Saturday, October 28, 2006
The prosecution of I. Lewis Libby, former chief of staff to Vice-President Dick Cheney, has been in an extend quiet period but reemerged at a hearing in U.S. District Court on October 26. One of the defenses to the perjury and false statement charges has been the "honest-but-overworked-civil-servant" claim, that Libby's misstatements to the grand jury and federal agents were the result of his having wide-ranging responsibilities so that he simply forgot what he said. The defense is premised on the fact that former CIA agent Valerie Plame's identity was of no real interest to him, and therefore he misspoke but did not intend to mislead.
In furtherance of that position, the defense is seeking to use an expert on memory, Dr. Elizabeth F. Loftus from the University of California-Irvine. The government challenged the defense effort to call Dr. Loftus as a scientific expert who would testify that jurors do not understand the limits of memory and that she can explain how a busy person like Libby could have simply forgotten what he said to reporters about Plame. Special Counsel Patrick Fitzgerald apparently had a field day cross-examining Dr. Loftus, according to a Washington Post story (here).
Among other things, Fitzgerald got Dr. Loftus to admit that her methods are not particularly scientific, which may well be the kiss of death for calling her as an expert under Daubert. In a backhanded way, she may have established the point about faulty memory. Fitzgerald asked her whether they had ever met, to which Dr. Loftus stated they had not. At that point, Fitzgerald asked about a case in New York in which she testified for the defense, when he was an assistant U.S. Attorney and cross-examined her. Rather than simply not remembering, perhaps Dr. Loftus wiped that memory clean.
It certainly does not help an expert on memory to be unable to recall someone who cross-examined her once before and to admit that her conclusions are not the result of a rigorous scientific analysis. Whether that keeps her from testifying is another matter. It may be that U.S. District Judge Reggie Walton will permit Dr. Loftus to give limited testimony on memory issues so that there is not a complete denial of evidence on the question that can be raised on appeal if there is a conviction. I'm hopeful Dr. Loftus remembers to submit her bill for the time spent in Washington D.C. at the hands of the Special Counsel. (ph)