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Method To ‘Derive’ Wecht Juror Names Does Not Stand Scrutiny
The Administration has collectively asked the public to believe they obtained the list of seated Wecht juror names by deriving the names from the list of prospective jurors.
The derivation method is a ruse: The government would have to know things in advance to properly do this. This defies reason.
The first comment below discusses in detail the basis for this assessment.
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Method To ‘Derive’ Wecht Juror Names Does Not Stand Scrutiny
The Administration has collectively asked the public to believe they obtained the list of seated Wecht juror names by deriving the names from the list of prospective jurors. The derivation method is a ruse. The government would have to be physically doing things before it was possible they knew they needed to do it.
Long Title: The President Retroactively Fabricated A “Derivation” Method To Explain Away Non Law Enforcement Goals Served With Improper Wecht Jury Home Visit
Wecht Jury members were contacted at home. The court said the names of the seated jurors could not be recorded. The government would have us believe the FBI and prosecutors “derived” the list from the list of prospective jurors.
However, to support this “derivation” the President and others would have to take action before these adverse decisions. Yet, the President and others were surprised by the court decision not to permit post trial jury interviews. They would have us believe they were denied the chance to contact the Wecht Jury after trial, and had to conduct FBI home visit with the Wecht Jury.
This discusses why the events implicitly related to the “derivation method” do not support the government’s contention that they “derived” the names from any list, but improperly had access to the written list of seated juror names to support the FBI home visits.
This analysis reviews the Wecht Jury Tampering. The government has implicitly argued that it took permitted action in deriving the names of the seated jurors; then used that derived list to implement a plan to contact at home the Wecht Jurors.
Our analysis strongly supports the conclusion this explanation was retroactively created. The real method to derive, acquire, transcribe, or speculate on the seated jurors is less important than understanding: The motivation to acquire the names of the seated jurors was heightened after the prosecution lost the case, something, going forward, unexpected.
For purposes of discussion, the above milestones are points in time; and between them there are separate phases
It is our contention there is confusion within the government on the timing of the “derivation” of the list: Was it before or after trial.
Let’s consider the government discussions during Phase I.
Going forward from the time the court was planning to prevent the prosecution from recording the names and “seal” the names of the jurors (before the names of the seated jurors were known, released, or announced in court), we need to consider what motivation, if any, the government had to acquire, record, document, list, or obtain the list of the seated jurors.
It stands to reason, going forward from the time before the court announced the names of the sealed jurors, that the US government had no need to every contact the jurors after trial: The government expected to win the trial.
Once the government started with the assumption “it was going to win the case” nobody can well point to a reason why the government would want to contact the jurors after trial. Going backward, it’s unusual, absent this objective, to explain why the government was doing something to “derive” juror names, without a clearly stated reason. This is compounded when we consider the argument that the US government supposedly routinely interacts with jurors after trial.
Nothing going forward from Phase I would signal to the government they needed to do anything as a backup for what was expected to fail Phase IV.
Phase IV prepatory actions depend on knowing something going forward from Phase I that was only known after Phase IV. That is impossible.
Some might suggest the government might have been preparing for an appeal, and wanted to consider other views. Any “other views on facts or the law” which the appeals court might consider, and possibly over turn the case, would have been resolved by the jury, unless the decision of the jury was clearly erroneous. Jury members can make adverse inferences, and make decisions about facts and the law, ignore precedents, and – with the right leadership – create a mess for the prosecution.
There is a difference between recording names of jury members for a vague purpose; and recording the names of the jurors for a specific purpose.
The time the government would most likely have a lawful, coherent, reasonable reason to contact the jury was only after the government realized it lost the case (after Phase IV), and the jury refused to support the government’s position. Once the government lost at the first trial -- but couldn’t discuss the issues with the jury -- then it would have a reason to contact the jury members: To find out what failed.
These are things they would have had to prepare for (inexplicably) in Phase III, long before the “unexpected” happened in Phase IV. Again, that is impossible.
This would not have been possible had the government before trial done something not consistent with the government’s position: Take steps to derive the names of the seated jurors, whom they fully expected to talk to immediately after trial, and never have to talk to at their homes.
The question floating around:
Even if the jury members disagreed, we’re given a different fact pattern: To believe that the “normal” process was for the government to, after trial before the jurors are released, to contact the jury. Suppose that was the “normal” practice; if true, then this contradicts the earlier planning to “derive the names”. If the US Attorneys, even without a trial conviction, were “planning” on talking to the jurors “before’ they were released, there would be no need to “derive the names.” They wouldn’t know they needed to derive anything until it was too late to derive them: It had been too long since the juror names were disclosed in court until the “derivation” process would have started, after the trial was ended.
However, if the government argues that they were deriving the names immediately after the names were disclosed, they cannot explain why – despite the expected option to conduct post-trial interviews before jury release – the government developed a plan to derive the names, implemented that plan, and created a list of seated jurors. The government is stuck with an additional problem: Their explanation – that “post trial interviews are normal” – is at odds with their supposed actions that they said they would implicitly have taken in anticipation that the court would not permit this post trial interview.
The government’s position is that the FBI home visits are “permissible” because the “post trial” interviews were normal; but the government cannot explain why, despite this assertion that this post-trial interview was normal, why the government – before the trial was over – would take steps to derive the names. Nobody needs the names of the seated jurors if the government, as it contends, fully expected the court to hold the jurors after trial until the “post trial interviews” were over. The issue isn’t the names, but the access.
The real story is the government had the names of the seated jurors; improperly planned to use them for an improper purpose; and got caught with something they shouldn’t have had. The secondary issue, but perhaps most interesting, is what real objectives the government had for this information, and conducting these home visits with jury members.
The government cannot have it both ways: Arguing that a post trial interview is normal, as a ruse for why we should accept FBI home visits; but then ask that we believe the government did not expect a post trial interview opportunity, and had to do something before the trial started to derive the names, and have them ready, despite the expectation that the prosecution would succeed with a conviction.
- How does the government explain all this prepatory action, but there was supposed to be a conviction, and not requirement to conduct any interview?
- What signaled to the government that, in advance of trial (during/before Phase III), there might be a reasonable chance (1) the court would dismiss the jurors; (2) the court not accommodate a post-trial interview at the court, (3) requiring FBI agents to rely on a “juror name derivation” liked to actions only possible before the trial started (Phase IV), but only linked with reasons known at the end of Phase IV?
They were doing something before they knew they needed to do it because they didn’t really do what they said, when they said it, or how they said it.
P - - - - - - S - - - - - - D - - - - - C ------ A
P: Prospective Juror List Finalized
S: Seated Juror List Finalized
D: Derived juror list Finalized
[Trial ]
C: Contacts between FBI and Wecht Jury at home
A: Announcement Jurors were contacted
The US Attorney had to assume, before the names were disclosed, during and before Phase III:
A. The prosecution would fail in Phase IV
B. The government would have to talk to the jury after trial, during Phase IV
C. The “normal” process of post-trial interviews, before release, would not work, at the end of Phase IV
D. The government would have to derive the names, during Phase II.
Too much time passed during trial, after the seated juror names were disclosed, for the government to credibly believe recall the US government personnel in the court reconvened and “remembered” the names; then compared those “remembered” names with the list of the prospective jurors. Too much time had passed; and the government would have to have a list of seated juror names to say, “This derived list is accurate.” That defies reason and destroys the basis to believe they needed to derive anything.
If the government’s assertions are true, there would have to be a convoluted nexus:
A. A group of people anticipating (unlikely) future problems;
B. A list of the prospective jurors for a group to “remember” the seated names
C. Explaining how they obtained the implicit “comparison list” required to ensure the ‘derived” list was reasonable.
-Where did this baseline list, one to compare the “derived” with the “seated” list come from? The real answer appears to be there was no “derived” list; nor is the list of prospective jurors relevant.
Prospective Jury List Red Herring
As a caution, and be careful, we’re not saying that the following steps are true or false; only that the following steps – when taken to their logical conclusion -- must have been taken if the government’s story is true. You’ll see, with subsequent discussion, the following events – which should have happened – contradict what we’re asked to believe happened. In so many words, if we are to believe the government’s story – that they derived the list – the government would have to know something, in advance, which is impossible. Thus, we’re most likely left with a retroactive excuse, not a prospective plan, on how the juror names were acquired and used.
We’re asked to believe that the government, while the seated names were read, magically “mentally” took note of the names; then those people who “took note in their mind” of those seated jurors, then reviewed the list of prospective jurors to “derive” the names of the seated jurors.
But that is backwards. Consider what the government would have us believe if this “recalling, then comparison”-derivation method was true:
The government, fully expecting to win the case, would have to (1) develop a plan, (2) organize itself, (3) inform court observers to pay attention, then (4) agree to later meet to review the names of the prospective jurors. The problem with this is that the complete list of prospective jurors was in the neighborhood of 100, while the seated juror names were a fraction of that.
Let’s walk through the steps together required to support the government’s version of events.
1. Government Aware of Pending decision
The court announces that it will, at a future date, make a decision on the names of the seated jurors.
2. Anticipating A Future Need
The government, realizing the seated jurors would not be known or listed, anticipates a requirement to have the names of the seated jurors.
3. Creating the plan
In anticipation of the future need to contact the juror members at home, the government plans to “mentally note” the names of the seated jurors. The government coordinates this plan with the appropriate legal, political, and staff personnel.
4. Court Order
Prosecution team told not to record the names, court discloses the names.
5. Meeting
The government, after leaving court on the day the names were announced, meets to compare the list of the prospective juror names with the names of seated jurors announced in court.
6. Verification
The government uses a method to verify that the names they have mentally recalled accurately match the names on the prospective juror list.
7. Certification
After a review of the mentally-recalled names, the government concludes they have a list of seated jurors which matches the names announced in court.
8. Legal Analysis
The government concludes it did not record, in the court, the names of the seated jurors; and has developed a method that will not violate the court order.
Here are some questions:
A. Why should we believe the supposed “realizing” at 2 -- that the government would need the list of seated jurors -- was real, contemporaneous, and something the government foresaw; and not something that was only manufactured after the government was confronted with the failed prosecution?
B. The DOJ emails show the DOJ Staff coordinated a political-media relations strategy when firing the US Attorneys. Where is the staff coordination with White House legal, political, and public affairs on this planned meeting between the FBI and the jury members?
Back to Reality
The above analysis would have us believe the government – which had attempted to prosecute Wecht before a trial jury, after a grand jury indictment – would think through many steps.
Yet, the government’s success in carrying out plans is questionable. Look at how the Asst US Attorney handled the information about the Wecht Jury conclusions: Rather than getting the information correct after going through the trouble of sending FBI agents to their homes, the US Attorney misstated the information: The majority of the Wecht Jurors were leaning to acquittal; the US Attorney publicly said the oppose, incorrectly reporting the majority were voting to convict.
The Asst US Attorney got it wrong on something very concise and discrete; yet, we’re asked to believe the US Attorney organized the above.
That defies reason.
What’s Most Likely Happened
Keep the above discussion in the back of your mind, but let’s re-step through the events, and comment on what was most likely happening.
The correct position to start the analysis isn’t with this case, but with the GOP agenda outlined in PNAC, and the President. The President isn’t the leader, but he’s the servant of the GOP agenda, as disclosed in McClellan’s book.
Under the GOP agenda and the President are the following players:
A. The White House staff, public affairs, the white House legal office, and the White House political office connected with the GOP
B. The Attorney general, and the DOJ Staff
C. The US Attorney
D. The FBI
The players in this equation are the judicial actors, which include:
F. The court
G. The jury members
The goal of the President and GOP, as evidenced by the Republican attorney affidavit presented to the House Judiciary Committee, was to use prosecutions to affect election outcomes, and secure the GOP agenda and majority.
Part of the agenda included conducting information warfare against American civilians, government officials, and government personnel. The DoD emails show the link between the President and the information warfare personnel in DOJ, CIFA, and the FBI. The DoD information warfare doctrine expressly includes the FBI as part of the intelligence arms of the White House.
Agenda Objectives v. Prosecution Objectives
Here’s where the problem started to surface. The two objectives started to diverge. As evidence piles up, it’s harder to justify one over the other.
Under the GOP, there were two competing agendas: Information warfare, and prosecution objectives. These two do not reconcile.
I. Information warfare
The GOP agenda called for intelligence gathering against the Wecht Jury for the following reasons;
A. To understand the failure of the prosecution;
B. To get information the public was not authorized to get access;
C. To exploit that information;
D. To issue public statements designed to support a future successful prosecution;
E. To mislead the public, discredit the jury, and suggest the problem was with the jury not the prosecution or the inconclusive evidence.
The above was not required as long as the prosecution assured the President the Wecht prosecution was a “done deal” or there “would be” a conviction.
II. Prosecution Objectives
The hung jury was not expected. Once the President and others learned of the Hung Jury, they then contacted the Wecht Jury members to do the following:
1. Find out what failed
2. Dissuade a repeat.
Something broke down. The government did not expect the Wecht Jury members to publicly comment on these FBI home visits, nor raise publicly their concerns about the FBI contacts at their homes. If this were anticipated, the FBI would have, in advance, carefully screened the jury members to contact only those who would not discuss this contact.
The FBI’s problem was they weren’t given all the information about what the jury members, in secret, had discussed or were assuming about the intention of the court in sealing their names. The Wecht Jury members, while in deliberations, began to understand more about the law, and understand the importance of what they were hearing.
If we compare their legal expertise between (a) before they were selected as a prospective juror; and (b) now, after this process and deliberation, we would see they’ve gone through a transformation of experience, insight, understanding, knowledge, and awareness.
Once they were reminded of their solemn obligation to honestly hear the facts, and make an impartial decision, they took that obligation seriously. Once the FBI agents contact them at home, something in the minds of the Wecht Jury members didn’t connect. They had been implicitly told by the court that the purpose of sealing their names, preventing a recording, and ensuring an anonymous jury was to safeguard their deliberations from tampering: The goal, implicitly, was to safeguard the independence of the Judicial Branch.
The Wecht Jury Members knew something was getting in the way of what they believed was behind the extensive litigation to keep their names protected. The jury members may or may not have thought about what “jury tampering” meant from a legal perspective, but some of them felt uncomfortable with the post-trial contact, prompting them to raise publicly their concerns. That discomfort, arguably, is all that is needed to reasonably question the government’s motives in contacting the Wecht Jury at home.
Some might suggest that these post-trial contacts are permitted. That might be true if the court agrees. The problem is, in this case, the jury in hearing their names were sealed, reasonably were led to believe that their deliberations would be confidential, unless one of them voluntarily did something. However, an FBI home visit is hardly a voluntary act: It is a highly intimidating venture to have a government representative out of the blue call, at home, and essentially invite themselves over to ask more questions. The jury members were led to believe that these questions could not be asked over the phone, meaning the FBI agents did not disclose everything. The Jury members, after going through the evidence of the Wecht trial, would reasonably know they were being approached for an unspecific reason, or that the details of those questions were still uncertain. The FBI did not apparently provide in writing to the Wecht jury members a pre-approved list of questions which the jury members discussed with counsel, and agreed, “Yes, we like these questions, and we’ll respond.”
There’s no list of questions the FBI agents provided – in advance – to the Wecht Jury members; and there is no list floating around which the FBI agents left with the Wecht Jury members after the interview.
Someone had to make the following decisions:
A. Which questions are we going to ask;
B. How do we convince the Jury members to agree to a home visit;
C. How can we be vague enough to secure an agreement to visit them;
D. Which questions will we ask; and
E. How do we get out of there without leaving any adverse evidence.
The FBI agents had questions attached to a theme. We need to consider exactly what the FBI agents were doing while these interviews were happening. The Wecht jury members may want to remember:
1. Were the FBI agents taking any notes
2. Did the FBI agents take pauses during the questions, and then continue with their questions
3. After the Wecht Jury members answered questions, did the FBI agents pause, and leave time between answers
4. How long did the home interview take
5. Did the Wecht Jury members notice any cell phones
6. Did any of the FBI agents, during the interview, have a phone call, and have to leave the room to discuss an issue on their cell phone
7. Were there any in-room conversations the FBI agents had with anyone on a cell phone
8. Was there ever an interview of any of the Wecht Jury members with less than two FBI agents?
FBI agents, when they travel in pairs, are authorized to conduct electronic surveillance. The Wecht Jury members should notice the situations where they were only around one (1) FBI agent; or the FBI agents were fumbling with their cell phones. Those are not necessarily real cell phones. FBI agents have recording devices which look like cell phones.
Congress and the public needs to understand which specific transcripts the DOJ contractors made of these FBI recordings; who reviewed the transcripts; and the timing between the first interviews, and subsequent home visits.
The Wecht Jury should be encouraged to be as specific as they can:
1. When were they first contacted
2. Who called them
3. Was the person who visited them at their home different than the person who contacted them on the phone
4. Which specific calendar-date did they get visited
5. How long was the FBI home visit
6. What time of day was the visit
7. What time did the FBI agents leave
The above will tell us a few things about the review cycle, who else might have been discussing the information from the FBI, and how other information was provided to update other FBI questions to subsequent Wecht counsel:
A. What was the timing of all the jury interviews: Was it done on the same day by multiple agents; was there a team of agents assigned; or did one agent do consecutive interviews
B. What kinds of questions did later agents ask based on earlier information
C. What type of updates, changes, coordination, or discussion was occurring inside DOJ after each successive home visit
D. What kinds of timelines was the Department of Justice and White House working on when they were coordinating this information and this plan.
Recall, the NSA, while the FBI is conducting these interviews, can monitoring information transfers and communication; and provide information to the US Attorneys, DOJ Staff, President, and others. The NSA domestic surveillance can be adjusted to help the FBI agents focus their questions, and conduct intelligence gathering on other lines of evidence not immediately connected with the Wecht prosecution.
What types of information from the NSA could the President been using?
What exceptions to the warrant requirement could the President invoke to justify a “training mission” conveniently targeted at the Wecht Jury members, their home phones, cell phones, and the court communications in re Wecht?
Part of this intelligence gathering in support of the President, NSA and information warfare can be to learn how a targeted population, affected by government media messaging, can be inducted to support something. We’re not just talking about a prosecution; but in how the FBI agents might assist the US prosecutors in developing better screening questions to secure a more favorable jury pool. The government’s objective in these contacts could have been to measure how the NSA-supported media messaging was priming the public – well in advance of grand jury selection – to favorably support litigation objectives, increasing the chances of a conviction.
Under this view of information warfare, the mistake is to look at jury tampering as merely a post-trial action against a single pool of seated or potential jurors; but to look at how the government, hoping to bypass restrictions against propaganda and media coverage which might tamper with a jury, to develop media messages that appear to comply with the law, but achieve the illegal objective: Tainting a jury pool to more likely support one legal theory over another. With the right media messaging, and the right screening the Prosecution can increase the chances that the jury pool might appear to be neutral, but is inclined to support a legal theory.
The public needs to understand:
The issue may not be the information itself, but whether or not specific representations in the media would or would not be challenged. The question of “how the jury was leaning” may have been a key indicator of success to shift public support one way or the other. For example, the President, DOJ, and outside media consultants may have forecasted that the public would not likely go back and check the details of what the Asst US Attorney said; and that the public would most likely unfavorable react to Wecht if the majority were told something about how the jury might have voted.
Under the crime-fraud exception, the deliberations in the white House, DOJ, US Attorney, NSA, and the outside media relations firms are subject to discovery. The public and court needs to understand:
When were there discussions on which legal conclusions about the hung jury would most likely prepare the jury pool to more likely support a different media message and trial theory;
Which media relations firm accessed which transcripts of the FBI interviews of Wecht Jury members either on the phone or in their homes;
Which NSA transcripts did the US government and private media consultants review when monitoring which litigation themes the public would respond in these media relation campaigns; and
Where are the copies of the NSA transcripts provided to media analysts who guided the Asst US Attorney to disclose what (misleading) information about the Wecht Jury leanings for or against the defendant.
The government cannot credibly say that this NSA-connected (illegal) media messaging is a state secret when it violates FISA under a dubious exception. The US government works with private contractors to develop media messages. The question is how much of these media messages are designed to achieve illegal objectives: That of tainting an entire population to achieve a partisan legal objective.
Tellingly, despite the FBI agents’ careful “home visits” to collect information on the jury deliberations, the Asst US Attorney got it backwards, and said the majority were willing to convict. In truth, the majority were willing to acquit.
This tells us the following:
1. DOJ did not anticipate the jurors would detect the misrepresentation and provided incorrect information to the public about information the US Attorney thought was closely held;
2. The Asst US Attorney apparently believed the Jury members would not compare notes;
3. The US Attorney and White House-DOJ Staff did not anticipate the jury members would :
(a) Think about the issue after the FBI agent(s) departed;
(b) Review subsequent press disclosures about the case;
(c) Confirm publicly their deliberations did not match what the Asst US Attorney was saying through the media.
Comparing Prospective Requirements With Demonstrated Incompetence
The above three items are important when considering the planning required. We’re asked to believe that somehow, a group that can’t do the above three, was able to prospectively:
Yet, the list of what the US Attorney did not anticipate is long, defying the list of finite things which had to go right. The problem is the divergence: A growing list of things that the government would have to do in advance of a requirement with some divine, prospective insight; but a falling level of confidence that they could accomplish the required tasks to implement this plan.
The more convoluted the plan, the less likely that plan could go undetected, or successfully work, especially when, as now, it appears the government did not anticipate a hung jury or a failed prosecution. The public is being asked to believe something extraordinary: That a government which has trouble getting a simple media message correct, could prospectively develop a plan to derive a list; and yet still not provide a coherent answer:
Why did they want a list of the seated jurors despite the expected victory? The real answer: They never derived anything. They had the list through illegal electronic surveillance; they got caught; and they were doing something outside what the court intended: Jury tampering after trial.
The ruse was to fabricate a story of “how they got the names” which doesn’t add up.
Reconsidering the Event Timelines
Let’s go through this again, as a reference:
Recall, the key problem with the story in phase VI is how to explain why the government was asking for, acquiring, and using the names of the seated jurors.
- Why did the government want the names of the seated jurors?
There is no reason, before Phase II -- before it was known the names would be sealed, or restrictions on recording the juror names -- to worry about jury access. The government would expect the names were public. In anticipation of a legal victory, there would be no reason to spend scarce prosecution efforts developing a plan derive names, listen carefully in court, reconstruct that list, and later to interview a jury pool expected to support the government’s position.
Conversely, until the court announced the names were sealed, the government would not have any need to develop a plan to derive the names, especially in light of the “normal” practice of post-trial interviews with jurors. Yet, look at the required timeframe to develop, coordinate, and implement the plan: There many steps. The longer the court waited, pending the appeals court decision, the less time the government had – in the overall scheme of things -- to develop a plan: The government, in hindsight, would have been notified of the requirement to “derive” the names closer to today. That’s a smaller window of opportunity, which they could not have foreseen before trial when listening to, and not recording the names of the seated jurors.
Yet, we’re still not getting a straight answer: Putting aside whether or not the names of the seated jurors were or were not sealed, what would prompt the government, in advance of a hung jury and trial loss, to argue that it needs the names of juror names? Nothing, unless (perhaps) the government might have been using that information to monitor the homes and phone calls of the jury members; and glean intelligence through the NSA of their emails.
Has anyone asked the question:
Surprises
We contend the government was surprised by the result: A hung jury. It is our view the government thought it adequately prepared the case, screened the jury, and was touching the right legal issues to ensure a conviction.
The problem is the adversarial process which forced the government to face reality, which it still doesn’t want to accept: The GOP agenda of political prosecutions has been grasping at straws, and extending fact patterns well beyond what is reasonable. The jury cannot be convinced of extraordinary claims. In the US Attorney-GOP agenda world, this isn’t something they consider. They don’t view their actions as extreme, but as serving the GOP agenda. The DOJ IG report on Goodling and the US Attorney emails show, in the view of the executive branch, the agenda and the President are above the law.
It is our view the key problem with the government’s explanation – in how they “derived” the names of the Wecht Jury members from the prospective list – is this process requires actions, plans, and questions which would only reasonably be answerable or acted upon after the government knew it lost the case with a hung jury. A hung jury isn’t a win, but a non-verdict.
The alternative requires us to believe that a government, which cannot correctly report simple story about the jury leanings, magically did everything correctly and correctly anticipated many risks, and mitigated them all. This defies reason.
Let’s Start At the Beginning
Forget everything you’ve read above for the moment. Let’s pretend, for the sake of conversation, that the government’s argument is correct:
To accomplish this “derivation” would require confidence in a small list, much less than 100: Someone would have to be able to go back through the “derived” list, and recall, is this name we derived really one we heard while the names of the seated jurors were announced?
The comparison between (a) the derived list of juror names; and (b) the list of names really read in court would require (c) a separate validation list. That separate list could only exist if there was
1. Validation: A recording or a tangible, baseline list to compare with
2. Recalled: The list of remembered names with
3. Prospective: The list of the prospective jurors, to create the
4. Derived: The list the FBI supposedly used.
It’s less important whether that third list was recorded, or acquired. The issue is the long list of steps the government implicitly attaches to itself is convoluted:
There are too many requirements on this list to believe it could be successfully, flawlessly orchestrated. Either it was managed by a highly sophisticated group, which made errors; or the small group made many errors. The common element: There are errors which do not stand up to scrutiny.
This sounds like 9-11 explosive placements: Too many things had to go right; there was only a “small” group involved; yet the number of problems with the chain of events is at odds with what the government would have us believe is possible or possible.
Do Your Own Analysis
Forget what you’ve read above. Do your own analysis. Walk through the steps and you’ll see it doesn’t add up:
- The process the government had to go through to “derive” this list is too complicated
- There are too many tasks to coordinate
- There are too many people required to be involved
- There is too much coordination required
- The skill level to implement this coordination is high
- There is too much planning and foresight needed
- There is a requirement to validate the information, but no explanation how that information as derived
- The probability of detection is too high
The government has shifted the attention from (a) the questionable jury contacts; and focus on (b) whether or not their derivation-theory should or shouldn’t be accepted. They’re shifting attention from the names of the seated jurors, and asking us to argue over whether it possible the government looked at a list of 100 names, and answered, “Yes, that name on that prospective list:
A. “Matches what I heard in court.”
B. “Was stated, spoken, and released”
C. We can verity that name on the list
D. We can call that juror at home and confirm
E. We can compare the names on our derived list and confirm they match the names read in court
F. We can look at the prospective list
G. Recall whether that name on the prospective list was called
H. Remember the name from something certain
We contend the very thing they say was “derived” – the list of seated jurors – had to exist as a separate list – above and beyond their memories and prospective juror names -- to validate the list of “derived names” was accurate.
The “Derived List Theory” appears to be one the US government has presented to distract attention from an inconvenient truth: They improperly had the recorded list of seated jurors with an improper objective. The issue of how they obtained those names appears to be a distraction from the real problem: The government had an improper objective in contacting the jurors at their home, and would have us believe they were not doing anything wrong, but would have us believe their “proper” action is linked with a convoluted process.
The reasonable conclusion is that the real process is simple, and improper; and they don’t want us to know what they really did. This then raises questions about whether their assertion—that what they were doing was proper – should be taken at face value. We reject that presumption of good faith.
Adverse Inferences re Missing Evidence
We content they’ve been caught with FBI agents visiting homes; and are stuck with explaining why FBI agents are visiting people the court (implicitly) told them not to visit by saying the seated juror names could not be recorded.
The evidence is stuck where it is. Either it exists; or it doesn’t. Once the government fabricated the story, the line of evidence supporting that illusion must be fabricated; or there are self-evident holes in that line of evidence.
When there is missing evidence, or it is not available, it can mean that the events never took place. In this case, if the government wants to contend that it “derived” the names, then there should be evidence of that derivation. Without the government evidence, it is reasonable to make adverse inferences.
First, let’s check the evidence. The proposed “derivation” method would create several lines of evidence, discoverable under the crime-fraud exception to privilege:
- FBI discussion and records
- Time-certain data when the following happened:
A. Prospective list of juror names was reviewed;
B. A plan developed to pay attention the names in court, and later agree to meet, and compare those recalled names with the list of prospective jurors;
C. Records of concerns with the plan, and how the objections to that plan – to thwart the court order and develop a list of seated jurors – were overcome;
D. Develop a method to have confidence the “final list” matched the disclosed names in court;
E. Communications of specific people who were accomplishing the above.
The above is a convoluted plan. An attorney participating in this plan would know they are going through extraordinary efforts to “derive” a list, and do something they knew the court did not intend:
1. Creation of a list of seated jurors
2. Harassment of the jury members at home
3. Use of that list for other purposes
A convoluted plan means the government was doing something and taking action which they knew the court did not intend: Subject the jury members to additional attention on a high profile case. The issue isn’t what exceptions the government assigned to itself to engage in this post-trial jury tampering; but what the court did not intend: Post trial Jury tampering and harassment.
A convoluted process, if real, supports the conclusion they were doing something they knew was not intended. It is unlikely the US government displayed a sense of professionalism the DOJ IG says does not exist: Extraordinary, successful, and visionary-anticipatory US government steps. These are not likely. The Asst US Attorney bungle the jury’s conclusions.
This was another GOP “success-oriented” plan, a planning process which failed in Iraq, and would have us celebrate as, “Look the surge worked.” No, the original plan failed, but it took many years for the President to accept that change was required.
If the government will not provide the above evidence, even with the crime-fraud exception, the following adverse inferences are reasonable:
1. There was no derivation;
2. The plan to “acquire” the names of seated jurors is a ruse;
3. There was no plan, going forward, from Phase III to derive the list;
4. The government acquired the names of the seated jurors using a recording, transcription, or other acquisition method which is outside what the court intended;
5. There was no prospective plan to organize the staff to remember these names;
6. The explanation for how the government “derived” the names of the seated jurors is a ruse to distract attention from illegal activity, violation of the separation of powers, and evidence of (possible) NSA monitoring of the judicial branch communications and home discussion jury members have during trial.
Anticipatory Problems
The government will have to explain why, despite the “plan” for a successful trial conviction before a jury, why they would plan for the opposite: A defeat; and then prospectively develop, before the trial started, a plan to “derive” a list of jury names.
This would require a parallel effort, working hand in glove with the US Attorney. While they were preparing a case for trial, another effort, in their universe, would be preparing a backup plan to “derive” a list from the prospective jurors:
- Why didn’t the government expect the “post trial interviews” to work to get the possible information the US government might want from the jury members?
- What information did the government have in advance of trial, that said a non-verdict was possible, prompting pre-trial recording of juror names?
P: Prospective Juror List Finalized
S: Seated Juror List Finalized
D: Derived juror list Finalized
C: Contacts between FBI and Wecht Jury at home
A: Announcement Jurors were contacted
The problem is that they didn’t know this until later: Nobody stood up and said, “With all this concern with Wecht, you should plan – now – in Phase I for a defeat; and start developing a plan to seamlessly acquire the names through a novel non-recording method; then magically derive them by comparing those “recalled” names with the long list on the prospective juror list. These people can’t accurately relay simple information. To believe they can plan something complicated, and implement that plan defies reason. Look at Katrina, the economy, Iraq, the mortgage crisis.
This crew in the Department of Justice can’t adequately report the conclusion of a jury. Who wants us to believe that they can both prepare for trial using (non conclusive) evidence a jury will not agree; but then have us believe they had the “foresight” to develop this backup plan. That defies reason.
The same people who bungle a prosecution, and fail to secure a conviction cannot be presumed – on assertion alone – to have some magical power to “derive” something using a process they, with their failed conviction – have shown they cannot do: Plan, focus, develop a coherent argument, and adequately organize to achieve a desired result. We cannot believe they can do something which they’ve failed to do: Achieve results.
The DOJ and US Attorney’s claims are extraordinary. The same crew botching the WMD issues have failed to credibly argue that they adequately planned this prosecution; or that they could credibly implement the required steps to “derive” this list of Wecht Jury members from the seated names. That’s far too magical, especially for a crew that is given immunity from prosecution, but still lies under oath. How stupid is that?
We contend the requirement to acquire these names of seated jury members would not exist unless the government lost the case. The President and Department of Justice have not adequately explained how they would back-step in time from an imagined failure point, to develop a plan to bypass the intention of the court: Acquire the names of the seated jurors, use them to conduct home visits, and support the information warfare objectives of the President and GOP to consolidate unchecked power.
The Appeal Argument
Some might suggest the government was planning for the possible appeal, and doing this with foresight. This misstates what the appeal process is. No reason to review a “possible” objection a jury might have when the jury – with a verdict – resolved those objections at the initial trial.
Going forward from Phase II, there would be no reason after trial to review the conclusions of a favorable jury. There’s no evidence the government is insecure with itself that it would want a pat on the back saying, “All the jury members agreed with you.” Rather, the government would walk out the door, hands in the air, screaming, “We got him.” A jury conviction would convince the prosecutors their arguments prevailed, and would never think to question that there might be a problem. Self-evidently, with a verdict, the government’s legal theory would have prevailed, and the jury had been convinced to resolve all issues.
Let’s consider the diagram again:
P: Prospective Juror List Finalized
S: Seated Juror List Finalized
D: Derived juror list Finalized
[ Trial ]
C: Contacts between FBI and Wecht Jury at home
A: Announcement Jurors were contacted
The government wants us to believe – despite their “confidence” they were going to prevail with a conviction – that they:
A. Looked to Phase IV, anticipated what would happen; and then
B. Prospectively in Phase II develop a plan, and have it ready for execution once the names of the seated juror was released with restrictions.
That defies reason.
The Names Are A Ruse
Some argue the government prosecutors were familiar with the seated juror names and could instantly recall them by looking at a list of prospective jurors.
That is irrelevant. During jury screening, the prosecutors don’t have the names of the jurors before them saying, “Mr. Smith, your answers are troubling.”
Even if they did, the prosecutors don’t get “familiar” with the jury by name; they either accept them or reject them based on the prospective juror’s answers, not their name. Once that prospective juror is rejected, that prosecutor doesn’t keep that name in their head; nor do they compare it with the list of seated jurors. This crew couldn’t get a simple trial verdict correctly reported to the media. These US attorneys have enough trouble making a coherent sentence when reporting truthfully a jury deliberation result to the media; it defies reason to believe they can – in their mind – remember 100 new names of prospective jurors; and then quickly, upon hearing a list of seated mentally match them with the prospective names; then recall them.
Even if they did focus on the names, that’s 100 names. They’re all the same after a while: they’re just names. Once the names of the seated jurors are read, that doesn’t do anything for them: They still have to go back through the list of names and recall them: Did that name get read? The only way that a name would stand out is if someone, impermissibly, was recording the names of the jury members to match them to their visual appearance. But this isn’t done: the government fully prepared to prevail in the litigation; and there was no reason for the government after trial to revisit the case, and contact them at home.
This doesn’t address the fact that there was a trial. The question then becomes: Despite the order not to record the names, did, during trial, the government monitor – by name – each of the juror reactions, and assign to each juror, by name, specific comments?
If that happened, the public needs to see those notes which recorded during trial, the reactions of the jurors by name to the information they were getting.
Let’s consider the overall planning required to really do this derivation. Who, while they were supposed to be preparing for a prosecution, was supposedly doing this prepatory work to talk, after trial at their homes, with jury members, because there was the “chance” that the court would release the jury “without” permitting post-trial “interviews”?
August 3, 2008 8:48 PM | Reply | Permalink
and now we all see what your crazy little mind spent the weekend working on. You need to get a life buddy as well as get help. You are clearly suffering from paranoia and issues with determining reality from fiction.
Also, please read the judge's order. Until you do so, it is clear you will continue to misrepresent facts of the case such as judicial orders, etc.
August 3, 2008 11:23 PM | Reply | Permalink
As usually, more bullshit by testing. I loved this laughable one. I am assuming that testing, or should I say ladybroak or her real name Virginia has written this diatribe to respond to a simplistic viewpoint that decimated her vivid imaginary tale of the president directly being involved in the Wecht case. As is standard for testing/Virginia, she claims those that don’t buy her bullshit are with the government. While I am not and have not been.
Here is the basic flaw in the analysis presented here. THE NAMES OF THE JURORS WERE NOT SEALED TO EITHER THE PROSECUTION OR THE DEFENSE. The names were provided to the two respective parties at numerous times prior to the trial.
First, the names were provided to the two parties within the initial juror pool was cut down. For those that have been involved in court cases, especially criminal, it is probable that both the prosecution and the defense had prepared files on the various jury members in order to question them during the selection process.
Second, the names were provided to the prosecution and defense, this time only the names of the twelve member jury and the alternates, when the selection was completed. Now after going through a pretty grueling and time consumed juror selection process, the testing/Virginia assumes that the two respective sides would immediately divorce themselves from the knowledge of the jurors’ names. Such is not probable or likely.
So once again, testing analysis is heavily flawed.
Testing/Virginia now argue the government derived the names of the Wecht jurors because testing continues to overlook the fact the names were given to the prosecution and the defense prior to trial. Then as is prone with the conspiracy driven person that testing/virigina is, she goes off on wild speculation. Please recall less than three weeks back, virgina/testing had other issues with reality when she wrote the Israeli Secret police and blackwater were attempting to run her off the road.
This point is also very telling of your flawed premise: To believe that the “normal” process was for the government to, after trial before the jurors are released, to contact the jury. because testing analysis here is fatally flawed yet again. The government contacted the jurors after they were released from the trial. The trial ended on a Thursday and the government began its contact with them on a Friday. So basically, testing/Virginia has once again misrepresented the facts and the record.
Testing/Virginia goes on with another interesting point The issue isn’t the names, but the access yet once again fail to address the fact the prosecution was provided the names prior to trial.
the jury in hearing their names were sealed this statement is blatantly false. As stated before, read the judge’s order. The names were not sealed to the prosecution. Then to go into your crazed talk of bugged cell phones etc, is pretty funny.
All in all, you have a 27 page comment that is a rambling conspiracy driven piece based on a flawed premise. From what is written here, it is clear testing/Virginia is going through some serious denial issues. I imagine working herself up into a frenzy writing one crazed blog posting after another one based on something that is easily proven to be wrong is to much for her to take.
With that said, it is time for testing/Virginia to learn to live with the simple fact that she was wrong.
Also before the other foil hat mafia attempt to jump in and attack me, I will stated the following:
1. The Wecht case is a clear case of a prosecution that should not have been taken forward, especially in a criminal proceeding.
2. The fact that Buchanan has a history of prosecuting Democrats and no history of prosecuting/investigating Republicans known to have been alleged to be involved in similar activities Wecht was accused of is concerning in the fact it makes the Wecht case seem selective. This point was most prominently raised by Governor Thornburgh.
3. Congress needs to review this case and determine if the case was politically motivated or as some have alleged motivated more on the prosecutor’s personal ambitions/goals than the actual merits of the investigation. It is good to report that congress has started a review here.
4. This review needs to take place in order to re-establish faith in the process within the Western District of Pennsylvania.
5. As for GW Bush, he and his fellow compatriots need to be reviewed for the alleged malfeansce and alleged illegal actions that they have taken while in office.
6. Testing/Virginia’s allegation that GW is involved directly in the Wecht case is unproven and serves as a distraction from both the necessary scrutiny the Wecht case deserves for being alleged to be selective in nature and the necessary scrutiny that GW and co. require for their own actions involved in actual scandals, not these fictional ones dreamed up by testing/Virginia.
Tomorrow the appeals court will hear that oral arguments concerning the appeals in the Wecht case that are pending. While it is unlikely that a decision will be made tomorrow, hopefully it will be made relatively shortly. The case has been a waste of taxpayer resources and should be put to an end.
I speculate the case will be dismissed Once the case is over follow at some point in time since no jury ing is going to convict Dr. Wecht, an individual who makes millions from his private practice, of knowingly bilking the people of Allegheny county for free trips to the airport and the use of a fax machine.
At said time, hopefully the wackjobs and crazies such as testing/virginia will find some other poor bastards situation to exploit for their twisted agenda of proving some bizarre belief that GW Bush is some sort of mastermind orchestrating all wrong in our nation and the world.
August 3, 2008 11:18 PM | Reply | Permalink
Also, testing/virginia, my posts are for tpm, not for your other blog known as ladybroak or whatever you call it. Do not repost my comments without my permission.
August 3, 2008 11:19 PM | Reply | Permalink
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