The big issue in the Libby trial now is 'waiver' .....

[Blackhatjack]

It is being reported that Wells, attorney for Libby, 'agreed' to go forward with this jury deliberating with only 11 members.

This raises the issue of whether Libby, by and through his attorney, has 'waived' his right to have 12 jurors deliberate and determine his fate. All it takes is one juror to hang a jury. If I was the defendant's counsel, I would be very reluctant to go forward without that extra juror who could hang this trial.

I am sure the Judge gave Libby the option of having a mistrial declared, since it is not what the sole juror contaminated juror learned from the news source, but rather what this juror told the rest of the jury panel that would contaminate them.

THis will definitely provide lots of fodder for appeal if Libby is convicted, and will likely improve his chances of dragging out a final resolution of these charges even after the verdict is returned.

[displacedtexan]

1. Per David Schuster, the alternate was "hostile" toward defense.

Thus, Wells wants to go ahead with 11 jurors.

[liberal N proud]

2. Isn't there an alternate juror?

I thought it was standard to have alternates.

[KittyWampus]

3. Actually, you're wrong. The transcript shows that Walton preferred to have only 11 jurors

and Fitz wanted 12- that is, an alternate put on.

And since Walton has agreed to these terms, how could there be an appeal on the basis of only 11 jurors?

[H2O Man]

4. Quite the opposite.

Team Libby's position absolutely reduces the possibility of the Judge Walton ruling being overturned.

[bullimiami]

5. why would he give him the option of a mistrial?

he would give him the option of including one of the alternates or continueing with 11 jurors.
there is no question of a mistrial unless the juror infected others on the panel.

[Blackhatjack]

7. The mistrial option has to be seriously considered because ...

...there is evidence one of the jurors was contaminated, and that juror engaged in deliberations with the other jurors. THere is now more than a chance that the deliberative process has been affected. THe only cure is a mistrial unless the defendant waives his right to insist on an uncontaminated jury and proceed with one less jury.

[Blackhatjack]

6. Jury contamination is a very serious issue ... it goes to the heart of a fair trial

Mistrials are declared because the court cannot ensure that the jury will render a fair and impartial verdict.

If Wells wanted to go forward with 11 jurors, and Libby is eventually convicted on one or more charges, Wells will have to overcome his client's decision to go forward with 11 jurors if he wants to raise the number issue on appeal.

However, it is not so much that the one juror was contaminated as what effect it had on the rest of the jury.

After the trial the jurors may talk to anyone they like and reveal anything that went on in the jury room during deliberations.

IF there was anything that qualifies as 'jury misconduct' then the trial verdict may be vacated, and a new trial ordered. Jury misconduct would include one or more jurors failing and or refusing to follow the Court's instructions, and using any kind of 'outside' information to arrive at a verdict in the case.

THis will definitely be fertile ground for an extended appeals process. If Libby is acquitted, no problem. If Libby is convicted you can bet there will be intensive efforts to discern if there was any kind of jury misconduct and that will be argued on appeal.