Libby Jury Seeks Clarity On 'Reasonable Doubt'

By Amy Goldstein and Carol D. Leonnig
Washington Post Staff Writers
Saturday, March 3, 2007

Jurors in the perjury trial of I. Lewis "Scooter" Libby asked the presiding judge for help yesterday defining a core issue in their deliberations: how to set a standard for determining whether the vice president's former chief of staff is guilty beyond a "reasonable doubt."

At the end of its eighth day of deliberations, the foreman of the 11-member jury sent U.S. District Judge Reggie B. Walton a two-sentence note. "We would like clarification of the term 'reasonable doubt,' " the note said. "Specifically, is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt?"

The question, which Walton plans to address when jurors resume deliberating Monday, reflects the central role that human memory played in the month-long testimony in the trial. According to jury and evidence experts, the question -- which refers to what information Libby might have forgotten -- signifies that at least one juror is concerned how strictly to define reasonable doubt.

The concept of reasonable doubt is among the most controversial issues in jury deliberations, experts say, because it is a vague term that people interpret differently. Though the standard is meant to require a very high probability of guilt, research conducted with juries after trials has demonstrated those who worked together to reach a unanimous verdict nevertheless may have used different benchmarks of what constituted reasonable doubt.

Northwestern University law professor Ronald Allen, an authority on trial evidence and procedure, said the Libby jury is wise to seek clarity but added that it is unlikely that any judge can dispel the standard's ambiguity.

"Some people might say beyond reasonable doubt is 99 or 98 percent," Allen said. "Some might say any doubt at all [is unacceptable]. There is literally no test."

Libby, 56, is charged with five felony counts alleging that in 2003 he lied to FBI agents and a federal grand jury investigating a leak by the Bush administration of the identity of Valerie Plame, an undercover CIA officer. Plame is married to former ambassador Joseph C. Wilson IV, a staunch early critic of President Bush's Iraq war policy.

Wilson was sent by the CIA to Africa in 2002 to assess reports that Iraq had been trying to buy uranium for a nuclear weapons program. Wilson concluded those reports were false. Shortly after the Iraq war began, he publicly lashed out at Bush and Vice President Cheney, accusing the administration of distorting his findings to justify the invasion.

Prosecutors allege that, in the spring and early summer of 2003, Libby aggressively sought out information about Wilson and Plame, then channeled word of her CIA job to journalists and the White House press secretary to imply that Wilson had been chosen for the mission to Niger out of nepotism.

The prosecution alleges that Libby deliberately lied to investigators to protect his job and spare the White House political embarrassment.

Defense attorneys contend their client simply misremembered his conversations about Wilson and Plame, because he was so busy with more important work. Special Counsel Patrick J. Fitzgerald sought to convince jurors that Libby could not plausibly have forgotten the conversations.

The question about reasonable doubt is the more significant of two notes the jury sent to the judge when they ended deliberations for the week at 2 p.m. yesterday. The other note concerns the count that alleges that Libby obstructed the leak probe.

Jurors asked the judge how much of Libby's grand jury testimony they should consider when deciding whether he is guilty on that count.

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