Judy Miller's Note Triggered Memories

What an afternoon at the Scooter Libby trial. This is what I came to Washington for -- that sense of being right in the middle of the action, totally engrossed in the moment, never once looking at my watch, and when 5:00 came, wishing we didn't have to go home.

The day began slowly enough, with David Addington still on the stand and Libby lawyer Ted Wells questioning him about documents for almost two hours. Enough about that.

The main attraction was journalist and former New York Times reporter Judith Miller. She looked stunning, very pretty and impeccably groomed. The reporters in the courtroom all turned to watch her stride into the courtroom, chin up. Her lawyer, Washington powerhouse Bob Bennett, took a seat behind the Government's table. She was calm as she took the stand.

Fitzgerald did a crisp and clean direct examination, taking only 40 minutes to go through her career, how she hooked up with Libby, their meetings, her legal fight over being subpoenaed, her 85 days in jail, and her two subsequent grand jury appearances. Judy and Fitz were like a well-oiled machine. Unlike Ari who played to the jury, Judy directed her answers to Fitz, occasionally turning to the jury to explain a term, but then returning her attention to Fitz. The jury hung on to every word.

For the whole story, read Marcy Wheeler's great live-blogging. Shorter version: She met with an agitated, frustrated Scooter Libby on June 23, 2003. Libby complained to her about Joseph Wilson, whom he called "that clandestine guy," and Wilson's attack on the Administration's WMD claims, which he called "an irrelevant ruse." During this off-the-record meeting, Libby told her Wilson's wife worked in "the Bureau" which at first she interpreted as being the F.B.I., but then figured out he meant the C.I.A. and its non-proliferation division.

They met again on July 8, spending two hours in the dining room of the St. Regis hotel. Libby again was agitated. They had a wide-ranging discussion on the intelligence leading up to the war, and Libby asked her to not to mention him, but to attribute his statements to a former Hill staffer. He told her Joseph Wilson's wife worked at the CIA's WINPAC, the unit focused on WMD's.

She spoke to Libby twice on the phone on July 12. He didn't tell her where he got the information about Valerie Wilson and they had no discussions about whether her status was covert. Fitz then took her through her legal fight to avoid testifying which she said was the result of her not having received a personal, voluntary waiver from Scooter. As soon as she did, and as soon as Fitz agreed to limit her questioning to the topic of Libby, Wilson and Plame, she agreed to testify. The day after leaving jail, she went before the grand jury and told them about the July 8 meeting and July 12 calls, but had forgotten the June 23 meeting. That night, she found notes of the June 23 meeting, had Bennett call Fitz, and returned to the grand jury to describe that meeting in detail, her memory having been refreshed by her notes.

Judy, you see, has a note-triggered memory. She can forget an event even happened, but upon finding notes that it did, she remembers not only the event itself but details beyond those contained in the notes. Until she found those notes, she had zero recollection of having met with Libby on June 23, let alone what he told her. Once she reviewed her notes, she regained her independent memory of the meeting, Scooter's demeanor and his disclosures about Joseph and Valerie Wilson.

Enter Libby lawyer Bill Jeffress. He's a little guy, but a dynamo. Focused, no nonsense, polite but firm and pressing. He challenged Judy again and again on her selective memory, eliciting answers like, "I don't remember what I remembered then" and "Counselor, I already said, I didn't remember it, I just didn't remember it." Yet, she's now sure Libby told her about Wilson's wife working for the CIA. It's not that she was repeating what was in her notes, she said, it's that her notes brought back her independent memory.

Jeffress, being a skilled lawyer, began to test her credibility on her note-triggered memories. And that's what brought the trial to a standstill. She told him that she had no memory of discussing Valerie Plame Wilson before her June 23 meeting with Libby. He introduces a paragraph from an affidavit she signed, in which she mentions other sources for information related to Wilson's July 6 New York Times op-ed. Jeffress wants to know whether she can remember who those sources were and if so, he's going to ask her to identify them. Sidebar after sidebar results.

This isn't about the First Amendment, it's about Libby's right to impeach Miller's credibility, Wells argues. Fitz says asking her about sources related to the op-ed as opposed only to sources of information about Valerie Plame Wilson and her employment is too broad and not relevant to the case. Bennett weighs in. They go back and forth, and I'm nodding my head in agreement with each of them as they argue opposite sides. The Judge leans toward Fitz's position but is clearly concerned about not wanting to infringe on Libby's 6th Amendment right to confront and impeach Miller.

Judy by this time is clearly frustrated and anxious. She's repeatedly sorting her bangs, blowing her nose and taking sips of water. Finally, the Judge says he's going to sleep on it and he'll have an answer in the morning.

It's going to be a long night for Judy Miller. In the end, I think the Judge will split the baby, telling Jeffress he can ask about her other sources for information about Joseph and Valerie Wilson, but not other sources for the broader topic of everything in Wilson's July 6 oped.

What's the best that can happen for Libby? That the jury will conclude Miller's memory is so unreliable and selective they can't trust any of it. The worst? That some of the jurors will recognize themselves in Judy's account of her note-triggered memory. I know I do.

Matthew Cooper will follow Judy Miller. He and his lawyer were at the courthouse, waiting in the wings today, relieved I think they had another day before facing what's sure to be a grueling grilling by Jeffress.

(Jeralyn Merritt blogs daily at TalkLeft: the Politics of Crime.)

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    Baloney (5.00 / 1) (#3)
    by ding7777 on Wed Jan 31, 2007 at 08:00:53 AM EST
    How in the heck did she forget she had a whole shopping bag filled with notebooks until after ger 1st GJ testimoney.  

    not asked about them (none / 0) (#10)
    by squeaky on Wed Jan 31, 2007 at 12:35:47 PM EST
    If I understand you correctly the answer, not that I believe anything Miller says, is that she was asked about the time period in early July. At that point June was not on the table.

    Of course the reason June was not on the table is because Miller 'didn't remember' the meeting to begin with so the GJ never asked her to produce notes from June.  


    And there is this: (none / 0) (#12)
    by squeaky on Wed Jan 31, 2007 at 05:39:29 PM EST
    When it comes to impugning Miller's credibility, I'm surprised no one has brought up Murray Waas's October 2005 National Journal story, in which he reported: "Miller told the federal grand jury in the CIA leak case that she might have met with I. Lewis (Scooter) Libby on June 23, 2003 only after prosecutors showed her Secret Service logs that indicated she and Libby had indeed met that day in the Executive Office Building adjacent to the White House, according to attorneys familiar with her testimony."

    According to Waas, it was only after that that Miller "discovered" her notes from that meeting.


    Wow (none / 0) (#1)
    by jimakaPPJ on Wed Jan 31, 2007 at 06:32:27 AM EST
    I would love to be there.

    And it only takes one juror to hang it.

    Garden variety gossip? (none / 0) (#2)
    by robrecht on Wed Jan 31, 2007 at 06:47:29 AM EST
    IIRC, Judy said in her NYT account that she did not remember who first told her about Valerie Plame.

    Some found this hard to believe and use it to attack her credibility, but I would expect the defense to use it as an indication that neither she nor others (including Libby) saw this piece of information as especially important, just garden variety gossip.

    note-triggered memory (none / 0) (#4)
    by profmarcus on Wed Jan 31, 2007 at 08:10:16 AM EST
    i totally relate to not remembering a damn thing and having notes bring it all rushing back... the reason i take the damn notes in the first place is so that i don't have to rely on total recall or, since i am ridiculously far from having total recall, not trying to waste brain cells trying to keep all the facts of everything in my three-continent life in the neuronal synapses at once... i'd much rather use my brain power (what little i have left) focusing on the moment... i'd be mighty surprised if there aren't at least two or three jurors who understand exactly what ms. miller is describing when she describes "note-triggered" memories...

    And, yes, I DO take it personally  

    the underlying point is.... (none / 0) (#5)
    by Deconstructionist on Wed Jan 31, 2007 at 08:28:27 AM EST
    ... that Ms. Miller can forget things or recall them inaccurately until she reviews her notes and refresheds her recollection and that her prior foregtfulness or inaccuracy was not motivated by inent to deceive but honest lapse of memory. So, if that can happen to her, it can happen to Libby Defense counsel might just focus on whether Libby was afforded opportunity to refresh his recollection before he made his false statements.

    yep, pretty much so (none / 0) (#6)
    by cpinva on Wed Jan 31, 2007 at 09:40:39 AM EST
    That some of the jurors will recognize themselves in Judy's account of her note-triggered memory. I know I do.

    that would more or less be the whole point of taking notes. otherwise, why bother?

    So, if that can happen to her, it can happen to Libby Defense counsel might just focus on whether Libby was afforded opportunity to refresh his recollection before he made his false statements.

    i submit that would be a unwise tactic. since mr. libby is an attorney, and knew what he was being brought before the grand jury for, to assert that he made no preparations requires a massive suspension of disbelief, on the part of the jury.

    of course, he could also claim that he's just really stupid. the jury might buy into that.

    Refresh? (none / 0) (#7)
    by Abdul Abulbul Amir on Wed Jan 31, 2007 at 10:26:41 AM EST

    Did Libby have any notes to refresh his memory from?  Reporters take notes for the obvious reason.  Is it prevelant or even common for sources to take notes when speaking with reporters?

    Unfortunately for Mr. Libby (none / 0) (#8)
    by Repack Rider on Wed Jan 31, 2007 at 10:40:04 AM EST
    He had a lot of notes.  In his and Dick Cheney's handwriting.  About Wilson and Plame.  Dated before his conversation with Tim Russert.

    This would be the evidence that he was lying when he claimed first to have heard from Russert what he documented extensively before that date.

    So Libby probably DOESN'T want to "referesh his memory" from his own notes.


    but (none / 0) (#9)
    by Deconstructionist on Wed Jan 31, 2007 at 10:51:11 AM EST
    The burden is on the prosecution. Certianly, the prosecution could ask if Libby prepared for his testimony (although it would be unable to delve into any privileged communications with his lawyers). Libby could say that he did review certain materials but they did not include (a) Miller's notes or (b) other material that included references to him learning of Plame's identity from administration sources and discussing it with Niller or Cooper. Then, if during either interrogations of GJ it appears the prosecutors did not inform him of such materials and ask him directly whether such materials refreshed his recollection or just whether he sticking to those statements despite knowing other people said different things, it would bolster the failure to recollect defense.

    well decon (none / 0) (#11)
    by cpinva on Wed Jan 31, 2007 at 04:29:07 PM EST
    that assumes that libby will testify. further, it assumes that the jury is composed of total imbeciles, who wouldn't see through the transparent stupidity of that kind of response. ok, you might be on to something there.

    actually, it would make it appear that he purposefully was "ignorant", so he could lie, and then claim that he'd just "forgotten". i'm not sure this is the best tact.