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Libby's Fate Now Rests In the Hands Of the Jury
Reliability of Memory Remains the Key Issue

By Amy Goldstein and Carol D. Leonnig
Washington Post Staff Writers
Thursday, February 22, 2007

A federal jury ended its first day of deliberations yesterday in the perjury trial of I. Lewis "Scooter" Libby after the presiding judge urged jurors to rely on their "life experiences" in deciding whether the vice president's former chief of staff lied to investigators -- or made an honest mistake -- about his role in a CIA leak.

U.S. District Judge Reggie B. Walton's instructions to the jury of eight women and four men reinforced the issue of the fallibility of human memory that has been central to one of Washington's most celebrated trials in years.

Prosecutors allege that Libby, then Vice President Cheney's top aide, lied to FBI agents and a federal grand jury to obscure the fact that, in the spring and summer of 2003, he aggressively sought out and shared with reporters information about Valerie Plame, an undercover CIA officer. Plame is married to former ambassador Joseph C. Wilson IV, who was emerging then as a harsh, early critic of President Bush and the Iraq war.

The only person accused in the three-year CIA leak investigation, Libby, 56, is charged with five felonies: two counts of making false statements to FBI agents, two counts of perjury and one count of obstructing justice. He is not charged with the leak itself. If convicted of all charges, he would face a potential prison term of 1 1/2 to three years under federal sentencing guidelines, prosecutors outside the case have said.

Libby's attorneys contend that Libby did not intentionally lie, but inaccurately remembered his conversations about Wilson and Plame with administration colleagues and Washington journalists.

The trial has delved deeply into a volatile period inside the White House shortly after the war began, when the administration was vulnerable to political attack because no proof had turned up of Iraqi weapons of mass destruction that Bush had cited to justify the war.

Evidence and 14 days of testimony have shown that Cheney, Libby and other top administration officials sought to discredit Wilson, who was sent by the CIA to Africa in 2002 and concluded that there was no basis for reports that Iraq had tried to buy nuclear materials there. Prosecutors have asserted that Libby told reporters and a White House press secretary about Plame as part of the campaign to tarnish her husband by suggesting that the CIA chose him for the mission because of nepotism.

Before the jurors began deliberations late yesterday morning, Walton provided them guidelines for sifting through the prosecution and defense's contradictory depictions of Libby's memory and the memories of other witnesses.

The judge instructed them to use their "common-sense experience" to assess such factors as how long people can be expected to retain clear memories, the nature of the person or event they were asked to recall, the circumstances that existed at the time and their impressions of the "memory capacity" of the people whose memories were questioned.

"Making an honest statement that turns out to be inaccurate or wrong . . . does not rise to the level of criminal conduct," Walton said. On the other hand, the judge emphasized that the jury should consider inconsistencies the prosecution cited in Libby's account of events.

The jurors have been largely attentive during weeks of complex testimony. Many have taken notes and, under a practice that Walton allows, some have questioned virtually all 19 witnesses at the end of each one's testimony.

At the outset of the trial, potential jurors were screened during lengthy questioning by both sides. Defense attorneys filtered out District residents who said they have negative opinions of the Bush administration or the war. The result is a jury that is relatively apolitical. Many of the jurors are highly educated.

Although most District residents are African American, the jury includes six white women, four white men and two black women.

Under rules Walton set yesterday, the jury will deliberate every weekday from 9 a.m. to 5 p.m.

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