The Spectacle Blog

Lost in the Trees?

By on 2.28.07 | 12:56PM

I am starting to get worried about this Libby jury. The notes it sent to the judge yesterday and today indicate that it still is getting into the minutiae of the easiest count, one of the two involving Mr. Cooper of Time mag. This can't be good for Libby. It probably means that the jury is trying hard to figure out whether each statement Libby made was absolutely true or not, rather than whether it was a deliberate lie. I.e., that note, plus its request for sticky notes and other indications of making a great big chart, makes it look like it is treating every discrepancy as possible perjury, rather than as a mere difference in memory among the witnesses. The so-called federal perjury statutes, according to this seemingly knowledgeable web site, must involved the following:

Perjury requires proof that a defendant, while under oath, knowingly made a false statement as to material facts.United States v. Dunnigan, 507 U.S. 87, 94 (1993). The "knowingly " requirement is a high burden: the government must prove the defendant had a subjective awareness of the falsity of his statement at the time he provided it. United States v. Dowdy, 479 F.2d 213, 230 (4th Cir. 1973); United States v. Markiewicz, 978 F.2d 786, 811 (2d Cir. 1992). It is beyond debate that false testimony provided as a result of confusion, mistake, faulty memory, carelessness, misunderstanding, mistaken conclusions, unjustified inferences testified to negligently, or even recklessness does not satisfy the "knowingly " element. See, e.g., Dunnigan, 507 U.S. at 94; United States v. Dean, 55 F.3d 640, 659 (D.C. Cir. 1995); see also Department of Justice Manual, 1997 Supplement, at 9-69.214.

Furthermore, the entire Cooper count never should have been brought, because a perjury conviction under 18 U.S.C. ' 1621 cannot rest solely on the testimony of a single witness, and, at the very least as a matter of practice, no reasonable prosecutor would bring any kind of perjury case based on the testimony of one witness without independent corroboration , especially if the witness is immunized, or has any question as to credibility or truthfulness. As the Supreme Court has made clear, a perjury case "ought not to rest entirely upon "an oath against an oath." United States v. Weiler, 323 U.S. 606, 608-09 (1945). The Cooper counts are a classic example of one man's memory against the other, i.e. of "an oath against an oath."

What all of this means (IMHO) is that perjury should be a rather cut-and-dried issue: If there is a serious debate about whether there was an intentional falsehood, then by definition there is reasonable doubt about either the facts or the motive, and thus the proper thing to do is to acquit.

Nevertheless, this jury now has been deliberating for more than a week, and it is still in the weeds on the very count that should be easiest to dismiss. If it were in the weeds on the easiest count to convict, that would be one thing -- something that could potentially be good for the defendant. But to still be in the weeds on the Cooper count must mean the jury is less interested in motive and faulty memory, and more interested in trying to ascertain whether every single detail is true or not. If I were Libby, I would not be happy. And it's a shame, because (if I have read all this correctly) it means that the jury's standard of proof is erring in favor of the prosecution. I hope I'm wrong, because this whole case is a crock.

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