The judge presiding over the perjury trial of I. Lewis Libby Jr. dismissed one of the jurors in the midst of deliberations on Monday and ruled that the case should go forward with the remaining 11-member jury.
Judge Reggie B. Walton said the dismissed juror had improperly learned some information about the case outside of the courtroom but he did not explain further. He said it appeared that the juror had not done so intentionally but through some unspecified misunderstanding.
After questioning the jurors, Walton said no one else had been tainted by the information. Jurors are supposed to decide cases solely on the evidence and testimony presented during the trial. Deliberations resumed after the juror was dismissed and were to continue on Tuesday.
The dismissed juror was a woman who had worked for years as a curator at the Metropolitan Museum of Art in New York, before moving to Washington. Walton ruled, over the objections of the prosecution, that he would not replace the juror with one of two alternates on standby and instead would have the remaining 11 jurors continue to try to decide the case. "I don't think it would be appropriate to throw away those two and a half days," he said, referring to the more than 18 hours of deliberations the jurors had completed by Monday morning.
If Walton had replaced the juror, he would have been required to instruct the newly reconstituted jury to begin its deliberations from the beginning, as if there had been no previous discussions.
Theodore V. Wells Jr., Libby's lead defense lawyer, said that to add a new juror and restart deliberations would be prejudicial to his client. "It would be inappropriate and unfair" to discard the deliberations thus far, Wells argued.
Patrick J. Fitzgerald, the chief prosecutor, said that the government believed a replacement juror should be seated and that there was no doubt that the 11 remaining jurors would follow the judge's instructions to begin their deliberations anew.
But Walton said he did not want to "throw away" the time the jury had already spent considering the case.
The alternates are two women who sat through the entire case as part of a panel of 14 jurors and were informed by Walton that they were alternates only just before deliberations began. He told them at the time that they could be recalled to participate in the deliberations if needed and warned them to continue to abide by his instructions to avoid any news coverage of the case.
The decision by Libby's defense team to urge that the trial proceed without a new 12th juror seemed to be counter to conventional wisdom in such situations, lawyers said.
Because a unanimous jury is needed for a guilty verdict, a defendant need convince only one juror of his innocence to avoid a conviction. As a result, lawyers said, defense lawyers prefer to have as many sitting jurors as possible to increase the chances of having someone who refuses to vote for a guilty verdict.