The eleven remaining jurors finished their fifth day of deliberations in the perjury trial of former White House aide I. Lewis "Scooter" Libby without a verdict, one day after the judge dismissed one of the panel for having outside exposure to information about the case.
There were no notable jury requests or actions made known to the media during the panel's fifth day of deliberations Tuesday.
The group began deliberations mid-day last wednesday and have worked an estimated 25 hours in total, allowing for lunch breaks. They resume deliberations tomorrow at 9am.
Most of Monday morning was consumed by deciding what to do about an art historian on the jury who saw or read something over the weekend about the trial. After interviewing her in private along with lawyers in the case, U.S. District Judge Reggie B. Walton ruled that "what she had exposure to obviously disqualifies her."
The judge let the jurors continue deliberating Monday with just 11 members after the defense endorsed that option. He overruled prosecutors who asked him to seat one of two alternate jurors who heard the trial and remain on standby.
Walton said he didn't want to "throw away two and a half days" of discussions the jury has had since getting the case at midday last Wednesday. If an alternate had been seated, the jury would have been required to begin its deliberations over from the beginning.
Libby, who was chief of staff to Vice President Dick Cheney, is accused of obstructing the investigation into the 2003 leak of the identity of CIA operative Valerie Plame, whose husband was a prominent Iraq war critic.
Walton never disclosed what the juror had seen, but he concluded the exposure was not intentional and resulted from a misunderstanding of his orders. He has ordered jurors to avoid media coverage of the case and to stay off the Internet.
The dismissed juror formerly served as a curator of prints at the Metropolitan Museum of Art in New York. She was also the only juror who did not wear a red T-shirt as part of the jury's Valentine's Day greeting to the court.
Avoiding a mistrial
Usually defense attorneys want the largest number of jurors available because they only need one to hold out against conviction in order to force a mistrial, said Lawrence Barcella, a prominent Washington defense attorney who spent 16 years here as a federal prosecutor. "This is surely a well thought out calculation for the defense based on the jurors they have, the way they guess the deliberations might be going, and who the alternate would be."
Ultimately, however, decisions like this are "guesswork, tempered by the experience and instincts of very experienced attorneys who have demonstrated good instincts," Barcella said.
Attorneys picked the jury of eight women and four men after asking them about their political views, their favorite television news shows and what newspapers they read.
Since beginning deliberations last Wednesday morning, the jury has issued brief written notes requesting a large flip chart, masking tape, Post-it notes and a document with pictures of the witnesses
The eight women and four men began deliberations late Wednesday morning and have issued only two brief written notes, which suggested they are methodically reviewing the evidence against the former chief of staff to Vice President Dick Cheney.
15-minute notice
Libby and his lawyers have remained in or around the downtown courthouse throughout the deliberations. Walton has told everyone to be on a 15-minute notice to be back in the courtroom in case of a verdict.
In addition to obstruction of the leak investigation, Libby is charged with lying to the FBI and a grand jury about how he learned and whom he told about CIA operative Valerie Plame.
Prosecutors say he concocted a story to avoid losing his job for disclosing classified information to reporters without authorization. Libby said he gave investigators his best recollection of what happened and any errors resulted from memory flaws.
The jurors include a former Washington Post reporter, an MIT-trained economist, a retired math teacher, a former museum curator, a law firm accountant, a Web architect and several retired or current federal workers. There are 10 whites and two blacks — unexpected in a city where blacks outnumber whites more than 2-to-1.
Libby, who was the chief of staff to Vice President Dick Cheney, faces five felony counts that carry a combined top penalty of 30 years in prison. If convicted, Libby probably would be sentenced to far less under federal guidelines.
The trial provided behind-the-scenes details of the interaction between top reporters and government officials and of Cheney's efforts to rebut criticism of him and the administration.
The case against Libby
The investigation began with the public identification of CIA operative Valerie Plame on July 14, 2003, eight days after her husband, ex-ambassador Joseph Wilson publicly accused the Bush administration of distorting intelligence to push the nation into war with Iraq.
Months later, Libby told the FBI and a grand jury that he first learned that Plame worked for the CIA from Cheney on June 11. But he said that amid the press of war issues and other national security concerns he forgot that and was surprised to learn it from NBC Washington bureau chief Tim Russert on July 10 or 11. Thereafter he said he told reporters he had heard the information only from journalists and could not confirm it.
(MSNBC.com is a joint venture of Microsoft and NBC Universal.)
Russert testified he and Libby never discussed Plame. Judith Miller, who had been a reporter with The New York Times, testified Libby told her about Plame's CIA job before the Russert conversation. Matt Cooper, then of Time magazine, testified Libby confirmed her employment for him. Six government officials testified they either told Libby about Plame's job or discussed it with him between June 11 and July 10 or 11.
The consequences
Walton explained to the jurors that they must weigh the truth of several different statements by Libby in the various counts.
On the obstruction count, Walton said they could find Libby guilty if they unanimously decided any one, or more, of three Libby statements were lies: that Russert asked Libby if Plame worked at CIA and said all the reporters knew it, that Libby was surprised to learn the Plame information from Russert or that Libby told Cooper he'd heard it from reporters but didn't know it was true.
On one count of lying to the FBI, jurors could find Libby guilty if they found either or both of his statements about the Russert call were lies, Walton explained. The other count of lying to the FBI hinges on Libby's statement about the Cooper call.
On two counts of perjury, jurors would have to weigh various Libby statements to the grand jury about how he learned about Plame's job and whom he told, including four separate statements in one count, Walton said.
Prosecutors argued that Libby concocted lies to make his discussions of Plame with reporters appear to be innocent gossip so that he would not risk losing his job for giving them classified information without authorization.
The defense argued that Libby had an innocent lapse of memory, and his lawyer attempted to show that government witnesses also had memory flaws.
NBC's Joel Seidman contributed to this story.