Fitz Goes Ginsu on Scooter's Witness

By scribe, Section Diaries
Posted on Fri Oct 27, 2006 at 09:49:57 AM EST
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Or, maybe it's Veg-o-Matic. In either event, in Court yesterday, Fitz personally sliced, diced, and made perfect julienne fries from Scooter's proposed memory expert.

The lead paragraphs:

"With withering and methodical dispatch, White House nemesis and prosecutor Patrick J. Fitzgerald yesterday sliced up the first person called to the stand on behalf of the vice president's former chief of staff.
"If I. Lewis "Scooter" Libby was not afraid of the special counsel before, the former Cheney aide, who will face Fitzgerald in a trial beginning Jan. 11, had ample reason to start quaking after yesterday's Ginsu-like legal performance.

As a one-time bulk consumer of late-night low-budget TV ads, I opine, with some certainty, that the WaPo got it partly wrong.

I think Fitz went Veg-o-Matic ™ more than he went Ginsu ™.

The Ginsu knife cuts through anything. Those ads were highlighted by the product demonstrator hacking up beer cans or shoes and then slicing tomatoes with sushi-chef precision, using the same Ginsu. On the other hand, the Veg-o-matic, really the granddaddy of these ads, was known for the catch line "it slices, it dices". Those more acquainted with the Veg-o-matic will recall it also made perfect julienne fries.... Or maybe it was the Mince-o-matic [broadband video of commercial] or a Minute Chef [another video].

More importantly, though, is the contention implicit in the article that Loftus' testimony will not "help the jury determine a fact in issue." That quoted phrase is the critical component, really the test, the judge will have to apply when he decides whether to allow the proposed witness to testify as an expert. This is the standard which separates so-called "junk science" from admissible expert testimony. From the looks of the article - I haven't seen a transcript anywhere, yet - I'd say Fitz did a number on Loftus and may have won this battle. It's hard to do, but can be done. This, the kicker at the end of the article, shows why I think Fitz kept her out:

There were several moments when Loftus was completely caught off guard by Fitzgerald, creating some very awkward silences in the courtroom.
One of those moments came when Loftus insisted that she had never met Fitzgerald. He then reminded her that he had cross-examined her before, when she was an expert defense witness and he was a prosecutor in the U.S. attorney's office in New York.

That's almost as good as getting the witness in the position of having to answer "which time were you lying, then or now?"

Good memory, perfesser. Nice job, Fitz.

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Fitz Goes Ginsu on Scooter's Witness | 3 comments (3 topical)

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RE: (none / 0) (#1)
by Deconstructionist on Fri Oct 27, 2006 at 10:52:27 AM EST

"One of those moments came when Loftus insisted that she had never met Fitzgerald. He then reminded her that he had cross-examined her before, when she was an expert defense witness and he was a prosecutor in the U.S. attorney's office in New York."

Uh, while that exchange is likely irrelevant to the admissibility question, would it not actually buttress Libby's position-- that it is possible for someone to forget something; that claiming to forget at TIME A is not necessarily a "lie" even if the event is later recalled at TIME B after some catalyst to stimulate the recall?

: Loftus the foregetful (none / 0) (#2)
by scribe on Fri Oct 27, 2006 at 11:05:24 AM EST

Like most things us lawyers argue over or do, it cuts both ways (just like the Ginsu!).
On the one hand, you have a point, Decon. (But, it's not her memory in issue, it's Scooter's. Experts don't do demonstrative evidence.)
On the other, she got forgetful either (a) because the cross-exam left her so discombobulated she didn't know which end was up or (b) she didn't respect Fitz after the first time, so she "forgot", or (c) she has a bad memory. None of these helps her (and her client's) argument that her testimony would help the jury determine a fact in issue. (a) and (c) mean she's a lousy witness and shouldn't be called as a proposed expert.
And, if (b) was the case, she may not have remembered Fitz before, but she'll never forget him now.
Also, remember that if she is allowed to testify at trial, she can be cross-examined before the jury using her transcript from yesterday. First, that can't help her. Second, if she varies her trial testimony by even a millimeter, she gets nailed both by questioning on why she changed it and by the jury dropping her cred even more.
All in all, a big loss for the defense.

UPDATE (none / 0) (#3)
by scribe on Thu Nov 02, 2006 at 04:37:06 PM EST

Today, November 2, Judge Walton barred Loftus from testifying.

U.S. District Judge Reggie B. Walton said allowing a memory expert would be a waste of time and would only confuse the jury. Walton said jurors, like everyone else, understand that memory sometimes falters and can judge for themselves whether witnesses are reliable.

As I said the other day:

... Loftus' testimony will not "help the jury determine a fact in issue." That quoted phrase is the critical component, really the test, the judge will have to apply when he decides whether to allow the proposed witness to testify as an expert. This is the standard which separates so-called "junk science" from admissible expert testimony. From the looks of the article - I haven't seen a transcript anywhere, yet - I'd say Fitz did a number on Loftus and may have won this battle.

Well.

(Please forgive my moment of triumphalism; Fitz did an excellent job of lawyering on this. And Loftus' career as an expert witness - very lucrative work - just took a major hit.)