Saturday, October 29, 2005

"I Don't Recall" Defense In Play

Joseph Tate, lead attorney for former Vice Presidential Chief of Staff Lewis "Scooter" Libby appears poised to play the "I don't Recall" card in Libby's perjury and obstruction of justice trials. "As lawyers, we recognize that a person's recollection and memory of events will not always match those of other people, particularly when they are asked to testify months after the events occurred," he said, alluding to allegations that Libby's testimony before the grand jury constituted perjury. (USA Today: Lawyer for Libby signals possible memory defense).

The memory defense was made famous in Ronald Reagan's testimony in the Iran-Contra scandal, but it has long been a popular and effective defense for embattled political advisers. The defense even worked well for former President Bill Clinton and Hillary Clinton during the Whitewater scandal.

The basis behind the charges against Libby stem from his testimony that he learned Valerie Plame's name from NBC correspondent Tim Russert. Russert subsequently denied ever talking to Libby about it and Fitzgerald has evidence that Libby in fact learned of Plame from Vice President Dick Cheney.

There's a distinction between lying about conversations and having a poor recollection of the events including those conversations. Human memory is indeed very poor when it comes to past details, especially concerning conversations or actions that one doesn't consider important at the time. This particular chain of accusations and evidence appears pretty flimsy and one hopes Fitzgerald has more to display than what has been made public thus far.

Getting a grand jury to hand down an indictment is not much of a challenge even in the absence of any tangible evidence. An indictment is not a conviction, but in many cases the distinction is largely irrelevant. Most careers are destroyed on indictment, not on conviction. In fact, when it comes to damage done, the outcome of a trial often has little meaning. A not-guilty verdict does not undo the damage done by the simple indictment. That fact is a problem we as a nation sorely need to address.

In the meantime, Scooter Libby is out of a job and the Vice President is out a Chief of Staff. I certainly hope Fitzgerald has more to justify this than he has thus far displayed.


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