washingtonpost.com
Verdict in the Libby Trial

Jeralyn Merritt
Criminal Defense Attorney
Tuesday, March 6, 2007 2:00 PM

Criminal defense attorney Jeralyn Merritt was online Tuesday, March 6, 2 p.m. ET to discuss the noon verdict in the perjury trial of I. Lewis "Scooter" Libby, former chief of staff to Vice President Cheney.

Merritt also previewed the Libby trial and answered questions from washingtonpost.com readers.

The transcript follows.

Merritt has been a frequent contributor of analysis for MSNBC, Fox News, CNN, NBC News, Court TV and CNBC.

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Jeralyn Merritt: Hello, Everyone. It was a sad day for I. Lewis "Scooter" Libby today with guilty verdicts on four of the five counts against him. Let's talk about the trial, I'll try to answer your questions.

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Chicago: Do you believe that Libby has good grounds for appeal? His attorneys did agree on continuing with an 11-jury-member verdict.

Jeralyn Merritt: I do think Mr. Libby has some grounds for appeal. I suspect chief among them will be the court's refusal to allow him to (1) call a memory expert (2) call NBC reporter Andrea Mitchell as a witness and (3) introduce additional impeachment information about Tim Russert.

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Arlington, Va.: Jeralyn: I'm thrilled with this verdict, but not sure that Scooter should do much time -- given that so many others who've done worse things are still working at the White House. Will the judge be required by the so-called sentencing guidelines to send him to prison?

Jeralyn Merritt: The sentencing guidelines will be used in determining the sentence. However, the guidelines are no longer binding and the Court may look at other factors. According to a Washington Post article today, the guidelines likely call for a sentence of one to three years. I have not computed them myself yet.

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Memphis, Tenn.: Now that it's been established by incontrovertible, sworn testimony that not only Libby but Rove and Cheney as well were responsible for leaking classified information, do you think the President will (or should) fulfill his promise about firing anyone responsible for the leak? And do you think anyone who was involved in the leak will (or should) have their security clearance revoked?

Jeralyn Merritt: I don't think the verdicts found that anyone leaked classified information. That charge was never brought. The jury repeatedly was instructed that Mrs. Wilson's actual employment status, that is, whether it was covert or classified, was not before them.

This trial only resolved whether Scooter Libby lied to investigators in the fall of 2003 and the grand jury in March, 2004 and obstructed justice by his false grand jury testimony.

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Austin, Tex.: Jeralyn, thanks to you and the folks at Firedoglake for all your coverage of this historic moment! What do you think of the chances of Team Libby's request for a retrial and/or appeal, and on what grounds will they request it? Do you think having Libby and/or Cheney testify would have helped or hurt the case?

Jeralyn Merritt: Thank you, Austin, TX. It was a great opportunity for bloggers like TalkLeft.com and Firedoglake.com to be able to provide the coverage.

I don't think the odds favor Mr. Libby getting a new trial. That will be decided by Judge Walton, who was about as careful a judge as I've seen, in terms of thinking out his rulings and providing each side a chance to be heard.

As to his chances on appeal, nothing jumps out at me as a glaring error. I'm a bit troubled by the judge's refusal to allow a memory expert to testify on Libby's behalf. I'm sure the defense will raise the refusal to allow them to introduce the video tapes of Tim Russert for impeachment and not being able to call Andrea Mitchell. I can't predict whether any will result in a reversal.

As to Libby testifying, I think that would have been a bad call. Few defendants can pull that off successfully, and with a skilled questioner like Patrick Fitzgerald, it could have made things worse.

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Princeton, N.J.: But surely sworn testimony by several people showed that some members of the White House were involved in the leak, e.g. Rove and Cheney -- thus Bush's promise to fire anyone involved should hold.

Jeralyn Merritt: I agree with you there. We know that many Administration officials talked to the media about Valerie Wilson in the context of Joe Wilson's trip to Niger. Yet, there has been no action taken.

I doubt there will be. That's politics for you.

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Washington, D.C.: Do you believe the jury found appropriately given the way the trial unfolded?

Jeralyn Merritt: Yes. I believe the jury's verdict was consistent with the evidence. I listened to the juror's press remarks after the verdict where he described how the jury arrived at its verdict and what they considered.

Once they found Libby falsely attributed his knowledge of Plame Wilson's employment status to Tim Russert, it was pretty much downhill after that.

There were so many officials that testified they had conversations with Libby about Joe Wilson and his wife, and when considered with the handwritten notes by VP Cheney on the Wilson article asking about his wife's role, I think the evidence was pretty powerful.

Libby's lawyers did a good job of pointing out inconsistencies in the testimony, and in everyone's memories, but they failed in their attempt to establish any motive for the Government witnesses to have lied.

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Manhattan, Kan.: You said one of the grounds for appeal was the judge's refusal to allow the defense to call a memory expert -- wasn't that decision based on the fact that Libby decided not to testify, so there weren't any grounds for claiming his statements to law enforcement were based on faulty recall?

Jeralyn Merritt: No, the decision to refuse to allow the memory expert was done before trial, at a time when all believed Libby would testify.

It may be that had the memory expert been available to explain the principles of memory to the jury, Libby would have decided to testify.

While the judge gave a memory instruction to the jury, it could not have had the same impact as hearing it from a live witness. The expert could have testified to the many factors influencing one's memory and ability to recall.

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Kalamazoo, Mich.: Can you elaborate on the verdict on the one charge that he was found to be not guilty?

Jeralyn Merritt: He was found not guilty on the charge that he lied to the FBI in the fall of 2003 about his statements about his conversation with Time Reporter Matthew Cooper.

This was the most "he said/he said" count in the Indictment. In other words, it was Cooper's recollection against Libby's. There was insufficient evidence to back up Cooper's version: his notes didn't reflect what he remembered Libby saying, he didn't include it in his e-mail to his editors right after the conversation, and his notes were woefully mistyped and incomplete. At the press conference today, juror said they couldn't be sure which version to believe. That left them with a reasonable doubt on that charge.

I always thought that Cooper charge was the weakest of in the Indictment, an opinion held by many trial observers.

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Frederick, Md.: Do you think the so-called "Sealed vs. Sealed" indictment now can be opened?

Jeralyn Merritt: There is an indictment in a sealed case that many believe is tied to the Libby case. But, no one knows that. Since there is no public information about the case, it's impossible to say.

It may be that one of the players in the case who was not a witness at trial got a plea deal and it was agreed to keep it sealed until after the Libby trial. But, that's tea leaves. It could just as easily relate to some drug trafficker who's a fugitive. In that case, the indictment wouldn't be unsealed until his arrest.

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Pittsburgh, Pa.: What do you think the Libby trial has done for the careers of Fitzgerald and Walton?

Jeralyn Merritt: It's a huge boost for Fitzgerald. He went up against great and high priced defense lawyers and he won. He is terrific in the courtroom -- methodical, concise, pleasant. He had no rancor about him. I think his reputation as a formidable prosecutor will be enhanced.

My respect for Judge Walton grew considerably during the course of the trial. In the beginning, I thought he was trying to hard to rule in a way that "split the baby" so to speak. But as the trial progressed, and I learned to follow his reasoning, I thought he was extremely fair and contemplative and very conversant with the law.

I think he will garner much praise for his conduct of the trial, and I think it will be deserved.

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Washington, D.C.: How would you rate/assess the performance of the prosecution and defense attorneys?

Jeralyn Merritt: I thought both sides were immensely well-prepared. Preparation is the key to any good defense. I saw no dissension among team members. All of the lawyers seemed very committed to their positions.

All of the lawyers were good questioners in court. I thought Ted Wells dragged on a bit in a few of his cross-examinations but that he was excellent in making legal arguments to the Court. His closing, which I found a bit unfocused and too fast in delivery, was delivered with enough passion to more than make up for that.

Bill Jeffress was a very effective cross-examiner in my opinion, and John Cline knew his CIPA stuff backwards and forwards.

On the prosecution side, as I said in another answer above, Fitzgerald was terrific. He had an amazing grasp of the facts of the case. He was concise and to the point.

Zeidenberg's closing was excellent. He really laid the case out for the jury in a way that made sense and provided a roadmap for them to follow. Debra Bonamici was an excellent advocate on legal positions.

Sorry to be so positive about them all, but they were all highly skilled and capable. It's a pleasure to watch trials with good lawyers.

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Boise, Idaho: Why did Libby's defense team, in its opening statements, refer to a theory (that Libby was the fall guy for Karl Rove) that they didn't pursue? Was that a mistake? Any other errors by the defense?

Jeralyn Merritt: I think it was a mistake to try and make Karl Rove the fall guy. I have no idea where they were going with that since as the Government later proved through videos of former White House spokesperson Scott McClellan, after Rove got cleared in the press, Libby got cleared.

The juror who spoke to the press today acknowledged that the jury wondered why Libby was being charged but not Rove and others, so I suspect it didn't hurt the defense. Also, Wells was smart in his closing not to try and disavow the statement. He used it as a way of trying to rebut Fitzgerald's claim that Libby had a motive to lie.

It ended up being a very minor part of the trial. Sometimes, defense theories fly with the jury, and sometimes they don't. This one was a lead balloon.

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San Luis Obispo, Calif.: Regarding the not guilty verdict on lying to the FBI: I was amazed to learn that the FBI does not tape record interviews but instead relies on hand-written notes. The FBI witness did not come across as a reliable note-taker in this trial. Will this verdict prod the FBI into a re-examination of this policy? It's time for them to come out of the Stone Age.

Jeralyn Merritt: I agree with you that FBI interviews should be tape-recorded. Interviews by any law enforcement agency with suspects and witnesses should be recorded. In this electronic age, there's no reason not to.

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Centreville, Va.: Provided his conviction is upheld, will Libby be disbarred?

Jeralyn Merritt: I'm not sure what state he's licensed in, but yes, a felony conviction usually results in losing one's law license. Some states allow you to reapply after a certain period of time however.

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Re: Tearful attorneys: Without trying to sound too cynical, were Wells' tears during his summation "strategic"?

Jeralyn Merritt: No, I don't believe his tears were strategic. I watched him closely. He was clearly caught up in his own argument. He's become very attached to his client and the case. It was only one tear, or so it seemed to me. His voice did crack.

What I remember most is that right after he finished, he sat down and stared at the floor, never looking at the jury or Fitzgerald as he was giving his final summation. He clearly was overcome by emotion -- in my opinion.

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Ann Arbor, Mich.: Hi Jeralyn -- love your talkleft blog. From the perspective of a defense lawyer, do you think Libby's defense team made any key errors? Or did they do the best they could with what they were given? Thanks!

Jeralyn Merritt: I think they did the best job they could with what they had. Their cross-examinations were very thorough. They were in excellent command of the evidence.

As defense lawyers, we have to accept the "facts beyond change." In this case, that was Libby's grand jury testimony. It was what it was. They tried hard to work around it, but in the end, they were stuck with it. And without a viable memory defense, whether through a memory expert which the Judge didn't let them call, or Libby's own testimony, there was only so much they could do.

There were just too many witnesses who testified they had discussed Wilson's wife with Libby before his conversations with reporters. The jury just didn't believe he could have forgotten those conversations.

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Newburgh, N.Y.: Do you think the prosecutor's theory as to motive was persuasive?

Jeralyn Merritt: No, I wasn't personally convinced by the prosecution motive. As a defense lawyer, it required too many inferences and wasn't backed by enough evidence for me. On motive, I had a reasonable doubt.

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Bridgewater, Mass.: Libby must have had legal advice before he went on the record with Fitzgerald -- could a lawyer have suggested saying he just forgot, based on the assumption that it's almost impossible to prove what a person actually remembers? Does a lawyer have an obligation to instruct his client to tell the truth, even if not the whole truth, when dealing with a prosecutor? Or can he help him rate the odds of getting caught in a lie of this kind?

Jeralyn Merritt: A lawyer is never allowed to help a client cook up a false story. Nor to present perjured testimony.

Libby did have legal advice before meeting with Fitzgerald and the grand jury. I think he told his lawyer what he remembered hearing and how he remembered the sequence of events and his lawyers created a defense using what he told them.

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Washington, D.C.: Does Libby's guilty verdict have legal implications for Cheney and Rove?

Jeralyn Merritt: According to Patrick Fitzgerald today, the investigation is now inactive, the prosecutors are going back to their day jobs and no further charges are anticipated.

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Washington, D.C.: Will Libby get a pardon?

Jeralyn Merritt: That is anyone's guess. Mine would be that if Libby maintains his silence and stoically goes off to do any sentence the judge imposes, he will get one before Bush leaves office. But, that's a political opinion, not a legal one.

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Jeralyn Merritt: Thanks to all for participating. It's been a unique trial and I appreciate the Post's opportunity to answer some of your questions. The hour went much quicker than I thought.

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