Does Scooter Libby have to worry about a racist jury?

Wednesday, November 02, 2005
An attorney, who will remain anonymous for the time being, has slapped me back to reality. This is what the gentleman says about Scooter Libby’s legal dilemma:

“David, what lawyers understand is that even strong criminal cases for the defense remain a crapshoot based on a number of factors, particularly the composition of the jury pool. Despite the transparent nature of the prosecution of Libby, he could be subjected to a very bad jury pool for him in Washington, D.C. Similarly, I never thought that the prosecution in the Nigerian Barge case would ever be able obtain convictions against the Merrill Lynch defendants in that case, but they did. Accordingly, the power of the state to win even weak cases is another reason why the principle of prosecutorial discretion is so important to our criminal justice system.”

Let’s be blunt: Scooter Libby might have to worry about racist black jurors out to get a white Republican. Only a lynch mob could find him guilty in a court of law. In most areas of the country this case probably would not even get to a jury. Yes, racism is alive and well in Washington, DC. There’s no sense pretending otherwise---and it has nothing to with white people victimizing Afro-Americans!


Syl said...

I don't know, David. That whole argument sounds like racism on your part.

As if jurors, being black, are incapable of being conscientious.

I think any prejudicial danger would be from jurors, white or black, inflicted with BDS, rather than from any racism factor.

David Thomson said...

Racism is very pervasive in the Afro-American community. This is the result of the Democrats disgusting efforts to inflame racial anger to help win elections. White racism is almost nonexistent in the United States. It is black racism which is especially rampant in large cities like Detroit and Washington, DC. There’s no sense in hiding from reality. In the situation of Scooter Libby, his number one concern is almost certainly the predominantly black jury which will hear his case.

Knucklehead said...


I believe you've been a bit hasty affixing the racism lable upon DT.

The US jury system plays a very interesting role in the US justice system. Arguments can be made that it is specifically designed (I doubt it but it is clear that there's been evolutionary "progress" in this direction) to allow We the People, on a case by case basis, to deal with potentially overzealous prosuction and/or overly legalistic application of law.

The most common area where this is seen is "jury nullification" with the OJ trial being about the most well know example. But "jury nullification" is a fact of life in prosecution - especially in the inner cities. It is just one of several factors that drives things like plea bargains.

There is nothing inherent in the jury system, however, that limits the effects to "nullification". Juries may themselves behave "zealously". This can be seen most typically in the enormous liability awards juries hand down to "punish the greedy corporations" but it no doubt occurs otherwise in the form of sentences and penalties - or even convictions - that would typically be considere unlikely.

I have no idea if this is something it would behoove Scooter Libby to "worry about". If I were him I'd "worry about" getting the most capable legal representation possible and let them worry about jury selection and issues like change of venue.

David Thomson said...

Patrick Fitzgerald couldn’t get a conviction in most areas of the country. The odds are totally against him. Subconsciously, this prosecutors knows that his chances increase exponentially in Washington, DC, a city where Afro-Americans are encouraged by the Democratic Party to look upon white Republicans as their enemies. Yup, Scooter Libby may have a lot to worry about. It’s not fair, but whoever said life was fair?

vnjagvet said...

Let's face it. There is always a chance of a "hanging jury" in any criminal case.

That is why great care is taken in a high stakes case to find out as much about each juror in a prospective jury pool and to exercise experience and judgment in striking potential jurors who might be unduly inclined to vote against your client.

Racial bias, black or white (I think this is a more apt discription of the problem rather than out and out racism) isn't the only problem. Think about the proportion of democrats to republicans in the District of Columbia. How many of those might be hostile to a high level administration official from the other party?

And more importantly, in even the best of circumstances, a jury trial is, by its nature, a roll of the dice. Many things can go wrong.

The best case that I ever put on of over 100 jury trials, I lost. That was thirty years ago and I still remember the sting of that defeat.

The reason: One juror (who, incidentally, I thought was my "best friend" on the jury) convinced his fellow jurors that my client was not the victim of age discrimination. His reasoning was based on a totally specious argument based on nothing in the record evidence the parties presented.

The case was so good that shortly after the trial, an alternate juror (who would have taken the place of my "best friend" had I chosen him to strike)saw my local counsel in a grocery store, tapped him on the shoulder and asked him how much money we had won.

The lesson: Even on your best days in a jury trial, something unexpected may seize defeat from the jaws of victory.

Dolly said...

Cooper talked about his experience with the GJ being "mostly African American". He said he asked permission to be excused from the forewoman, because she was more intimidating than Fitzgerald.

They asked Cooper questions that weren't surprising.

David Thomson said...

“That is why great care is taken in a high stakes case to find out as much about each juror in a prospective jury pool and to exercise experience and judgment in striking potential jurors who might be unduly inclined to vote against your client.”

This strategy leaves much to be desired in the predominantly Afro-American city of Washington, DC, where racial hostility is encouraged by the local Democratic Party machine. There is no doubt, that on a practical basis, the Democrats are more destructive regarding racial matters than the Ku Klux Klan. They do everything virtually possible to keep their black voters within the fold. White Republicans are often perceived as similar to the devil. In back of his mind, Patrick Fizgerald was thinking of this when he indicted Scooter Libby.

vnjagvet said...


Fitzgerald is an experienced prosecutor. An experienced prosecutor knows his jury pool. 'nuff said.

Your observations are certainly correct even absent ill motives on Fitzgerald's part. I don't think he had anything to do with selecting DC as the grand jury venue. That is where the acts under investigation allegedy took place.

Rick Ballard said...


It will be the basis for a change of venue to northern Virginia only it will be presented on the basis of the disparate Dem registration prventing the possibility of a fair trial. I agree with Vnjagvet that racial bias is a more accurate description but I acknowledge the existence of racism and agree that the Dem party encourages it.

Lesley said...

There is a brief discussion on this matter over at Crank's site: bench v jury trial. One commenter wondered if a bench trial was possible in this case.

Initial Thoughts on Libby

Great to see you all "Blog Adders" together!

jedrury said...

The first smart thing Libby should do is move for a change of venue based on the hour long press conference Fitzgerald gave contrary to DOJ procedures.
DC juries are 60% African American and 98% Democratic. Jury pools are now more diverse with the gentrification of the community. Whites are more prevalent than in the old days.

jedrury said...

a bench trial is only allowed with the permission of the prosecution.

terrye said...

I do think it will be difficult for any member of the administration to get a fair trial in the DC area for a number of reasons.

I think a change of venure is in order.

I think party affiliation will be more injurious than race in this case.