Summations of the Defense vs. the Chicago Bulls team

I wrote an article on Newsinking.com several weeks ago on week one of the Libby trial analysing what goals were both the prosecution and defense trying to achieve in this trial. Here is an excerpt:

"Fitzgerald’s goal is this: to present evidence and testimony that Libby collected classified information and passed it on to several reporters. This is very much cut and dry case for the prosecution. For the defense side, the defense wants create several scenarios for the jury in order to create a confusion: Libby was too busy and overwhelmed with National Security matters that he clearly can’t remember what he said to whom. Libby just clearly forgotten and didn’t intentionally lie or mislead the FBI investigators and the grand jury. Libby is not the primary leaker and so on. The defense’s strategy is simply to create a reasonable doubt in a few jurors’ mind that Libby didn’t intentionally lie or make false statements. "

Since the defenses' sales pitched opening arguments claiming that Libby was an scapegoat and the promised witnesses to back up this story didn't pan out, the defense will lean towards two strategies:

One strategy is to confuse the jury beyond a reasonable doubt. From FDL: "A well done Defense summation will cause a juror to believe that if they have any sense of hesitation or if they have any question that they cannot point to or infer an answer for, that must somehow rise to the level of a reasonable doubt." Defense needs only ONE juror in order to get a hung jury for mistrial to "do over".

The second strategy is jury nullification. "Jury nullification occurs when the jury sees that the facts are as the Prosecution said they would be, the law is as the Prosecution believed, the Defendant is clearly guilty, yet the jury will refuse to do its duty and convict. " And interesting comment from Emptywheel:

Throughout this trial, Wells has stated that Armitage and Rove were the leakers, in spite of the fact that Libby, too, had a conversation with Novak in plenty of time to leak Plame's identity and in spite of the fact that Libby clearly did his share of leaking. In dealing with Ari, Jeffress clearly suggested that Ari should be charged with perjury for not admitting that Pincus is his source. Fitzgerald has charged that this is an attempt at jury nullification. That is, he is suggesting (and it's a very serious charge) that Team Libby is trying to get the jury to believe that it was wrong for Libby to be charged and that, in spite of all the instructions they will get about the seriousness of obstruction and lying, he should not be found guilty. Fitzgerald is suggesting that Wells is planting the notion that, since Armitage is the big leaker, Libby shouldn't go to jail. Or that, since Ari didn't face charges, neither should Libby.
IMO, there is a big risk this will be successful. I have no idea what Wells will say in his closing statements, but he's sure to bring up Armitage and Rove and Ari again. Add in Wells' statement that "the only way my client is found guilty is if you violate your oath," and I think Fitzgerald's harsh charge is totally fair. Wells appears to want the jury to find Libby innocent because of all the bright shiny objects out there. After all, they only need to pick off one juror.

However, the defense team have their work cut out since they didn't deliver as promise to the jurors in their opening arguments:

a) Libby was an scapegoat for Karl Rove.

b) Testimonies from government officials to back up Libby's story of bad memory and overwhelming National Security work.

On the other hand, the prosecution team delivered their promise to the jurors: a cut and dry case that prove Libby committed perjury and a consistentand much detailed timeline of the events that led up to the events of leaking Plame's name to the reporters, and very strong government witnesses to prove their case. A very strong and simple opening argument by Fitzgerald and very promising closed arguments by both Fitzgerald and Peter Zeidenberg. Looking for tomorrow's closing arguments ...