Turns out the judge of the Libby show trial was even more manipulative than previously thought – in a case entirely about conflicting recollections, he suppressed expert opinion on the fallibility of memory.
A successful appeal should now be easy, a much better outcome than a presidential pardon.
Today’s WSJ ($):
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 works…
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.
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.
However, after a day-long hearing…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.
Walton cherry picked other information provided to the jury and allowed the charade of the jury’s behavior.
For good reason, judges can’t be punished for misjudgments. Still it would be fun publicly to subject this one to the standard psychological tests that demonstrate the fallibility of his own memory.