A jury considering the perjury and obstruction charges against former White House aide Lewis Libby completed a third day of deliberations Friday without reaching a verdict.
The Washington jury of eight women and four men has so far spent about 18 1/2 hours over three days reviewing 14 days of testimony after getting final instructions Wednesday from presiding U.S. District Judge Reggie Walton.
The jury is due to resume deliberations Monday.
The jurors have so far sent out just two brief notes in which they ask for some supplies. They wanted a large flip chart, masking tape, Post-it notes and a document with pictures of the witnesses.
Libby, who was Vice President Cheney's chief of staff at the time, is charged with lying and obstructing the investigation into who leaked the identity of CIA operative Valerie Plame. Prosecutors say the administration was trying to discredit Plame's husband, who was a critic of the administration's rationale for invading Iraq.
A total of 19 witnesses testified at trial. Libby is charged with five felonies: two counts of making false statements to FBI agents, two counts of perjury before a grand jury, one count of obstructing the CIA leak investigation.
The maximum sentence if convicted on each of the 5 charges is 30 years in federal prison, though he'd likely get far less under federal sentencing guidelines.
Libby is not charged with the leak of Valerie Plame's name to reporters. No one has been charged with the leak itself.
Note-taking flaws
During the monthlong trial of former White House aide I. Lewis "Scooter" Libby, notes have been used by FBI agents, journalists or White House aides.
But notes aren't as reliable as one might think. That's true whether they're scrawled in the margins of a business meeting agenda, typed on a secretary's laptop, scribbled on a patient's chart or carefully recorded from a lecture hall blackboard.
Yet, people are charged, front-page articles are written and public policies are decided in part based on those notes. If they are flawed, whose can be believed?
"Based on what I've heard in this trial, I don't know if notes are the best evidence of anything," U.S. District Judge Reggie B. Walton commented midway through the trial.
Jurors, who begin their third day of deliberations in Libby's perjury and obstruction case Friday, must decide how much weight to put on notes that were sometimes sloppy and often inconsistent.
Word filtering
Researchers who have studied note-taking have known its flaws for years. Take college students, for example. Their memories are at their peak, their success depends largely on their note-taking abilities and they practice every day.
Yet only about 30 percent of important classroom information makes it into a typical student's notebook, said Kenneth A. Kiewra, a University of Nebraska educational psychology professor who studies note-taking.
Part of the problem, Kiewra said, is that words are filtered before they make it onto the page. Things we already know often don't get written, he said, nor do things we don't totally understand. And impressions can skew our notes. In that way, notes can become personal snapshots, useful for jogging memory, more than an official record.
Historians have reviewed multiple sets of notes from the same Middle Ages sermon and found that different people created different written records, said Harvard historian Ann Blair. Notes on early inquisitions similarly appear to be skewed by the inquisitor's impressions, she said.
Libby notes
In Libby's case, FBI agent Deborah Bond wrote a report saying Libby "adamantly denied" discussing CIA operative Valerie Plame. The original FBI notes, however, contain no record of that denial. Rather, they say he may have discussed Plame but couldn't recall.
"Adamantly might not be the perfect word," Bond acknowledged at trial.
Prosecutors say Libby told New York Times reporter Judith Miller that Plame, the wife of prominent war critic Joseph Wilson, worked for the CIA. As evidence, they point to Miller's note, set off by parentheses, that said, "Wife works for bureau?"
Miller testified that she believed Libby told her Plame worked for a bureau of the CIA. But she said she sometimes sets things off in parentheses when she already knows information and wants to ask about it. That's how Libby's attorneys want jurors to read those notes.
That's also how Libby handled his own notes as he scrambled from one high-level White House meeting to the next. Sometimes he made to-do lists. Other times his lists were things he'd just learned. And when he crossed things off, sometimes it meant he'd discussed them with the vice president. Other times it meant he decided not to. Only Libby knew for sure.
"Your notes are not X-rays. Your notes are a guide for you," said Roger W. Shuy, a Georgetown University linguistics expert who reviews documents and notes for court cases. "Notes are inherently not complete."
Former Time magazine reporter Matt Cooper testified that Libby confirmed for him that Plame worked at the CIA. That confirmation did not appear in Cooper's notes. Libby says he told Cooper only that he'd heard something like that but didn't know for sure.
Cooper could not explain a line in his typewritten notes that read: "had somethine about the wilson thing and not sure if it's ever."
Libby's lawyers believe that was supposed to read: "Heard something about the Wilson thing, but not sure if it's even true."
When it comes to the credibility of notes, however, Libby's attorneys sought to have it both ways. They told jurors that another FBI agent's notes, which seemed to contradict NBC reporter and government witness Tim Russert, should be believed. And attorneys made it a point to tell jurors that Libby had only one note mentioning Plame.
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Ronald P. Fisher, a memory expert at Florida International University, said FBI agents and reporters have similar problems: Journalism schools and criminal justice classes focus heavily on interview techniques and investigative tactics but offer little in the way of actual note-taking instruction.
"I have a feeling people believe they take better notes than they do," Fisher said.
One of the few reporters whose notes were not dissected in the Libby trial was Washington Post reporter Bob Woodward. He spoke confidently about what he learned about Plame and when he learned it.
He had taped his interview.
NBC's Joel Seidman contributed to this report.
