1. Anonymous says:

    EW – Do you know if the Loftus testimony transcript has been released and if so where it might be obtained?


    PS I thought he was going to Jamaica??

  2. Anonymous says:

    â€So if Libby wanted to call a memory expert to prove that what Cathie Martin will testify to having seen and heard–which is probably something along the lines of â€No, Scooter didn’t tell Matt Cooper that he had heard of Plame through journalists,†he might have stood a chance.â€

    This sentence confuses me in its context; and not in the frequently good ew-mind-bending way. Is this saying that the memory expert would say Cathie Martin’s testimony can’t be 100 percent trusted because she was too busy, too? Or whatever their excuse du jour is?

  3. Anonymous says:

    EW, I thought Daubert had 4 prongs:

    1. Has the scientific theory been tested? (In Loftus’s case, she had tested it.) Then, if it has been tested, was a rigorous experimental design applied? (Here is where Loftus got whomped by Fitz, I gather?)

    2. Has the scientific theory — or evidence — been subject to peer review (and, by reference, is it widely accepted by researchers in the field)? Again, her research has been peer reviewed, but it considered by some to be… ’mushy’.

    3. Does the scientific evidence presented apply TO THE SPECIFIC FACTS OF THE CASE IN QUESTION? (Here, Walton said, â€No.†And I agree with this — the types of memory issues studied by Loftus don’t translate well enough to Libby’s situation, IMHO.)

    4. In this case, #4 doesn’t really matter, since the memory stuff was tossed out on the third criteria. Nevertheless, as I re-read this topic on Wikipedia, I recall that a fourth criteria has to do with the rigor of the statistical analysis applied to the scientific data presented as evidence. In other words, IIRC, the parents in the Daubert case used only statistics that specifically supported their argument, RATHER THAN using statistics that had been applied to a wide range of data. In other words, to meet the criteria for admissable evidence, the scientific data: (a) must contain enough numbers for a reasonable sample, (b) must be a ’random’ sample, or at least a representative sample, (c) must use accurate statistical formulas — you don’t get to choose only formulas that will make your data support your views.

    I’m not arguing with you, but I thought there were 4 prongs of Daubert…?

    FWIW, it’s my view that Walton decided correctly that the analogy between Loftus’s memory work and the Libby case was simply too weak to allow as evidence. Good for him!

    I don’t care where Judge Walton goes, as long as it’s not on a small plane (!). Ditto Fitz and all members of his team.

    I do have a queasy feeling that if Daubert ever goes to a Supreme Court loaded with Bushies, they’d rule that creationism is ’science.’ Scary, scary thought. All the more reason to be thankful for a prosecutor like Fitz who isn’t afraid to question the validity of the research, and to be thankful for a judge like Walton who isn’t afraid to call bullshit when topics are not relevant to the case.

    I now return to my seat in the back of the room. I just thought Daubert had 4 prongs, rather than 2.

  4. Anonymous says:

    Daubert requires (1) reliability and (2) helpfulness to the trier of fact. The Court in Daubert provided a non-exhaustive list of five factors that commonly bear on reliability: (a) testability; (b) peer review and publication; (c) error rates; (d) existence of standard’s governing the methodology’s application; and (e) level of scientific acceptance. But those five factors do not appear to be of critical importance to Judge Walton’s decision, which rests primarily on Daubert’s helpfulness prong, rather than its reliability prong.

  5. Anonymous says:

    Check out the sound of crickets from Tom Maguire’s blog. They can’t handle the truth. I believe Fitz has some more bombs to drop once the election is past. Should be a fun November.

  6. Anonymous says:

    What makes you believe that?

    well, scooter still has a shitload of money to spend, right ???

    so I figure that Fitzgerald is just drooling over the â€meatballs†that scooter might throw over the plate

    scooter has already spent a shitlaod of money, and scooter ain’t won a point yet

  7. Anonymous says:

    I think Peter explained it better than I (thanks Peter). I got the two-prong thing from Walton’s decision.

    FWIW, Jeralyn thinks this decision may be Libby’s cause for appeal. While I agree in principle (that is, that’s all he’s looking to do at this point), I disagree with her on this point (with all caveats about Jeralyn having some basis for her belief, and me just talking out of my arse). One thing Walton points out in his decision is that Loftus conceded some of the points he is making. Thus, it’d be hard to say you didn’t get a fair case on the memory expert when your own witness conceded that the argument for one was not real strong.

    In other words, Libby’s three hours were useful–he disallowed the memory expert and may have ruined any chance for appeal on it.

  8. Anonymous says:


    If that’s all Larry Johnson’s got, it’s less than nothing, not least because Libby’s not going to trial until January and Johnson is talking about bombs dropping right after the election, this month.

  9. Anonymous says:

    It is smart of the judge to delete the buffer which the expert would be. He is willing to let the witnesses, and Libby, make their own statements about what they think they recall, and what is near truth. Some of the topics of this trial are in a fringe zone touching politics, secrets, and the mundane straightforward regulatory environment which is government. It will be interesting to learn how far conduct of business strayed into some ideological zone which could be outside of the norms the framers of the constitution tried to define broadly as acceptable American polity in a federal republic. I am glad this set of charges settled upon Libby, because his intelligence should add illumination as he testifies to answer questions about the many still unexplained occurrences in the executive branch amid the inflammatory rhetoric early in the war; though Fitzgerald, as Christy* once observed, likely only will ask questions to which he already knows the answers.
    *There, in a thread in 2005.

  10. Anonymous says:

    I love Walton’s decision, but frankly, the real scandal is that Libby’s lawyers were so ill-prepared and ill-equipped to use Loftus to their advantage. If Team Libby were fired, Libby wouldn’t be making a mistake.

  11. Anonymous says:

    If only it were Libby’s decision to make, and Team Libby actually about Libby’s defence.

  12. Anonymous says:

    I don’t conside a defense attorney’s ineptness to be a scandal

    scooter gets to go to trial with the defense he has, not the defense he wished he had

    scooter also gets to go to trial with the charges that Fitzgerald has, not the charges scooter wished Fitzgerald has

    scooter proves that you can’t hide from reality in a courtroom

    I’ve seen worse legal teams, but never one that was paid so much for so little

  13. Anonymous says:

    Evidentiary decisions are reviewed on appeal for abuse of discretion — a fairly lenient standard that results in affirmance about 90% of the time in federal court. Affirmance is even likelier in criminal cases, and expert opinion touching on witness credibility is often held in special disfavor on the theory that it â€invades the province of the jury.†Libby may have an appellate shot, but my guess is that it will be an uphill battle, if no other argument for reversal becomes available.