Monday, October 30, 2006

I. Lewis Libby, or Scooter the Memorious

By now, awash in Foleygate and the continuing tragedy of Iraq, you may well have forgotten that the matter of I. Lewis Libby is still working its way through our court system. Most news media have been ignoring the story, but the Washington Post's Carol Leonnig has been in the court house and on the story, and it is thanks to her that we know of the strange appearance of Dr. Elizabeth Loftus last week.

Professor Loftus, you will of course recall, is a memory expert, the author of EYEWITNESS TESTIMONY, and a member of the faculty at the University of California at Irvine. It is her expertise in the study of memory that explains her pertinence to Plamegate and to the Libby defense team.

Team Libby wanted to call Professor Loftus in Scooter's defense, which is to be, as it were, the absent-minded professor strategy. The argument is that Mr. Libby, "Scooter" to friend and foe alike, had not in fact lied to the federal investigators. Rather, he was such a busy man, what with the security of the nation at stake and all, that he simply could not remember having met with a reporter for the purpose of leaking the fact that Valerie Plame was a classified employee of the CIA. The purpose in Dr. Loftus's proffer in court last week was to bolster the argument that, as Leonnig reports, "many potential jurors do not understand the limits of memory" and hence that Libby should be permitted to call an expert witness who could explain to befuddled jurors just how befuddled it was possible for Scooter to have been.

The proffer went badly from the moment that prosecutor Patrick Fitzgerald began his examination of the expert. He quickly had Dr. Loftus conceding that she had often relied on less than scientific methodology in reaching her published conclusions and that she had exaggerated data. "I don't know how I let that line slip by," she offered at one point, speaking of her own writing. Fitzgerald, in the process, demonstrated his legendary command of texts, footnotes and documents.

But in the end, Dr. Loftus did effectively demonstrate one weak memory, at least. She insisted under oath that she had never before met Patrick Fitzgerald.

He gently reminded her that he had previously subjected her to a cross-examination when she appeared before him as an expert witness in a case in New York.

I suspect that if I were ever cross-examined by Patrick Fitzgerald, I would remember it, much as I might prefer not to.

Would that all of us who write had readers as attentive and scrupulous as Patrick Fitzgerald.

No comments: