Judge in Libby Case Among Few Allowing Such Practice
By Carol D. Leonnig
Washington Post Staff Writer
Thursday, February 1, 2007
Former New York Times reporter Judith Miller was on the witness stand yesterday and a juror wanted to know why she had decided to go to jail for 85 days before agreeing to testify about her conversations with I. Lewis "Scooter" Libby.
Another juror had a different kind of question for Miller about a her notes from a conversation with Libby: Was storing notebooks in a large shopping bag under her desk her standard method for saving her notes?
So the jurors asked.
It is very unusual for jurors to be able to ask questions during court proceedings, but U.S. District Judge Reggie B. Walton is allowing it as Libby stands trial for allegedly lying to investigators who were trying to determine who leaked the name of CIA officer Valerie Plame after her husband, former ambassador Joseph C. Wilson IV, criticized President Bush's war plans. The 12 jurors and three alternates get to write questions down and pass them to Walton, who reviews them with the attorneys and decides which ones he will ask on their behalf.
Some of the questions have been dead on, showing that the highly educated jurors -- who include an art curator, a retired math teacher and an international health policy adviser -- seem to home in on key evidence or testimony. Other questions have elicited new insights into witnesses' thinking, and still others have evoked a few laughs.
The whole practice has been controversial among attorneys on both sides -- worried about losing control of the points they hope to score with each witness's testimony -- who argue quietly with Walton at the bench over what can be asked.
In answer to yesterday's questions, Miller testified that she went to jail because she had given Libby a promise of confidentiality and that she had stored the notebook in a bag because she was planning to take it and other material home from her office.
Other witnesses have prompted other questions. Last week, several jurors were fixated on CIA briefer Craig Schmall's testimony about notes he had written on the margins of his June 14, 2003, briefing book, which included a reference to Wilson's wife working at the CIA when he briefed Libby on national security issues at Libby's home that Saturday morning.
"The handwritten information -- who would have written that?" Walton asked, reading from one juror's question card.
Schmall said he had written the notes.
"Were those your thoughts or someone else's?" another juror queried.
Schmall explained that he jotted down notes based on questions asked and comments made by the person he was briefing. In other words, the reason he had those notes was that Libby had said something about Wilson's wife -- testimony that supports prosecutors' arguments that Libby had known about Wilson's wife and was talking about her with government officials and reporters weeks before he said he believed he first learned her identity.
Sometimes the jurors' questions have produced as revealing look into a witness's concerns as any interrogation by the veteran lawyers in the courtroom.
For example, how did Vice President Cheney's press aide Cathie Martin deal with her concerns that Cheney had recommended that she cite what she believed was a top-secret document in her rebuttal of Wilson's criticisms?
"If you had concerns, why didn't you take any action?" one juror asked.
"Because the vice president of the United States had told me to say it," Martin responded. "I didn't know where I was going to go with that."
Another juror asked Martin: "Have there been other opportunities that you thought reporters had not gotten all the facts right?"
"Yes!" Martin said, her eyes rolling. "Reporters often get things incorrect."
While the lawyers may prefer to control the questioning, Walton has told them that it is important for the jurors to be able to probe the things they want answered. He has allowed jurors in his courtroom to ask questions for several years, a rare practice that is slowly becoming more common among some judges.
About 15 percent of state courts and 8 percent of federal courts permit jury questions, and three states require that questions from jurors be allowed: Arizona, Colorado and Indiana.
Though he doesn't use the practice, U.S. District Judge Royce C. Lamberth sees some benefits: It can take more time, but jurors do not have to struggle needlessly about an unanswered question once they begin their deliberations.
"It can tell both sides that something is bothering a juror," Lamberth said, "and you don't want something to bother a juror."
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