Irving's Ghost

"Can I just make one other comment about this stuff? I get a lot of information in the course of a day. I probably get -- you know, after all this came up I sort of for a few days tried to take a census of how many pages of stuff I get in a day, and I tend to get between 100 and 200 pages of material a day that I’m supposed to read and understand and I – you know, I start at 6 in the morning and I go to 8 or 8:30 at night, and most of that is meetings. So a lot of information comes through me, and I can’t possibly recall all the stuff I think is important, let alone other stuff that I don’t think is as important. And so when a lot of this – a lot of stuff that comes to me, what I will normally do is I’ll gather my staff together and say, ‘hey, what happened here?’ You know, ‘there was some meeting we had on, let’s say, Iraq. What did people say, or what happened last week when we had that meeting? Did State need to do something, or was the Defense Department supposed to do something?’ And we’ll sort of pool our recollections of it and that almost always bring (sic) me a fuller recollection of what’s happened. I haven’t done that here because as I understand it, you don’t want me to do that here. I’m happy to do it at some point, but I haven’t …. I apologize if there’s some stuff I remember and some I don’t, but it’s – I’m just trying to tell you what I do in fact remember." – Scooter Libby; March 5, 2004

The jury in the Libby trial will be hearing Scooter tell the grand jury this little nugget at the end of his testimony. One need not be trained in investigating crime to recognize this pathetic little rambling as a liar attempting to cover his tracks. Proof of this is self-evident: the grand jury indicted Libby for lying. It is safe to assume that the jury today will likewise view Libby with disgust.

It’s important to recognize that "likability" – which Webster’s describes simply as having qualities that bring about a favorable regard – is a significant factor in any jury trial. This was obvious when both the prosecution and defense asked potential jurors about their feelings regarding VP Dick Cheney. It is a factor with each witness that takes the stand: does the jury trust them? Like them? Believe them? Or do they have an internal reaction that warns them to suspect the witness is a snake?

Equally important is the way the jurors view each attorney involved in the trial. It includes the "charm factor." In this case, most people find Patrick Fitzgerald to be an honest man. Judge Walton has commented on this quality when Theodore Wells hinted otherwise during a discussion at the bench. His presentation in the courtroom is powerful.

Teddy Wells is also a polished trial attorney. He is an intelligent, capable man. But he has a client that he knows is guilty as hell. At some level, the jurors are aware of that. And this is a factor in the decision that Team Libby will have to make about whether to call Scooter to the witness stand.

William Jeffress is someone that people who have followed important legal cases respect. He is very good at what he does. In this trial, however, he is not attempting to play the lawyer people like. There is a decided risk in playing the pit bull and attacking witnesses in a case that involves your client having participated in a cowardly attack.

A big part of the strength of the prosecution’s case is the timing. Patrick Fitzgerald has put witnesses on in a way that supports his case for convicting Scooter on every count. Each piece fits together with the larger whole. The defense thus tries to disrupt the flow. While this hasn’t reached the level of an Irving Kanarek, the jury may sense that Team Libby does not want them to hear certain facts. Irving’s ghost may yet haunt Team Libby.

And, finally, the "likability" factor will come into play when the defense begins to put on its case. Assuming that there is no plea deal before the defense starts, they will have to decide if they can risk putting Scooter on the stand. The same thing with VP Cheney: as pointed out on MSNBC, many believe that if Cheney did testify honestly, he would damage Libby’s defense. If he isn’t called to testify, jurors may wonder why they were asked about him during jury selection.

Team Libby also had pointed their finger at Karl Rove during their opening statement. No witness, with only the possible exception of Cheney, is going to strike the jury as more repulsive than Rove. That’s why Team Libby would call him. Rove offers nothing to the case that would factually help Libby – he would be called simply to attempt to gain an emotional response. But, if neither Libby nor Cheney take the stand, the defense would likely be restricted in what areas it might question Karl about.