Attorneys for I. Lewis "Scooter" Libby, in a court filing Monday, are seeking to admit the expert testimony of a memory specialist on behalf of Libby, the former chief of staff for Vice President Cheney, who faces charges of perjury and obstruction of justice for his role in the CIA leak scandal.
Libby's lawyers contend that issues of memory — including how it works and why it fails — will be crucial to the jury's determination of Libby's guilt or innocence.
Libby's attorneys are seeking to admit the statements of Dr. Robert A. Bjork, the chairman of the Department of Psychology at the University of California, Los Angeles.
According to the filing, Libby will argue that, in many cases, it is the government witnesses who have misremembered the facts, and that any errors Libby made in describing the events were the result of "confusion or faulty memory, not any intent to misrepresent the truth."
The filing states that the evidence will show that, in his role as Cheney's chief of staff, Libby's attention was focused on "issues of grave importance, including domestic terrorist threats, perilous conditions for American troops and citizens abroad, and emerging foreign policy crisis." These issues, described in their filing as, "matters of life and death," Libby's attorneys argue, occupied their client's mind and time "throughout his lengthy work days."
Attorneys: Misremembering possible
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."
Libby testified before the grand jury that it was NBC News' Tim Russert who first told him Plame worked for the CIA. Russert, moderator of “Meet the Press,” denies that claim.
Legal Times, in an analysis of the "memory defense," writes, "Although it's common for perjury defendants to blame a faulty memory for any misstatements, that strategy is far from a sure thing. It's especially risky in a major political-corruption case, where there are dozens of witnesses ready to counter that claim."
Precedent in Nixon era
The legal journal reached back in scandal history to find that, "during the Watergate scandal, President Richard Nixon advised aides to say ‘I don't remember’ when they testified before the Senate Watergate Committee. Subsequently, John Mitchell, Nixon's attorney general; H.R. Haldeman, his chief of staff; and John Ehrlichman, a policy adviser, all were convicted of perjury."
Judge Reggie Walton has said previously in court that he was somewhat skeptical of memory experts as trial witnesses.
Libby was charged in October with lying to the FBI and a federal grand jury about how he learned and when he subsequently told three reporters about Plame. He faces five counts of perjury, false statements and obstruction of justice.
Libby's trial is scheduled to begin in January.
Joel Seidman is an NBC News producer based in Washington.
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