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Some days, the wait for a hearing transcript can seem like an eternity.  Today is one of those days. 

Turns out that there was a hearing on potential expert witness testimony in the Libby trial yesterday — and word is that Patrick Fitzgerald took the witness apart with her own research, footnote by footnote, assumption by assumption.  So much so that, at times, members of the audience were shaking their heads…for nearly three hours of cross-examination.

When you use expert witness testimony on a theory or method which has not already been accepted by the courts as having a history of sound scientific basis within the court system (i.e. fingerprint identification testimony or DNA analysis or other such scientific evidence issues that you frequently see admitted), you have to present evidence to the presiding judge to show why that scientific method is sound and why the analysis ought to be considered trustworthy enough to be presented to a jury for their consideration during verdict deliberations.   Commonly called the "Daubert standard," there are a number of issues to be addressed by the court in this — but let's just say that the science has to stand up to scrutiny and seem not only relevant to the proceedings, but also something that passes the common sense and intellectual standards that one should expect from this sort of testimony.

No science is perfect, and even things that are routinely admitted get challenged as new methods or interpretations come along, but by and large there are a few things that one looks for in a proposed expert

In 2000, the Supreme Court approved amendments to the Federal Rules of Evidence relating to opinion evidence and expert testimony to conform to the "Daubert trilogy." In addition to amending Rules 701 and 703, Rule 702 now includes the additional provisions which state that a witness may only testify if, "1) the testimony is based upon sufficient facts or data 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the case."

According to news reports, Team Libby may have had some nightmares last night about the second prong of the Daubert test. From MSNBC:

…Fitzgerald's blistering, nearly three-hour, questioning of Loftus caused her to admit that some of her own findings about what juries know about memory were faulty and that some of her own research may have been flawed.

Quoting from her own book "Witness for the Defense," Fitzgerald also confronted Loftus about how she might sway a jury if called to testify at trial. She had written that, "using my arsenal of subtle psychological tools" Loftus could make an impression on a jury about her perception about guilt or innocence.

Libby lawyer John Kline put Loftus on the stand to explain to Judge Reggie Walton – who must decide on whether to admit Bjork – that Loftus's 2006 study, based on a survey of 1000 D.C. jurors, found that most of those surveyed thought that memory could be likened to a "tape recorder." The perception the mind can remember like a recording device is not true according to some memory experts.

But Fitzgerald pointed out in his cross-examination that the study itself may have been skewed. Loftus admitted on the stand, after being picked apart by details from her own works, that the answers to some of the questions posed to jurors in the study actually prove exactly the opposite – that jurors can in fact use common sense to ascertain the effects of memory on witness testimony.

I cannot begin to tell you how difficult it is to trip up an expert witness on the stand, especially when you are doing cross-examination of someone who is considered to be a top expert in the field and who has had courtroom experience in prior cases for similar research material. 

I have had two instances that have come even close in all the trial work that I have done:  once, I made someone sniffle on the stand because they could not answer my questions (turns out they weren't such an "expert" after all) and the second one was when I got to literally pick apart the forensic expert on whom a murder defense rested for…get this…fly larvae analysis being used to determine an approximate time of death.  (Yes, that's right, it was testimony about maggots.  Being a lawyer, oh so fun.)  I spent weeks devouring entomology tomes and forensic texts and studying every piece of information that this particular expert had written — and my successful cross-examination came into play primarily because opposing counsel had neglected to fill their expert in on a couple of key facts that were detrimental to their client's case — a big no-no. 

Once I filled him in, while he was on the stand sitting in front of the jury in the witness box, the whole of his testimony changed in my favor — with the jury watching the entire thing, from start to finish, as we walked through his new set of calculations on a chalkboard the old fashioned way, step by step, so that I could document the guilt of the defendant using his own witness.

It was a glorious Perry Mason moment, and one so rare that we all just sat around afterward, stunned, because you almost never get an opening like that unless you (a) do all of your homework and check it five times over and (b) the stars align just right and your opposing counsel screws up. 

So now I'm asking myself:  who on Team Libby was assigned to read this particular expert witness' information, do her hearing preparation, and thought, in their wildest dreams, that Patrick Fitzgerald seemed like the sort of fella that didn't do all of his homework and then some?  Because, as I have said before, the devil is in the footnotes — and Pat Fitzgerald evidently learned that lesson as well.

Fitzgerald challenged the validity of memory research. Citing footnotes in her publications, presenting conflicting statements and questioning her methodology, Fitzgerald got Loftus to acknowledge that a statement in one of her research papers was taken out of context and that a figure in one of her books was incorrect.

Brilliant. Just brilliant.  That mathematics major from Amherst still comes in handy, I see.

That Fitzgerald was able to pick this memory testimony apart at its very inception — before a judge has even ruled on whether he will even allow any memory expert at trial in the first place, is an enormous blow to the Libby legal team.  That Fitzgerald was able to do so with their first witness out of the box on the subject…priceless.

I'm not saying that Team Libby cannot call other witnesses and turn this around somehow, and rehabilitate the subject and the potential testimony, but this is really devastating for them.  Especially since they started the hearing with one strike already.  Judge Walton indicated to the courtroom before testimony began that he was predisposed against allowing such memory testimony, but that he would allow Team Libby to attempt to convince him otherwise

At the outset of the procedural hearing, U.S. District Judge Reggie Walton indicated that he was not inclined to allow a memory expert to testify at the trial. Still, he allowed Libby's lawyers to present a witness to bolster their claim that memory experts would help in his defense.

That is a very steep hill to climb when you are starting out with the theory of your case hanging in the balance as defense counsel.  Especially when, throughout the hearing, Judge Walton is asking the witness follow-up questions as well, and expressing skepticism about answers:

Throughout the hearing Judge Walton expressed skepticism on the findings of Dr. Loftus, suggesting that juries would not be able to use simple common sense in determining the effect of memory on the testimony of trial witnesses.

One finding in the work of memory experts is that, when interviewed as a group, jury's understanding of how memory is involved in trials actually improves. Walton asked, "could the jury deliberations make it more right?" Loftus reluctantly admitted to the judge that it could.

So, let me see if I understand this: Team Libby hired an expert to bolster the credibility of the memory expert they want to use at trial. Instead, she succeeded in solidifying the judges perception that juries usually end up getting it right most of the time, if they are given good information and time to talk amongst themselves about all of the evidence — thereby showing that the memory expert really isn't needed so much, because the jury can make up their minds themselves whether Scooter's hard job made him forget to follow the law or whether he's just a liar trying to cover his behind (and perhaps others as well).

Is that about it?

I cannot get my hands on this transcript soon enough.  A prosecutor who eviscerates a witness on the stand using her own footnotes?  Oh yeah, baby, man after my own legal heart.  And Team Libby?  They uncharacteristically had no comment as they left the courthouse yesterday.

Apparently the CIPA hearings are also ongoing, because Judge Walton closed the courtroom after the expert witness testimony portion for more closed door hearings on classified information.  Whether they are still going over individual materials or now onto arguments about relevance and admissibility, I don't have any solid information.  But given the sheer amount of material requested by Team Libby, it is likely to still take a while, I would imagine.  Libby has unlimited fundage from his GOP cronies to keep this fight going indefinitely.  Pat Fitzgerald has himself and a team of four or five attorneys, and a few folks on loan from the FBI, all of whom have full-time jobs with other US Attorney's offices or FBI offices as well.

Team Libby may have been hoping for some burnout and mistakes from Fitzgerald and his team.  I think their first expert on the stand just got Patrick Fitzgerald's response on that.

I also have received copies of some of the more recent filings in the case, via Jeralyn and the person behind the PJF blog, but my tired brain has not been able to do the full analysis on them that they need.  Am hoping to get to that this weekend for everyone, because I've been getting lots of requests for it from the legal beagles who know they are out there in the PACER system.  I promise, as soon as I can, I'll hit them as well.

(H/T to reader "rbb" for the MSNBC article link.  Why yes, that is an angry bear.  Why do you ask?)

UPDATEThe WaPo has a great descriptive take on the hearing as well — huge thanks to Disgusted in St. Louis for the link.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com