Posted on 03/28/2007 4:24:13 PM PDT by shrinkermd
Introduction: The difference between a faulty memory and lying may be a 30 year prison sentence. At least that is what Scooter Libby found out. He was convicted of lying to both the FBI and a grand jury about conversations he had with Tim Russert and Matt Cooper.
The Jury decided Libby did not have a faulty memory nor was he confused or simply mistaken when he claimed NBC’s Tim Russert was the first to tell him of Plame’s CIA status.
Russert, a well known media person, denied he told Libby about Plame. Before, during and after the trial Russert commented on air about this matter. On the advice of counsel Libby remained silent during this time.
The jury also believed Libby lied about his conversation with Matt Cooper. To say the least, Cooper was not convincing in his claims-- he did not write his editor and published no articles about his Libby conversation. Six other journalists—Bob Woodward, Walter Pincus, Glenn Kessler, David Sanger and Evan Thomas—denied Libby said anything about Plame.
One of the jurors—Denis Collins—once worked for the Washington Post; he wrote a book on the CIA and was once a neighbor of Russert and may have attended barbecues in Russert’s yard. Collins also had interviewed Bob Woodward and numerous other media celebrities. Collins is a liberal Democrat who commented on Libby’s situation in the liberal blog—the Huffington Post. After the trial he opined that some on the jury were disappointed they had such a small fish and that Rove or Vice President Cheney should have been on trial. Collins also was not adverse to a “pardon;” another juror opined a pardon was desirable.
Juror Collins in the Huffington Post article said that the most valuable testimony by Matt Cooper was:
“…Saturday afternoon. Time's deadline approaching. Cooper is by the pool at the Chevy Chase Club. No cell phones or blackberries allowed. He's running back and forth to the parking lot, trying to reach Libby. Finally, at home, sprawled on the bed, he gets the call and types some notes. At the end of the conversation, he asks Libby if Mrs. Wilson was instrumental in getting her husband sent to Niger. According to Cooper, Libby said "Yeah, I've heard that too" or "Yeah, I've heard something like that too."
Libby acknowledged he actually learned of Plame’s CIA affiliation from and Vice President Cheney. If he, indeed, did lie why would he do so? As an experienced attorney the best lie would have been, “I don’t remember…”
Libby felt and claimed he first heard about Plame from Russert. It was easy to determine he was mistaken. Libby was informed of Plame’s status by a number of Administration officials. He was a passive recipient of this information and not a person actively seeking this information.
All of the above five paragraphs are easily understood, if not explained, provided one has a state-of-the-art understanding of memory. Daniel Schacter’s popular book on memory goes a long way in fleshing out that understanding.
I will review and summarized some parts of this book. Then, I will return to the Libby imbroglio and apply some of Schacter’s conclusions to this case.
The Author: Daniel L Schacter is one of the world’s foremost experts on memory. He is an experimental psychologist. Presently, he is William R. Kenan, Jr. Professor of Psychology, Harvard University.
“The Seven Sins of Memory”. This book is for a general audience. In 2001 this book made the Amazon book of the year list.
Basic Understanding of Memory: Most people assume memory is like a VCR tape or the brain is like a computer. That is, everything is recorded and while recall is difficult, everything is there. This assumption is wrong.
Below is a quote from page 10 Dr. Daniel Schacter’s book:
“…As I showed in my earlier book, Searching For Memory, we tend to think of memories as snapshots from family albums that, if stored properly, could be retrieved in precisely the same condition in which they were put away. But now we know that we do not record our experiences the way a camera records them. Our memories work differently. We extract key elements from our experiences and store them. We then recreate or reconstruct our experiences rather than retrieve copies of them. Sometimes, in the process of reconstructing we add our feelings, beliefs or even knowledge we obtained after the (memory) experience. In other words, we bias our memories of the past by attributing to them emotions or knowledge we acquired after the event….”
Thousands of experiments have demonstrated the truth of the above paragraph:
Memory is “adapted to retain information that is most likely to be needed in the environment in which it operates.” (page 191) Since we seldom need to remember all the precise sensory and contextual details of every experience; memory is designed and produces that information which might be later needed.
Structure of the Book: After the brief discussion of a basic understanding of what memory is (see previous section), the author then goes on to divide the memory into the seven deadly sins of memory. By carving nature at her joints in this matter the author makes this book readable and interesting.
Of the seven deadly sins of memory some are of omission and some are of commission. The sins of omission are transience, absent-mindedness and blocking . The sins of commission are misattribution, suggestibility, bias and persistence. Each of the sins is discussed in detail; however, I will primarily focus on those sins of memory most applicable to the Scooter Libby case.
Dr. Schacter concludes his book by pointing out these sins are not necessarily all bad--for example , persistence is one of the sins of memory can lead to the a post traumatic stress disorder; however persistence is adaptive since it is important to remember close calls if one is to survive.
The sin of transience: Transience is the forgetting that occurs over time. Necessarily, the past recedes with the occurrence of new memory. Forgetting has been intensively studied for over a 100 years. Hermann Ebbinghaus was the first to study forgetting and his forgetting curve is now called the “Ebbinghaus curve.”
Forgetting occurs mostly in the early hours and days. Perhaps up to 60% of what is experienced at an event—a Thanksgiving dinner for example—is gone after a few months. What remains is ordinarily the gist of what went on not specific recollections.
The brain is comprised of more than 100 billion nerve cells. With functional magnetic resonance imaging (MRI) and positron emission tomography (PET) scanning , it is possible to locate memory functions in specific areas of the brain.
Some memories can be partially restored with cues and hints. Individual memories can be enhanced by visual memory mnemonics or visualizing emotional experiences.
The sin of absent-mindedness: Divided attention seems to be the culprit here. Memory researchers distinguish between recollection and familiarity. Recollection implies remembering specific details of a past experience. Familiarity implies a vague memory without details but including something of a general nature has happened.
Memory researchers also distinguish between past and prospective memory. Past memory is what is usually studied. Recently, more efforts have been made to understand efforts to remember things in the future—appointments, duties and so forth. Prospective memory is heavily dependent on cues—the proverbial string around the finger to jog an action would be an example.
The sin of blocking: Unlike transience and absent-mindedness, blocking is of a known, encoded memory. Sometimes a retrieval cue will trigger recall, at other times the memory must be provided again. Blocking is most frequent with names of people. Names most susceptible to retrieval blocking are familiar ones that have not been recently encountered. Common names of objects or abstractions are less susceptible to blocking on the basis of being encoded or associated with previous knowledge.
The sin of misattribution: This is the first of the sins of “commission.” This sin is assigning a memory to the wrong source. Misattribution includes mistaking fantasy for reality, or incorrectly remembering that a friend told you a piece of trivia when you actually read it in the newspaper. According to Dr. Schacter, “Misattribution is far more common than realized and has profound implications in legal settings. (Page 5)
A great number of experimental procedures proves misattribution is a common problem. Some well publicized, lay examples include the “second” witness in the Oklahoma bombing trial. Here, a government witness claimed to have seen a second “bomber.” What he actually recalled as the second bomber was a person he saw the day after. The government witness misattributed the second person to someone he saw later. Another example was the accusation by a psychologist’s patient that he had raped her at a specific time. Lucky for the psychologist at the time given, he was on television giving a lecture on “memory.” What she did was misattribute his television appearance to his being the rapist.
Each year more than seventy-five thousand criminal cases are decided by eyewitness testimony. DNA evidence clearing individuals of rape has found that 96% of those cleared had been convicted on the basis of eyewitness testimony.
What appears to happen is the linking process in memory permits a binding of one memory to another. Such binding errors can also occur in respect to things that have not even happened—fantasies and imaginary occurrences can be misattributed as well.
>P>In these respects Dr. Schacter states:
“A strong sense of general familiarity together with a lack of specific recollections, adds up to a lethal recipe for misattribution. Understanding this point may be key to reducing the egregious consequences of misattribution in eyewitness testimony.
During Janet Reno’s tenure as Attorney General, she chaired a conference of knowledgeable psychologists and others in respect to eyewitness testimony. What became clear is that eyewitnesses tend to choose from the lineup the person who is most like the suspect. This error can be partially remedied by having the eye witness give a “thumbs up or down” to an individual person. Such an approach might have helped avoid the recent Duke University rape trial.
Another important remedy to misattribution is to encourage witnesses to base their findings on specific recollections rather than overall familiarity.
Misattribution may be the essential error in many cases of alleged plagiarism.
The sin of suggestibility: The sin of suggestibility refers to memories that are implanted as a result of leading questions, comments or suggestions. Like misattribution, “suggestibility can wreak havoc within the legal system.” (Book page 6)
Dr. Schacter begins the section on suggestibility with an outstanding, public example.
In 1992 a Dutch airplane lost power and crashed into an apartment building. Thirty-nine people died in the crash. Ten months later a group of Dutch psychologists probed the crash by asking, “Did you see the television film of the moment the plane hit the building?” Fifty-five of the respondents said yes. Many added details of the film including speed, angle of crash and so forth.
There was one problem with this TV film—it never existed. Over half of the Dutch respondents responded to the suggestive wording of the query with a faulty response. “Spurred on by the suggestive question, participants misattributed information from these or other sources to a film they had never watched.” (Page 113)
Suggestibility in memory refers to the tendency to incorporate misleading information from external sources—other people, written materials, pictures, media—into personal recollections. Suggestibility is closely related to misattribution but misattribution does not require suggestibility.
Elizabeth Loftus, a UC Irvine psychologist, designed a sophisticated experiment subsequently replicated by many. What she did was to show an every day event in slides or videotape and then ask questions with misleading suggestions. Then the subjects were questioned as to what they had seen. False memories resulted where the subjects attributed information from the misleading suggestions as being part of the original videotape or slide show.
What Dr. Loftus has teased out in an elegant fashion is that jurors focus on the reliability of the witness and not the actual recollections. “Juries believe confident witnesses more than uncertain ones…while witness confidence is only tenuously linked to eyewitness accuracy…to make matters worse eyewitness confidence can be inflated when subjects are told another witness concluded similarly… Clearly, eyewitness confidence is not set in stone at the time the event occurs…it is so malleable that a seemingly innocuous confirming feedback—a mere ‘okay’—can inflate it significantly..”(page 116)
Dr. Loftus was called as an expert witness in the Libby case, and this will be discussed later; however, the point is that eyewitness and other testimony based on the confidence of the eyewitness is a flawed concept.
These findings of Dr. Loftus have been previously answered by the SCOTUS when in Neil v. Biggers they ruled that suggestive questioning did not disqualify an eyewitness account if there are grounds to believe that the report is fundamentally accurate. “The Biggers criteria hold that the probable accuracy of an eyewitness account depends on the witness certainty, ability to describe the subject, and initial opportunity to view and pay attention to a crime (as well as on the amount of time between the incident and the attempted identification.” (Page 117)
The Biggers criteria can result in a situation where the premise proves the conclusion and the conclusion proves the premise. Also, Wells and Bradford point out that confirming feedback can influence several of the Biggers criteria; hence, it is mandatory that suggestive techniques not be used in police interviews.
The above discussion may seem boring or academic but in real life situations judges, juries and appeals courts routinely deny state-of-the-art, empirically based memory findings. Outstanding outrages are easily found in the “repressed memory” and other childhood abuse cases of the middle 1980s and early 1990s. I will give two—one discussed by Dr. Schacter and one that was not.
Dr. Schacter discusses the Amirault case. This case is also discussed HERE.
In 1984, a Five-year-old boy told a family member that the bus driver (Gerald Amirault) touched his penis. Gerald was arrested. The children told fantastic stories, including being abused by a clown and a robot in a secret room and animals being sacrificed. One girl claimed Gerald had penetrated her anus with a twelve-inch bladed knife.
Gerald Amirault was charged with molesting 19 children. His mother, Violet Amirault, who owned the center, was also charged. Gerald's sister, Cheryl Amirault LeFave, was also charged with 10 counts of abuse. In the 1986 trial, Gerald was convicted and sentenced to 30 to 40 years in state prison. In the two subsequent trials, Violet and Cheryl were each convicted and sentenced to 8 to 20 years in a Massachusetts state prison. At both trials the children testified in open court sitting directly in front of the jury with their backs to the defendants and their faces to the jurors.
Dr. Schacter notes that none of the children except the first had spontaneously reported anything to their parents. Initially, all the children denied being abused but with repeated questioning and suggestion they agreed they had been abused. Susan Kelly, a pediatric nurse, obtained most of the damaging testimony but only after repeated sessions of suggestive questioning.
Schachter points out that Bruck and others have repeated questioning and suggesting false memories results in 58% normal children reporting some false memories and 25% reporting all of the suggested false memories.
Eventually, the Amirault case came to the Massachusetts Supreme Court. Twenty-nine scientists signed an amicus brief. In spite of this the Court found for the prosecution. Before a new trial was scheduled Amirault LeFave was released in 1999 as a convicted felon and as such she was not permitted to discuss the case on TV or profit from it. Previously, both she and her mother were offered release if the pled guilty. They refused this offer. The mother died of cancer while in prison.
Gerald Amirault remained in prison until 2004; he was released on parole. His release was surprising since Jane Swift, Governor of Massachusetts had denied an earlier parole.
The second case was not discussed by Dr. Schacter. This case occurred in Florida. It was prosecuted, by the elected Dade County prosecutor--Janet Reno. The case is sometimes called the “Fuster Case” or on other occasions the “Country Walk Case” (Named after the upscale suburb in which the Fuster’s lived). A summary of this case can be found: HERE. One of the attorneys doing the appeal (Robert Rosenthal) has a narrative report: HERE.
”Francisco Fuster, of Miami, FL, aged 36, was convicted in 1985 on 14 counts of child abuse. This MVMO (Multi-Victim, Multi-Offender) case involved Francisco and his wife Iliana; allegedly they had victimized more than 50 children. The children related stories of being forced to eat feces, pose for pornographic pictures, take mind-altering drugs, kill animals and submit to anal rape with a crucifix. The children also described the chanting of prayers to Satan, eating someone's head, and riding on sharks. They said that Francisco Fuster threatened to kill the children's parents if they were exposed. This case was singular in that there appeared to be some hard evidence supporting the allegations: Jamie Fuster, their 7 year old son, tested positive for gonorrhea of the throat.
”This is the famous Country Walk Case, named after the affluent suburb of Miami where Iliana Fuster operated a small baby-sitting service. The case was triggered by a boy who was baby-sat by Iliana. He told his mother that Iliana kissed babies' genitals. Apparently, kissing naked babies is common and accepted behavior in the rural Honduras culture. A police investigation followed in which investigators Joseph and Laurie Braga interviewed dozens of children. After what have been called "...patently leading, deceptive, and coercive questioning methods" the children disclosed large numbers of allegations of bizarre and violent acts. Janet Reno, then head prosecutor, took a personal role in prosecuting the case. Ileana Fuster, then aged 17, was arrested and kept in solitary confinement in a tiny cell with 24 hour illumination. After 6 months, she was depressed and felt terrorized. She was suffering from inadequate medical attention, insomnia and sores on her skin. She was given relaxation and visualization treatments, and was highly manipulated by psychologists. A year later, she broke down. She had been offered two alternatives: to plead guilty and testify against her husband and receive a light sentence, or plead innocent, be found guilty and spend the rest of her life in jail. She still maintained her innocence, but pleaded guilty in order to "get all of this over....for my own good".
”Medical experts found no anatomical evidence of sexual abuse, even though signs would have been present if the abuse had actually occurred. All of the children were tested for gonorrhea of the throat. One test came back positive, and provided the only "hard" evidence at the trial. After 7 hours of grilling, the 6 year old boy finally broke down and said that his father had abused him. He retracted his "confession" as soon as he was free from the interrogation; he maintains to this day that there was no abuse at Country Walk. Three years after the trial, the test used to detect gonorrhea was found to be unreliable; at least one third of the positive STD results were "false positives." The test could not differentiate between gonorrhea and benign bacteria that are often found in children's throats. It is highly unlikely that the boy actually had gonorrhea.
Ileana was tried, convicted and served 3 years and 6 months in a juvenile prison before being deported to Honduras. She later recanted her confession and issued a lengthy sworn deposition, citing the abusive isolation and interrogation as reasons for having previously lied about the abuse. Her husband received a sentence of 6 life terms and 165 years in prison. (He had previously been convicted of manslaughter as well as sexual activity with a minor. Notwithstanding his previous record the sentences were seemingly severe)
In 2002 Frank Fuster appeared on a special PBS documentary. He was questioned and this is an example of what he said: < P>Frank, did the state ever offer you a deal?
Oh yes. They insisted. They offered me 15 years, regular 15 years. And if I had taken those, I would have been home 10 years ago.
Why didn't you take it?
Because I am innocent. I went to trial not only for me. I went to trial also for the children. I went to trial for Ileana. I went to trial for everyone involved. Someone had to say the truth. I decided to do it, and I did.
The URL for the above can be found: HERE.
I do not know what happened to Mr. Fuster after 2002. If anyone knows I would appreciate the information.
One outcome of the Furster case was the development of the “Miami Method” for investigating child sexual abuse. Janet Reno achieved fame and notice for this method which was:
”The so-called "Miami Method," developed in the 1980s by the office of Dade County State Attorney Janet Reno, became a national model for vigilantly pursuing day care sexual abuse cases. Reno set up a special children's unit inside the state attorney's office staffed with "child experts" who specialized in cases of child sexual abuse. The "Miami Method" utilized videotaped interviews with children and expert testimony assuring jurors that the children should be believed. A state law was changed to allow the children to testify from the judge's chambers. The method also required physical evidence and the testimony of an adult eyewitness.”
The so-called "Miami Method" was first used in the case of Frank Fuster. It was also used to prosecute two other day care sexual abuse cases -- Grant Snowden and Bobby Fijnje.
Snowden was sentenced to five life terms. After spending 12 years in prison, Snowden's case was overturned in 1998 in a federal habeas appeal.
Miami prosecutors charged 14-year-old Bobby Fijnje with sexually molesting a group of children he baby-sat at church. He was held in the Miami Juvenile Detention Center for two years, refused the state's offer of a plea bargain, and finally stood trial. The jury acquitted him on all charges in May 1991
These examples of suggestibility determining complex legal issues show the following: (1) Intelligent, able attorneys expert in the law can easily ascribe to false testimony and convict on this basis; (2) The public will applaud these false prosecutions because they see child molesters as beyond redemption and requiring lifetime incarceration; (3) And, the appeals courts and the criminal justice system will hang onto those mistakenly convicted regardless of data to the contrary.
To be fair at the time of the “Miami Method” little literature was available. It was only through the efforts of Dr. Elizabeth Loftus and others that the issues of suggestibility and misattribution were pinned down and publicized.
The sin of bias: The sin of bias refers to the distorting influences of present knowledge, beliefs, and feelings on both new experiences and past memory. The errors of bias can be categorized as consistency, hindsight, egocentric and stereotypic biases.
Consistency bias: Experiments have shown that people having great pain remember other periods of great pain; however, when they are having less or no pain the high pain memories are less likely. Similarly, present attitudes towards social or political matters generate memories suggestive of the same beliefs and feelings.
Hindsight bias: This is ubiquitous. We reconstruct the past to fit present beliefs and experience. Jurors may be told to ignore testimony ruled out of order; however, experiments have shown that mock juries do not ignore such material even though they deny it influences their decision.
Egocentric bias: The self is powerful in organizing perceptions and memories of reality. Generally, self-serving egocentric bias manifests itself in believing our own version of what happened versus others—this is particularly true when our personal recollections are vivid or accompanied by emotion. Repeated studies have shown individuals generally accentuate positive descriptions of themselves and ignore negative descriptions of themselves. They are also likely to take credit for successes and blame outside influences for failures.
Stereotypic bias: Stereotypes are generic descriptions past experience that we use to categorize people and objects. More often than not we are unaware of the true nature of our stereotypes. Stereotypes shape what is recalled.
Of some interest is Dr. Schacter’s account of left vs. right brain functioning. The left brain focuses on explanation and rationalization. The right brain responds on a literal basis and checks the more error prone left brain.
Dr. Schacter concludes his chapter on bias with the following:
”..Perhaps the best we can do is to appreciate that current knowledge, beliefs and feelings can influence our recollections of the past,and shape our impressions of people and objects in the present. By exercising due vigilance, and recognizing the possible sources of our convictions about both past and present, we can reduce the distortions that arise when memory functions as a pawn in the service of its masters. “ < P>The Sin of Persistence:Persistent memories of a traumatic character result in the repeated recall of events or emotions the individual would just as soon forget. Persistent memories have survival value. Their recurrence makes possible a constant alertness to the dangerous situation.
Memories associated with emotionally charged incidents are better remembered than neutral events.
Traumatic events are not rare—half of women and over 60% of men easily recall one or more traumatic events.
Persistent memories are one of the essential symptoms of Post Traumatic Stress Disorder.
The Libby trial as seen through the prism of how the mind forgets and remembers: Early on I gave you the basic trialfacts. The Libby defense team recognized the importance of memory: hence, about a year before trial they hired Dr. Daniel Schacter as an expert witness. Later, they also secured >A HREF= http://www.msnbc.msn.com/id/14124741/ >Dr. Robert Bjork, the chairman of the Department of Psychology at UCLA.
In the court filings in late July 2006 Libby’s defense team outlined a possible defense as:
”… Libby's attorneys wish to use Bjork's testimony to show why these issues, which they say, "persisted from the time Libby first learned about former Ambassador Joseph Wilson through the summer and beyond, could have easily caused him to confuse or misremember minor details of conversations about Wilson's wife, Valerie Plame, and her job at the Central Intelligence Agency — topics Libby did not consider significant at the time."
In an letter to Special Counsel Patrick J. Fitzgerald, Libby's attorneys state that "through a process of 'content borrowing,' persons have been found to construct inaccurate, but seemingly real, memories out of pieces of true memories." [The URL for these two quotes is the same as that referencing Dr. Bjork as a potential expert witness]
Even at this early date Judge Reggie Walton expressed a negative attitude towards using memory experts.
”… Judge Reggie Walton has said previously in court that he was somewhat skeptical of memory experts as trial witnesses.” [The URL for these three quotes is the same as that referencing Dr. Bjork as a potential expert witness]
To no ones surprise, neither Dr. Schacter or Bjork were allowed to testify. A pretrial hearing was held. Dr. Elizabeth Loftus appeared as the expert to justify the expert testimony of Dr. Bjork.
In early November of 2006 Judge Walton concluded thusly:
…Judge Reggie Walton, in an opinion Thursday, wrote the testimony of memory export, Dr. Robert Bjork, chairman UCLA's psychology department, would be a "waste of time," and could mislead and confuse a jury.
Libby's attorneys had argued many potential jurors do not understand the limits of memory and Libby should be allowed to call an expert to make that clear to them.
Judge Walton disagreed, and wrote in his opinion, "the average juror may not understand the scientific basis and labels attached to causes for memory error" but jurors encounter the "frailties of memory" as a "commonplace matter of course" and do not need the guidance of a memory expert to use their "common sense" in the understanding of how memory works.
A more definitive, legal explanation of the denial was done by >A HREF= http://news.findlaw.com/andrews/m/ese/20061110/20061110_libby.html >Kevin McVeigh. An excerpt follows:
…Prosecutors conceded that Bjork was a qualified memory expert, in particular regarding the reliability of eyewitness identification. However, they argued that Libby could not meet his burden of establishing that the testimony would assist the jury in understanding the issues.
Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702 set the standards for the admissibility of expert witness testimony.
Judge Walton noted that under Daubert and Rule 702, even a qualified expert may be excluded if, in the court's broad discretion, it determines that his or her testimony would not assist the jury.
According to Judge Walton, the defense argued that Bjork's testimony is necessary because jurors are "generally unaware of the frequency and causes of honest errors of recollection and they underestimate the fallibility of memory."
to make that case, the defense presented numerous studies and the testimony of Dr. Elizabeth Loftus, another psychologist who specializes in memory. However, Judge Walton found that the evidence presented was of limited value because it generally concerned the reliability of eyewitness identification and not the fallibility of memory. < p>the judge noted that the average juror rarely, if ever, deals with issues of criminal eyewitness identification in his or her daily life. However, he or she is likely presented with memory and cognition issues on a regular basis.
"Everyone in their daily lives is called upon to store, encode and retrieve information he or she has been subjected to," Judge Walton said. "Although the average juror may not understand the scientific basis and labels attached to causes for memory errors, jurors inevitably encounter the frailties of memory as a commonplace matter of course."
In addition, effective direct and cross-examination of witnesses provide the defense sufficient opportunities to raise the faulty-memory defense, the judge said.
Judge Walton further found that Bjork's testimony would likely draw too much attention "to principles about which the jury will already have an appreciation." Thus, the testimony would not only be a "waste of time" but also could cause jurors to weigh the testimony too heavily, the judge said.
A portion of Judge Walton’s actual finding can be found: HERE. the snippet is below:
”…After carefully reviewing the studies provided by the defendant and the testimony of Dr. Loftus, this Court must conclude that those studies are inapposite to what the jurors will have to decide in this case because: (1) the studies examine issues of memory and cognition under substantially different factual situations than the situation here; (2) the research does not demonstrate that jurors will underestimate the fallibility of memory when the matter is addressed in the trial setting through voir dire, cross-examination, closing arguments, and jury instructions; and (3) insofar as the studies relied on by Dr. Loftus purport to demonstrate the failure of jurors to sufficiently understand factors that impact the accuracy of memory, the scientific value of the studies themselves is suspect…”
Federal Prosecutor Fitzgerald’s cross examination of Elizabeth Loftus was described as brilliant by a number of sources. Experimental psychologists like other scientists do careful studies using the null hypothesis. Essentially, they arrive at a conclusion by trying to prove it wrong. In addition, behavioral scientists often couch their conclusions in probabilities. Finally, a theory waxes and wanes as it assembles an ever larger body of experimental facts into a ready and usable effort. As a necessity, behavioral scientists are prone to understate their positions understanding knowledge like time marches on. Also, after thirty years of experiments, she would not remember the details of all her efforts. Finally, as an empirically based scientist she would change her views according to data and reflection.
The above is my defense of the Loftus testimony but a better one is found in “Back Talk” blog. The author is unknown but he states he is a liberal professor at a major research university:
”…This is a travesty. Have you heard of Elizabeth Loftus? If not, you should search on her name. You'll find that she is a member of the National Academy of Sciences (the academic Hall of Fame, so to speak). Although she is controversial, she is also justifiably famous for many reasons. One reason is that she almost single-handedly put a stop to a gross miscarriage of justice that was occurring in courts of law all over America in the 1980s and 1990s. Back then, jurors were relying on common sense to understand the workings of memory. In fact, the entire justice system was doing that. Here is what was happening…”
“…Decades of important research has shown beyond a shadow of a doubt that one's common-sense understanding of how memory works is way off base. That's precisely why, unlike in days gone by, no one is ever sentenced to death solely on the basis of high-confident eye-witness testimony…”
No question about it! Libby was convicted before the trial began. If he could not use memory experts the case would be limited to a contest as to who lied—Libby or Russert.
What was Scooter Libby’s memory defense? Libby’s chief counsel was Theodore Wells. He must have seen the memory defense early on. Ditto for Prosecutor Fitzgerald and the Judge. If it had proceeded, Theodore Wells would have argued that the mistake Libby made in assuming Russert first informed him of Plame was simply a function of the normal occurrence of
“misattribution.” That is since months had passed before he testified he had only a gist of memory in respect to who told him about Plame. He “misattributed” this to Russert when in actual fact he had heard about Plame from the Vice President and others.
With expert testimony Wells could also have pointed out Russert was a confident, well known witness while his client was a less confident witness and a federal employee. Studies strongly suggest confident witnesses are given greater credence than those who are less confident even though in controlled experiments actual differences in testimony are miniscule to non existent.
On the Russert issue the jury would have been informed of the possibility of misattribution. Without this, as previously indicated, the jury true to human nature would make this a “he said-he said” problem.
The federal prosecutor had little trouble with the remaining six witnesses. They all testified that Libby had knowledge of Plame’s circumstances before he spoke to Russert. Two of these witnesses were journalists—Judith Miller and Matt Cooper.
Libby claimed he first learned of Plame's in a10 July 2003 telephone conversation with Tim Russert. Judith Miller testified Libby discussed the topic before that date -23 June 2003 and 8 July 2003. Initially, Judith Miller had refused to divulge her confidential source. After 85 days in jail she relented and became a prosecution witness. The source for the above paragraph is: HERE.
In respect to Mathew Cooper, two of the five felony counts in the perjury and obstruction of justice case against Lewis Libby were based entirely on a single phone conversation on 12 July 2003. The prosecutor supported these charges with a single note completed by cooper shortly after the conversation. The note said, “had somethine and about the wilson thing and not sure if it’s ever.”
What exactly this note meant was never made clear but toward the end of the conversation,” Cooper asked about Plame, “He (Libby) said words to the effect of, ‘Yeah, I’ve heard that, too.” That was the extent of their conversation about Wilson’s wife. Cooper denied Libby ever said Plame was a covert or a classified CIA employee. According to Byron York the following describes these criminal charges:
”…The exchanges between Cooper and Fitzgerald are significant because they, along with the snippet from Cooper’s notes, gave the jury all the evidence it would receive on Counts Three and Five of the indictment. Count Three accused Libby of making a false statement to the FBI during interviews on October 14, 2003 and November 26, 2003. That false statement consisted of Libby telling the FBI that when he talked to Cooper, he told Cooper that he, Libby, had been hearing about Mrs. Wilson from reporters. That statement was false, Fitzgerald alleged, because Cooper said it never happened. Here is the core allegation of Count Three: “During a conversation with Matthew Cooper of Time magazine on July 12, 2003, Libby told Cooper that reporters were telling the administration that Wilson’s wife worked for the CIA, but Libby did not know if this was true…”
To sum it all up: Libby was never accused of a crime in respect to Plame. Judge Walton advised the jury that one could not say Valerie Plame was or was not a covert employee. Scooter Libby was never charged with “outing” Valerie Plame. What he was indicted and convicted for were false statements to the FBI and the Court. The two proposed memory experts—Doctors Schacter and Bjork—were prevented from testifying as to misattribution and other memory defects. The jury then made a common sense, every day decision as to who was most believable. Without alternative expert state-of-the-art testimony on memory the outcome was certain—up to thirty years in a federal prison. But the question remains, “For what?”
Final thoughts about the book:The paperback version of the book was published by Houghton Mifflin in 2001. There are 272 pages including an excellent index and helpful endnotes. I paid only $10.17. IMHO this is the stealth book of the first decade of the 21st century. It has changed, and will increasingly change, the criminal justice system as the cognoscenti, in and out of government, realize the importance of “How the Mind Forgets and Remembers.”
Was this known prior to the trial? Is this grounds for mis-trial?
I don't know. I am not an attorney.
I doubt if it was known pre-trial, but then again DC is a small town if you are in journalism trade. Some lawyer would have to answer your question.
Thanks... I'll read all the detail later. Was this the expert the judge wouldn't allow to testify? Libby's mistake was not adopting the tried and true Clinton-method: I don't remember, I have no recollection of that, you won't find a shred of evidence of that, I'll take the 5th Amendment. What a travesty. Unfortunately, our President doesn't apparently have the fortitude to do the right thing and end this abomination by pardoning Libby or, better yet, firing Fitzgerald, ending this special prosecutor, and starting an investigation into Fitzgerald's methods and objectives in pursuing this show trial.
I think Libby's lawyer had run out of peremptory challenges when Russert's friend came up in the jury selection process...the judge didn't see any problem with seating that guy, even though much of the case revolved on the relative reliability of Russert's and Libby's testimony, and Russert wasn't in danger of going to prison.
Absolutely!
While the presidential candidate Hildabeast can get by with "I don't recall" and "My brain is jello", even the elites up to the Chief of Staff for the VP can't.
Therefore, my considered opinion as a non-lawyer is that everyone called before a congressional committee should take the Fifth.
What the heck. It's in the Constitution. Look it up, judges and juries.
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