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!
7 comments:
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.
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:
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.
David,
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.
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.
a bench trial is only allowed with the permission of the prosecution.
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.
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