddity that Fitzgerald wanted an alternate juror added when one got disqualified while Wells was content to go with 11 — both counter to the usual playbook for prosecutors and defense counsel.  If the lawyers had a sense that deliberations would be very long, it makes sense that Pat would have wanted to avoid at all costs the possibility of losing a second juror, while Ted would have been happy to increase the chances of getting down to 10 — at which point a mistrial gets more likely.

I always think the judge in a high-profile case should sequester the jury during deliberations.  Juries tend to move it along when they don’t get to go home every night — and the chances of their being exposed to prejudicial outside publicity is drastically reduced.  When the judge doesn’t sequester them, this is what occasionally happens.

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