Why the Libby verdict will, most likely, be overturned.

[red-beard]

not advocating the viewpoint, but this Editorial in the WSJ pretty well lays out how Libby will get his conviction overturned on appeal. My guess is that once this occurs, sleeping dogs will lay.

If Memory Serves
By ELIZABETH F. LOFTUS and RICHARD L. STEINBERG
March 9, 2007; Page A14

The jury in "Scooter" Libby's trial has reached a verdict, and a trial of historic significance is over. He stands convicted of serious felonies, and now joins the ranks of such disgraced, high-flying Washington power brokers as Sherman Adams, Spiro Agnew, Bobby Baker, or most recently, Jack Abramoff. But there is one big problem: The absence of expert-witness testimony may have contributed to an unjust verdict.

Our Constitution guarantees every person accused of a crime the right to call witnesses in his or her defense. This right is so critical to fundamental fairness that trials in which it is not safeguarded have been deemed by the U.S. Supreme Court to suffer from a "structural error" so serious that an automatic reversal of any criminal conviction is always required, no matter how heinous the crime.

The central theory of Mr. Libby's defense was that if he made any misstatements, either to the FBI or to the federal grand jury, they were caused by faulty memory -- either his or that of the witnesses who testified against him. For over 30 years, psychological scientists have studied the mechanics of memory and conducted extensive and rigorous research on the subject -- reaching conclusions that are generally accepted in the scientific community. Of signal importance to the jurors in the Libby trial, the science of memory is diametrically opposed to the popular understanding of how the memory and the mind work.

Many people believe that traumatic events will be "burned" into the mind, for example, so that the facts of the experience will be later recalled right down to the most minor detail. In fact, very high stress can diminish accurate recall. More important, memory is not static, like a videotape; rather, it is malleable and subject to change.

Memories change as a result of new information acquired, and people are generally unaware of these changes. Test subjects who watched a movie of an automobile collision, when asked how fast the vehicles were going or when they smashed together, gave higher estimates of speed and recalled seeing broken glass in the aftermath of the wreck (even when there was none) than subjects who were asked the same question using less freighted language.

In another experiment, adults were induced into remembering being lost in a shopping mall during childhood, even though the event never happened. These are only two of hundreds of studies that have been published to demarcate the boundaries of memory, and to determine its strengths and weaknesses. As time passes memories not only fade, but also become more vulnerable to contamination.

The Libby defense team planned to call Robert A. Bjork, a distinguished member of the faculty at UCLA and a person so qualified in his field that the special prosecutor, Patrick Fitzgerald, did not even contest the point. Moreover, the trial judge, Reggie Walton found the proposed evidence sufficiently reliable to satisfy the Supreme Court's stringent Daubert standard for the admissibility of expert-witness evidence.

However, after a day-long hearing (during which one of the authors of this article testified), Judge Walton barred Dr. Bjork from appearing as an expert witness. Essentially, the judge held that the science of memory is not "science" at all, but common knowledge and common sense. He further held that the right of cross-examination was an effective substitute for the right to offer evidence. Finally, he held that the proposed evidence was more likely to confuse the jury than educate it.

There are serious problems with each of these rationales. First, the general rule is that such evidence is admissible, and the question of what weight to give it is for the jury to decide. Furthermore, the proposition that cross-examination is an adequate substitute for expert-witness testimony fails to appreciate how hard it is to introduce scientific facts in this fashion. Cross-examination can expose a witness who has faulty memory, but does nothing to undermine the testimony of a witness who claims certain memory. Cross-examination lacks explanation.

Finally, the suggestion that jurors would be confused by expert-witness testimony ignores actual data showing that jurors don't seem particularly confused by this kind of testimony. Rather, such testimony would likely increase the amount of time that they spend critically discussing the memory aspects of the case -- a benefit to both the government (whose principal goal is to seek justice, not conviction) and the defendant. In the Libby trial, the repeated questions sent by the jury to Judge Walton forcefully demonstrated the crucial need for expert testimony on the mechanics of memory. Far from confusing the jury, expert-witness testimony would have clarified the disputed facts that the jury found so troubling.

The Scooter Libby verdict was neither fair nor just because the jury never heard one of the most important pieces of evidence: an expert explanation of why faulty memory could be consistent with innocence.

Ms. Loftus is a professor of psychology and criminology at the University of California, Irvine. Mr. Steinberg is a criminal defense lawyer based in Detroit.

[island_dude]

Interesting, but I am not buying that this will work. If the theory of memory is that under stress our memories are not reliable at all, then we can give a pass to almost any potential "misstatement". I thing there was more than enough evidence that Libby knew exactly what he knew when he testified and lied. The testimony of this expert wasn't going to do much to contradict this.

[Joeaksa]

Hey, it makes as much sense as this stupid decision.

[Overpaid Slacker]

Not sure this theory will work, but Rich Lowry did a pretty good job of cataloging the ridiculously deficient memories of the prosecution's witnesses.

In a trial where the defendant is claiming not to have remembered accurately, having each (and I think it was every) witness for the prosecution essentially admit to not having remembered, or having changed Grand Jury testimony... doesn't amount to much of an airtight "our witness' memories are better than your defendant (whose guilt we have to prove beyond a reasonable doubt)".

I'll post links to some of the articles (or the text of a few that I've saved) if anyone is interested.

JP

[jriera]

Probably if you rearrange the letters on 'perjury' or 'misstatement' you can make 'scape goat' ... just a thought.

[RallyJon]

I think it's pointless to post-mortem the case based on the snippets that were in the media: the jury heard it ALL and concluded he lied. The interviews with that juror afterwards said that they really didn't want to convict Libby based on the big picture, but it was clear he lied.

From what I know/read of it, he certainly lied. But that's not the point.

It's like Martha Stewart or Clinton or any of the hundreds if not thousands of people who weave a story or selectively remember facts or events in a way that makes them look better. We all do it every day--it's part of human nature.

The real problem started with prosecuting Al Capone for tax evasion: sleazy bastard prosecutors who can't prove their case but who's massive egos won't let them just walk away. They have to fry somebody for something, so they parse every word you ever said and find the inevitable inconsistancies.

[jyl]

I haven't researched it, but one thing the court of appeals might think about is whether you want to admit expert witnesses testimony for every fact witness.

For practically every fact witness who testifies in practically every trial, the reliability of his memory is a key factor in assessing his testimony. Will you let lawyers follow every fact witness with dueling psychologists, arguing over the witness' memory? Besides increasing the length and expense of trials, you risk overwhelming the fact witness testimony with a welter of second-guessing experts, and you risk blurring the line between factual evidence and expert opinion.

This was not a case in which the defendant claimed to have neurological damage or a pyschiatric condition, which would be a more likely situation for expert medical testimony. Nor was this a case of an eyewitness to a sudden event (e.g. crime victim picking someone from a lineup), which also would be a more likely situation for expert testimony. Libby's claimed reasons for forgetting were no different than what many fact witnesses would claim and what jurors experience in their daily lives - distraction, stress, overwork, mind was elsewhere, etc.

Here is an article which touches on the legal framework in which the judge made this decision.
http://news.findlaw.com/andrews/m/ese/20061110/20061110_libby.html

Also, while I didn't pay attention to this part of the trial when it was happening, some quick Googling suggests that the argument presented by Libby's team may not have been as strong as the quoted article tries to make you believe.

It sounds to me like Loftus (co-author) made a mess of her testimony in the preliminary hearing, was dismantled by the prosecutor, and is now trying to rehabilitate her professional reputation (and, presumably, her income from expert testimony).

http://www.washingtonpost.com/wp-dyn/content/article/2006/10/26/AR2006102601612_pf.html

"In the Libby Case, A Grilling to Remember

Friday, October 27, 2006; A21

With withering and methodical dispatch, White House nemesis and prosecutor Patrick J. Fitzgerald yesterday sliced up the first person called to the stand on behalf of the vice president's former chief of staff.

If I. Lewis "Scooter" Libby was not afraid of the special counsel before, the former Cheney aide, who will face Fitzgerald in a trial beginning Jan. 11, had ample reason to start quaking after yesterday's Ginsu-like legal performance.

Fitzgerald's target in the witness box was Elizabeth F. Loftus, a professor of criminology and psychology at the University of California at Irvine. For more than an hour of the pretrial hearing, Loftus calmly explained to Judge Reggie B. Walton her three decades of expertise in human memory and witness testimony. Loftus asserted that, after copious scientific research, she has found that many potential jurors do not understand the limits of memory and that Libby should be allowed to call an expert to make that clear to them.

But when Fitzgerald got his chance to cross-examine Loftus about her findings, he had her stuttering to explain her own writings and backpedaling from her earlier assertions. Citing several of her publications, footnotes and the work of her peers, Fitzgerald got Loftus to acknowledge that the methodology she had used at times in her long academic career was not that scientific, that her conclusions about memory were conflicting, and that she had exaggerated a figure and a statement from her survey of D.C. jurors that favored the defense.

Her defense-paid visit to the federal court was crucial because Libby is relying on the "memory defense" against Fitzgerald's charges that he obstructed justice and lied to investigators about his role in the leaking of a CIA operative's identity to the media. Libby's attorneys argue that he did not lie -- that he was just really busy with national security matters and forgot some of his conversations.

When Fitzgerald found a line in one of her books that raised doubts about research she had cited on the stand as proof that Libby needs an expert to educate jurors, Loftus said, "I don't know how I let that line slip by."

"I'd need to see that again," Loftus said when Fitzgerald cited a line in her book that overstated her research by saying that "most jurors" consider memory to be equivalent to playing a videotape. Her research, however, found that to be true for traumatic events, and even then, only 46 percent of potential jurors thought memory could be similar to a videotape.

There were several moments when Loftus was completely caught off guard by Fitzgerald, creating some very awkward silences in the courtroom.

One of those moments came when Loftus insisted that she had never met Fitzgerald. He then reminded her that he had cross-examined her before, when she was an expert defense witness and he was a prosecutor in the U.S. attorney's office in New York.

Libby's defense team declined to comment."

[fastpat]

Originally posted by red-beard
not advocating the viewpoint, but this Editorial in the WSJ pretty well lays out how Libby will get his conviction overturned on appeal. My guess is that once this occurs, sleeping dogs will lay.

If Memory Serves
By ELIZABETH F. LOFTUS and RICHARD L. STEINBERG
March 9, 2007; Page A14

The jury in "Scooter" Libby's trial has reached a verdict, and a trial of historic significance is over. He stands convicted of serious felonies, and now joins the ranks of such disgraced, high-flying Washington power brokers as Sherman Adams, Spiro Agnew, Bobby Baker, or most recently, Jack Abramoff. But there is one big problem: The absence of expert-witness testimony may have contributed to an unjust verdict.

That's as lame as the infamous "Twinkie Defense" that Dan White used to beat his murder wrap.

[Overpaid Slacker]

I like Charlie Krauthammer, and he's got an interesting article I've quoted below. A point that I hadn't noticed (I wasn't paying strict attention to the Libby trial) was that information -- public record information -- about the faulty (fraudulent?) memory of the prosecution's key witness was not allowed. I think Charlie makes some great points in here (I've made the Berger/Libby "connection" myself elsewhere), but the Russert info is interesting:

Beg Your Pardon
With no further delay.

By Charles Krauthammer

There are lies and there are memory lapses. Bill Clinton denied under oath having sex with Monica Lewinsky. Unless you're Wilt Chamberlain, sex is not the kind of thing that you forget easily. Sandy Berger denied stuffing classified documents in his pants, an act not quite as elaborate as sex, but still involving a lot of muscle memory, and unlikely to have been honestly forgotten.

Scooter Libby has just been convicted for four felonies that could theoretically give him 25 years in jail for ... what? Misstating when he first heard a certain piece of information, namely the identity of Joe Wilson's wife.

Think about that. Can you remember when was the first time you heard the name Joe Wilson or Valerie Plame? O.K., so it is not a preoccupation of yours. But it was a preoccupation of many Washington journalists and government officials called to testify at the Libby trial, and their memories were all over the lot. Former presidential press secretary Ari Fleischer testified under oath that he had not told Washington Post reporter Walter Pincus about Mrs. Wilson. Pincus testified under oath that Fleischer definitely had.

Obviously, one is not telling the truth. But there is no reason to believe that either one is deliberately lying. Pincus and Fleischer are as fallible as any of us. They spend their days receiving and giving information. They can't possibly be expected to remember not only every piece, but precisely when they received every piece.

Should Scooter Libby? He was famously multitasking a large number of national-security and domestic issues, receiving hundreds of pieces of information every day from dozens of sources. Yet special prosecutor Patrick Fitzgerald chose to make Libby's misstatements about the timing of the receipt of one piece of information — Mrs. Wilson's identity — the great white whale of his multimillion-dollar prosecutorial juggernaut.

Why? Because on his essential charge as special prosecutor — find and punish who had leaked Valerie Plame's name — he had nothing. No conspiracy, no felony, no crime, not even the claim that she was a covert agent covered by the nondisclosure law. Fitzgerald knew the leaker from the very beginning. It was not Libby, but Richard Armitage. He also knew that the "leak" by the State Department's No. 2 official — a fierce bureaucratic opponent of the White House and especially the vice president's office — was an innocent offhand disclosure made to explain how the CIA had improbably chosen Wilson for a WMD mission. (He was recommended by his CIA wife.)

Everyone agrees that Fitzgerald's perjury case against Libby hung on the testimony of NBC's Tim Russert. Libby said that he heard about Plame from Russert. Russert said he had never discussed it. The jury members who have spoken said they believed Russert.

And why should they not? Russert is a perfectly honest man who would not lie. He was undoubtedly giving his best recollection.

But he is not the pope. Given that so many journalists and administration figures were shown to have extremely fallible memories, is it possible that Russert's memory could have been faulty?

I have no idea. But we do know that Russert once denied calling up a Buffalo News reporter to complain about a story. Russert later apologized for the error when he was shown the evidence of a call he had genuinely and completely forgotten.

There is a second instance of Russert innocently misremembering. He stated under oath that he did not know that one may not be accompanied by a lawyer to a grand jury hearing. This fact, in and of itself, is irrelevant to the case, except that, as former prosecutor Victoria Toensing points out, the defense had tapes showing Russert saying on television three times that lawyers are barred from grand jury proceedings.

This demonstration of Russert's fallibility was never shown to the jury. The judge did not allow it. He was upset with the defense because it would not put Libby on the stand — his perfect Fifth Amendment right — after hinting in the opening statement that it might. He therefore denied the defense a straightforward demonstration of the fallibility of the witness whose testimony was most decisive.

Toensing thinks this might be the basis for overturning the verdict upon appeal. I hope so. This is a case that never should have been brought, originating in the scandal that never was, in search of a crime — violation of the Intelligence Identities Protection Act — that even the prosecutor never alleged. That's the basis for a presidential pardon. It should have been granted long before this egregious case came to trial. It should be granted now without any further delay.

[red-beard]

The appeal will not rest on the evidence that the expert witness will put forward. The appeal will rest on the fact that Libby was not allowed, by the Judge, to put the Expert Witness on the stand.

[RallyJon]

Perjury/obstruction/etc should be like seatbelt law: if that's the only offense, they can't even pull you over.

[Overpaid Slacker]

RJ -- LMAO!

Libby's "crime" occured after the investigation began, to give Fitzgerald something to "justify" the crusade he kept chasing when he knew the second day of the "investigation" that it was Armitage.

Even IF Libby was wrong, what's the BFD? Did it interfere with the investigation -- when Fitzgerald already knew what happened and when? This is a textbook witch-hunt; especially in a town that didn't even slap Sandy Berger on the wrist for committing a felony and then, obviously lying about it.

JP

[Porsche-O-Phile]

Interesting, but I'm not buying it.

It would probably be a better idea politically for the administration to find some right-wing, tenured-for-life appellate court judge to overturn it rather than having to resort to a presidential pardon, however.

I wonder how much of this might be the SP's way of "feeling out" the defensive tactics that will be employed before training their guns on Cheney. . .

[jyl]

Originally posted by red-beard
The appeal will not rest on the evidence that the expert witness will put forward. The appeal will rest on the fact that Libby was not allowed, by the Judge, to put the Expert Witness on the stand.

Those are related things.

The process is that the party proffers (describes) what testimony the proposed expert will provide, then the judge decides whether to permit the expert testimony, based on the proferred testimony as well as the law on admissibility of expert testimony. In this case there was a preliminary hearing and the defense was allowed to present an expert (Loftus) to testify about why the other expert (Bjork) should be permitted to testify. It appears that Loftus's testimony didn't go well.

The law gives the judge considerable discretion over what expert testimony to permit.

Again, I haven't specifically researched this legal issue, but what I am telling you is that this grounds for appeal is not as straightforward as Libby supporters claim it to be.

[Superman]

Nice try, but Libby will be pardoned by Mr. Bush. The reason? Quite frankly, this "administration" is just a c_nt-hair away from being exposed as the most corrupt and treacherous and dishonest and vindictive in history by a WIDE margin. It's a house of cards and all it will take is just one insider who decides to 'sing.' I think it will happen. Hopefully soon.

[fastpat]

Originally posted by Superman
Nice try, but Libby will be pardoned by Mr. Bush. The reason? Quite frankly, this "administration" is just a c_nt-hair away from being exposed as the most corrupt and treacherous and dishonest and vindictive in history by a WIDE margin. It's a house of cards and all it will take is just one insider who decides to 'sing.' I think it will happen. Hopefully soon.

Yep, they're already worse than Lyndon Johnson's, and are working on becoming worse than Franklin Roosevelt's.

[Overpaid Slacker]

Originally posted by fastpat
Yep, they're already worse than Lyndon Johnson's, and are working on becoming worse than Franklin Roosevelt's.

maybe you're right... but the previous administration set a bar for such conduct that redefined corrupt and vindictive. That'll be hard to beat.

JP

[fastpat]

Originally posted by Overpaid Slacker
maybe you're right... but the previous administration set a bar for such conduct that redefined corrupt and vindictive. That'll be hard to beat.

JP

Compared to Bill Clinton, George W. Bush is far worse. I opposed most of the Clinton administrations activities; but if I had to choose between having Clinton for 8 more years instead of Bush II, knowing what I know now, I'd have to choose Clinton without question.

It's not that Clinton was a good president, he was not; it's that Bush II is that bad.

[Jim Richards]

If a pardon's not given to Scooter before B2's term is up, Scooter's "going to Federal POUND 'EM IN THE ASS prison!"

[fastpat]

Originally posted by Jim Richards
If a pardon's not given to Scooter before B2's term is up, Scooter's "going to Federal POUND 'EM IN THE ASS prison!"

One of the two Border Patrol Agents sent to prison recently for wounding an illegal alien drug smuggler, has been attacked in prison by illegal, felon inmates. The guards, it seems, didn't know or see the event.

Is there nothing the Bush'ists will not do to tarnish America?