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October 26, 2006


I have to say this is my favorite topic to read about. For me, this has been one of the most fascinating, interesting stories. From the moment that I read that Bush had hired a criminal lawyer, my hope began to rise, that maybe there would be a glimmer of truth to come out about this administration. This was the beginning thread, for me anyway.

Well actually the thread probably started with Bush 41's role in Iran Contra, which formed my opinion of his son. But anyway, this story has it all and emptywheel, no one does it better than you. It was too fun to hear you describe Fitz who is making history as we speak. I wonder if the story will end bigger than it is even now. This story has me by the ears. keep it coming...

ew says:

You see, Libby's making a kind of weird argument

Well, since his lies have all been nailed down with great specificity by a couple of hard working rabid lambs, he's painted himself into a corner. Well, four corners. Which is still less than Karl's five.

What do you call it when a whole bunch of people work together to make up lies to cover each other in court? Oh right. That's a conspiracy to obstruct justice. Sure would be a bummer if the vice president is the guy who suggested it.

I'm with Katie. I love this stuff- sunshine on the cockroaches. But I won't be happy until they're spending the rest of their lives in prison... and I still think there is an argument to be made that there might be a little bit of treason mixed up in all of this.

Alas, somebody said the trial will not be televised. Alas.

Alas too for the poor psychology professor.

AP mentions that after they got done with the poor psychology professor, they closed the doors to continue hearings about classified information, which I take to be the continuation of the CIPA hearing. It's unclear when it will continue, though I presume they didn't get through it all today.

What do you mean by Libby's islands of memory of forgetting? Do you mean that he remembers now that in July 2003 he had forgotten that Cheney had told him in June 2003 that Plame worked at CIA?

Is Fitz done with just the Libby indictment or do folks here believe that others too will be indicted?

Of course he can rip a Psychologist to shreds.

What competent logician can't?

It is all about considered opinion, or many opinions.
There is no science to it.

~well, we observed this sometimes and that more times except when we didn't but on the other hand occasionally, but I am sure within a certain latitude of certainty vs doubt and the added error probability that -- hours up, you owe me $200! [That's for sure!]

All this is just to fill out the transcripts for appeal.

MSNBC article, "Today's witness also admitted that there have been no studies conducted on how memory effects past conversations."

Since they have no clinical data to support how memory effects past conversations, I guess we are to just trust them when they say "it could/maybe/probably/possibly happen. We just don't have any proof of any kind to back up our meaningless statement."

Judge: "Immaterial bull.... Next."

Let's see, how does memory affect past conversations? It fucking doesn't! It's in the PAST! Memory affects current and future conversations, you see - Time, for most of us, only travels one way. Absurd has just reached a new definative.

so has anybody mentioned that scooter took notes as he was engaged in these "conversations" ???

I've been involved in some studies about memory, and the act of taking notes is a whole nother ball game

conversational memory is comprised of memories from one short term memory center of the brain

note taking memories are comprised of memories from THREE DIFFERENT short term memory centers of the brain

a person who took notes during a conversation has NO CHANCE of forgetting the conversation

when I wasa in College I never had to refer to my notes to study for tests. the act of taking the notes was sufficient to imprint the information on my brain

scooter's "memory expert" is gonna be the guy who convinces the jury that scooter is lying

anybody wanna bet on that one ???

Libby's memory expert had a few hours with Fitzgerald she would as soon prefer to forget.

Is Fitz done with just the Libby indictment or do folks here believe that others too will be indicted?

Fitz' M O says that scooter will be the first of a bunch of people convicted

Fitz ropes a small fish, convicts the small fish, then proceeds up the food chain

worked on the professional mob

oughta work on the mayberry machavellians

When Fitz wussed out on Rove, it hit home for me that he was just as bad as Time, NYT, WaPo, Russert, et al in terms of being complicit in covering up the Plame incident until after the 2004 elections ... as heinous a crime as ever been perpetrated on the world in my opinion.

From that point he's been dead to me, but as of today, I will have to admit that he at least seems to be one hell of trial lawyer.

yo, obsessed, I don't think Fitz "wussed out" on rover

I just don't think Fitz has the goods yet

just wait until scooter's multi million dollar legal team tries to spin this shitball in front of a jury

if scooter doesn't call rover then I'd be willing to bet we see rover called as a rebuttal witness for the prosecution

scooter or his minions are bound to say a lot of stupid stuff

being subject to cross examination ain't no picnic. It's real easy to cut your own throat or a fellow conspiritor's throat in these types of trials

scooter has a real shitty hand showing right now, and when scooter has to show his hole cards, his chances of winning ain't gonna get better

rover has the same hole cards as scooter, so I don't think rover is over the hurdle yet

Jodi- Sometimes, though, if the sessions with the "competent logician" fail, it is worth giving Psychology another chance.

This Loftus situation presents the very thin line that, in my mind, we have always been treading with the Plame case.

For those who care about wrongful convictions, Fitzgerald breaking down Loftus is a terrible thing. Loftus's main work, at least from my experience, has been in misidentification based on problems with recall. It might be an exaggeration to say that Loftus's work has kept innocent people out of jail and has probably even saved a few lives. But I think it is probably accurate.

Certainly, Libby is trying to use her work in a way that it has probably never been used before. By doing this, he could be harming other criminal defendants. That is the tragedy here. I don't think it is anything that we should be feeling good about.

Jk, I don't think that the Fitz could do any harm to the data that make clear that eye witness accounts are not credible. I wouldn't worry about it. And if the science was weak, then more research will be done.

If a recent article produced by UCLA is and indication, Bjork's testimony will be irrelevant. The conclusions of the study found that multi-tasking "reduce[d] the participants' subsequent knowledge about the task during a follow-up session." Nothing in the study suggests that "false memories" would be created -- and Libby testified to things that never happened.


Furthermore, this was an experiment in true "multitasking"--participants "were asked to make predictions after receiving a set of cues concerning cards that displayed various shapes, and divided the cards into two categories. With one set of cards, they learned without any distractions. With a second set of cards, they performed a simultaneous task: listening to high and low beeps through headphones and keeping a mental count of the high-pitch beeps. While the distraction of the beeps did not reduce the accuracy of the predictions — people could learn the task either way — it did reduce the participants' subsequent knowledge about the task during a follow-up session."

In other words, Libby's defense is based on the number of issues he was dealing with at the time --- but unless he can show that he was being constantly interrupted every time he learned something about Wilson, the "study" will be irrelevant.

My guess is that after Loftus' disembowelment, Bjork is going to withdraw as a defense witness anyway....


Fitzgerald attacked her specifically for making claims that her research--even by her own admission--doesn't support, specifically with regards to the ability of jurors to understand that memory is fallible. As Fitzgerald pointed out, according to her results, when people got together and compared notes--as jurors do--they end up adequately accounting for memory's fallability.

That's a far cry from questioning the idea that line-ups lead to false positives.


Elizabeth F. Loftus may, indeed, have helped a few innocent people. But she's helped a hell of a lot more guilty people get off. She's a "hired gun."

Back when the wide prevalence of childhood sexual abuse became known, there were a number of people who falsely claimed being abused and deserved to be discredited. But Elizabeth F. Loftus became the guru of the "False Memory Syndrome." She discredits the actual memories of people who recall being abused. In practice, she's the one you call to trash the victim - and she's made a good living and reputation doing it.

Fitzgerald just happens to be one of the first to really take on her obviously biased stance, namely, whoever she's testifying for is right. I hope her trouncing at his hands is a portend of her expertness being as discredited as the many victims of her previous testimony.

You are partially correct. Sometimes she's been right. On the other hand, lots and lots of other times she's been very wrong, and her wrongness has inflicted unnecessary pain on already damaged people. She has made attack the victim a big business, and brought shame to her profession.

Good for Fitz. Loftus had it coming...

I'm in general sympathetic with jk's worry. But first off, Libby's team is about as well-paid and powerful and good as a defendant is likely to get. So I'm not convinced all the rulings coming out of this case are going to be bad for defendants. Second, in fact, I think some of Walton's rulings in favor of Libby are better for defendants than otherwise. Third, here's what I got from one of my several smart lawyer friends, which jibes with mickey's point (which he also went on to make about Loftus in particular):

On the question of sympathy for the poor academic, I assume you're at= least partially kidding, though I know what you mean. But these people by and large are the worst brand of academics, people who whore themselves out as "experts" for trial work. There's a whole industry of people who make very good money at this -- basically it's a known fact that you can get an
expert -- often an academic -- to testify to whatever you want. And I'm sure she was getting at least $500/hour for her work, so at that rate she should be able to handle a little heat.

And the whole freakin' thing is ridiculous, which I'm sure is part of what Fitz was pointing out. Certain questions on how memory works, of course, seem like they're proper subjects of expert testimony. But the question Libby wants to raise with his memory -- that he was just too busy and so he couldn't remember what he was doing -- seems totally improper for expert testimony. In some ways, the rules here regarding experts are good and could stand to be transposed into society in general -- there's a healthy skepticism over claims that you need an expert to tell you common sense things, or things that should be in every lay person's sphere of knowledge. People always try to foist "experts" on courts and juryies to testify to common sense things; often it works, but often the courts do the right thing and say no, that's just common sense, we don't want to intimidate or confuse a jury with an expert. This seems like one of those cases. What do you
need an expert here for?

If you like this excerpt, you should read the rest at the link provided below. It's another account of Fitz's cross exam, and it's a hoot:

"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."


Ms. Loftus made her bones researching and documenting the fallibility of eyewitness identifications, particularly when made in stressful and/or cross-racial situations. Her data focused on the unreliability of the original perception, rather than on the ability to recall the perception.
The courts have been stingy in admitting such testimony (which is usually offered by the defense).
Expert testimony on memory faces an additional hurdle, because evaluating a witness’s credibility is primarily the province of the jury. Appraising the witness’s ability to recall is fundamental in the jury's evaluation.


You are partially correct. Sometimes she's been right. On the other hand, lots and lots of other times she's been very wrong, and her wrongness has inflicted unnecessary pain on already damaged people. She has made attack the victim a big business, and brought shame to her profession.

Good for Fitz. Loftus had it coming...

Do you have a reference for this claim? What evidence is there for the "lots and lots"? How often does she appear as an expert witness in cases where she questions the recollections of another witness?

I wish that could be documented myself. She basks in this contraversy, but there are two problems - her "stats" aren't published with her articles, and second the outcome of the cases can't be relied on to judge what's false and what's true. Worse, the distinction between conscious lying and unconscious memory distortion is not clarified. So I guess lots and lots isn't fair because it's unknowable, at least by me. I take your point. But don't lose mine. In her claims of "science" and memory distortion, she's no more able to say what's not true as those who say what is true. And you don't have to read a lot of Loftus to see that she's got a real ax to grind. She enjoys having a target filled with bullet holes on her wall. I wonder if she'll ad a bullseye for her drubbing at the hands of Fitzgerald.

Unfortunately, this topic of the validity of memory has an enormous polarizing effect on people. As a psychotherapist, I found that once the issue got into the courts, the chance of carefully exploring such memories and getting to the bottom of things was essentially zero, at least for mortals like myself.

Well, if she just doesn't publish her data, only her conclusions, that's that. She deserves whatever she gets.

I thought this was one of the funniest things I've read about the case (from the Washington Post):

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.

Is Loftus that best around?
She was spewing this same crap 20 years ago. She can't possibly be cutting edge.

William Ockham,

In the alternate universe -- aka Justoneminute -- the excerpt you highlight bolsters Libby's case. Cuz she can't remember, see?

Now if Loftus went on to specifically "remember" how the previous case Fitz questioned her in was about a speeding ticket, when it was actually about a triple-homicide of circus clowns, then maybe the JOM folks would be on to something...

This is a complicated topic.

I agree the transcript would be essential to understand the part of the defense this expert witness assumes.

The NBC journalistic writer likely had hurried prose, or the editor clipped out the words that would make more sense out of the attributed remarks concerning dearth of research into 'how memory affects past conversations'.

As I read thru Dr. Bjork's download page, some interesting work he did 25 years ago will require further searching, as the lab at UCLA for some reason has omitted archiving it in the same location. The article which interested me could reflect on the process of alibi design, and, further, on the interactional dynamics of a cluster of people who design alibis independently, then realize they must coordinate parts of their excuses. Beginning with the article's title, it looks like in the late 1970s Bjork was curious about memory dynamics surrounding an existing memory which the subject opts to forget or avoid, as reflected in the transfer of the forgetting, or blocking out, to collateral thought processes. Maybe Libby blushes when he meets someone who is extraordinary, and recalls their name only if he writes it immediately in his thorough journal. I think here we border on ew's earlier topic of the 'Dog Ate My Homework' defense.

In one area, though, the sort of expert testimony that would undermine credibility of utilization of a jury, as it is written into our laws as a key component in trial and judgment, I could see a judge refusing to let the trial drift down that road too far. Voir dire is one place where both sides may screen jurors for putative defects; but to discredit the jury because of its own dynamic is an attack on the trial by jury system written in the constitution. So far, we have avoided actual constititional argument in the Libby indictment; but, should the defense attempt to head down that road, it might risk opening other concerns.

Jim E.

Now that excerpt is the second funniest thing I've read recently...

Now that excerpt is the second funniest thing I've read recently...

and what, pray tell, is the first?

Mark C,

consider a Psychologist a sort of fuzzy logic person. Now when it comes to dealing with someone that has real psychological problems, who by that defninition isn't very logical, then fuzzy logic is applicable.

It is like using statistics to deal with semi-chaotic states.

Another example is the story about the very wise old sage who says I saw this once 40 years ago, and this is what happened, and therefore we know that treatment A "probably" won't work, so best we try B or C.
IF the results then are written as a case, and many cases are summarized, and best therapies strategies are worked out, we have psychology, or medicine in the early years.

"Empirical science" or "trial and error." Whatever you wish to call it.

This person, this psychologist, might do best with a jury who is impressed by her credentials and her manner, and therefore gives her testimony credence. All that is needed is to bring about doubt in the mind of one juror.

The Libby caravan ought to go find that guy at Harvard who studies "alien abduction" memories, Scoots might want to try that defense.

The Libby caravan ought to go find that guy at Harvard who studies "alien abduction" memories, Scoots might want to try that defense.

Yeah, especially since he's dead, if I'm not mistaken. That should work really well.

Apologies for the OT, but the site email no longer works, so ew, I'll leave this link here for you. I know you're a wee bit busy right now, but for future reference, or to pass on:

Has some interesting tidbits related to Sibel Edmonds that it would be nice to follow up on and try to get some verification for.

That's very weird; the link didn't show up. Trying again:


A little something to prompt some more shaking of heads (at least among those of us out here in the hinterland):

"One 2003 gathering for former National Economic Council chief Lawrence Lindsey, under whom Edwina worked for a time, drew the likes of Alan Greenspan, former Commerce Secretary Don Evans (then a McLean resident), and--are you ready for this, Joe Wilson?--Robert Novak, Scooter Libby, and Karl Rove.

The lobbying simply never stops in McLean."

[Describing one "power party" hosted by the owners (Ed and Edwina Rogers) of McLean's "crown jewel" Surry Hill property. Lawrence Lindsey apparently left the Bush administration by mid-December, 2002. And Don Evans still lived in McLean as of May, 2004 - where the Bushes paid him visits - per the Christian Science Monitor. Hmmmm...]

That's a small excerpt from a splendidly researched, informative, and eye-opening description of McLean, Virginia and its 'connected' residents, by Michael Crowley of the New Republic. It 'names names' all over the place... I stumbled on it here, and highly recommend it (if, like me, this is something you missed when it came out about two months ago):


P.S. For anyone wondering if Ken Duberstein is close to Karl Rove, or not, I note one fact: On August 9, 2006 (the day after the CT primary) "Friends of Joe Lieberman, 2006" was the recipient of a $1,000 General Election donation from 'Mr. Republican' Kenneth Duberstein of the Duberstein Group, Inc. (you should see the company this puts Lieberman in as a recipient of Duberstein Dollars...).

"The CIA is headquartered in McLean (but its location is often mistakenly described as Langley, VA). Conspiracy theorists take note: The complex is a five-minute drive from the Saudi ambassador's compound and the homes of at least two senior Carlyle Group officials."

From the caption of an aerial photo at:


And here's the URL for this article at The New Republic itself:


EW -- a must read. Last night I spent hours curled up with Sidney Blumanthal's new book, "How Bush Rules" -- which he dedicated to Joe Wilson, and which has a fascinating review of the case up to his point of publication -- last May was when the manuscript closed.

He thinks this whole thing will lead to the indictment of Cheney. He even has blocked out the cross-examination of not only Libby, but many of the others in the cast of characters. Blumenthal was on C-Span yesterday, which caused me to dig his book out of my pile and begin to read. His C-Span tape made in October at Politics and Prose Bookstore, has some more up to date information beyond his book.

Above everything else I've read, this one looks at the Bush/Cheney White House as a system, and it puts the Plame History up against the normal system -- and then interprets the bits and pieces from there.

The other book I would suggest you take a look at is Frank Rich's "The Greatest Story ever Sold" -- which offers interesting bits on the inside game at the NYTimes. Rich manages to say a great deal about Miller without actually putting her name in many paragraphs, but close reading is an avenue to his interpretation.

I actually came away from the Blumenthal book thinking of Kargo's interest in impeachment, but I am convinced now that Conyers -- should he become chair -- could do a great deal more quality work if he were to set about hearings impeaching Cheney. If Blumenthal's sources are correct, Bush is in such a steel bubble he really is not knowledgeable or hands on with regard to any of the sins of his administration -- he is simply given formal decision papers to check, and no background information, and he is simply guided to check a decision box. Sidney's sources are mostly top level professional Civil Servants, he says many are Republican, whom he met while working in the Second Clinton Administration, and who were willing to diss. This book is so much better than Woodward's even though it went to press a couple months earlier. Woodward's work is, in my opinion, always of interest, but it leaves a somewhat sour taste because he is very unwilling to interpret facts, or included historical references that would build toward an interpretation. In Contrast, Blumenthal is more than willing to take a character and drop back as far as the Reagan years, haul out the facts, and then incorporate them into his interpretations. He just makes things so much more multidimensional and in my opinion leaves Woodward's recitals in the dusty wake. (But I did work myself through Woodward's book anyhow.)

Prosecutor Argues Issues for Leak Trial

By Matt Apuzzo
Associated Press Writer

October 30,2006 | WASHINGTON -- Special Prosecutor Patrick Fitzgerald told a federal judge Monday that he shouldn't have to explain during the upcoming trial of a former White House aide why nobody was charged with leaking the identity of a CIA operative.

Vice President Dick Cheney's former chief of staff, I. Lewis "Scooter" Libby, faces trial for obstruction and perjury in January and is the only person charged in the case. His supporters have accused Fitzgerald of singling out Libby while not charging the source of the leak, former Deputy Secretary of State Richard Armitage.

In court documents, Fitzgerald said he shouldn't have to address that issue at Libby's trial. While never addressing Armitage by name, Fitzgerald said it would be irrelevant to discuss other officials.

"If Mr. X was investigated for leaking classified information, the government's decision not to charge Mr. X should have nothing to do with the jury's role as the finder of fact in Libby's case," Fitzgerald wrote.

If jurors disagree with his decision not to charge anyone else, they might be less likely to convict Libby, Fitzgerald wrote.

Armitage told prosecutors he inadvertently revealed Plame's job to syndicated columnist Robert Novak in July 2003. Novak's story ran as Plame's husband, Joseph Wilson, criticized the Bush administration's prewar intelligence on Iraq.

Libby was one of several Bush administration officials questioned about the leak and prosecutors said he lied about his conversations with reporters.

Defense attorneys have sought information regarding Armitage's role in the leak and have been unsuccessful.

Fitzgerald's court filing is an attempt to prevent Libby's attorneys from making the argument that Libby had no reason to lie because, if he had leaked classified information, prosecutors would have charged him with it.

"The government's decision not to charge a crime is not a declaration as to the legality or propriety of the defendant's conduct," Fitzgerald wrote.

Libby's defense attorneys are expected to respond to Fitzgerald's motion.

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