A federal judge avoided a potential mistrial in the CIA leak case Monday by dismissing a juror and sending the other 11 back to continue deliberating the fate of former White House aide I. Lewis "Scooter" Libby.
U.S. District Judge Reggie B. Walton said the juror had seen or read something over the weekend about Libby's trial.
"What she had exposure to obviously disqualifies her," the judge said.
He did not say what the juror had seen but characterized it as a misunderstanding. He has ordered jurors to avoid media coverage of the case.
Walton originally feared several jurors were tainted, raising the specter of a mistrial in the politically charged case. Libby is accused of lying and obstructing the investigation into the 2003 leak of CIA operative Valerie Plame's identity.
After questioning jurors behind closed doors, however, Walton said the remaining seven women and four men were not affected. Special Prosecutor Patrick Fitzgerald Walton asked the judge to call on one of two alternates, both women, who sat through the trial and are on standby.
But Walton said that would require deliberations to begin fresh and said he didn't want to "throw away two and a half days" of discussions. Instead, he sided with Libby's lawyers and allowed deliberations to continue with 11 jurors — something allowed under federal law in such situations.
"They should continue with their deliberations and I will emphasize again the importance of not having contact with any outside information," Walton said.
The woman who was dismissed from the jury is an art history expert and scholar who formerly served as a curator of prints at the Metropolitan Museum of Art. 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.
Walton has ordered jurors to avoid contact with media coverage of the trial.
Jurors occasionally saw some news coverage during the monthlong trial. Unlike those incidents, after which only one juror was questioned, Walton said each juror would be questioned behind closed doors.
4th day of deliberations
The decision came as jurors began their fourth day of deliberations and raised the possibility of a mistrial if jurors had been prejudiced in the highly publicized and politically charged case. The jury reached no verdict before retiring at the end of the day.
Libby, the former chief of staff to Vice President Dick Cheney, is accused of lying and obstructing the investigation into the 2003 leak of CIA operative Valerie Plame's identity.
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.
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.
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.