By Margie Burns on 1/25/2007, 4:48pm PT  

*** Special to The BRAD BLOG
*** by Libby/CIA Leak Trial Correspondent Margie Burns

As noted in an earlier post, the Libby defense team has emphasized memory lapses in the first three prosecution witnesses, government figures who placed Libby at the nexus of information about Joseph Wilson’s wife. Probing, sometimes repetitiously --- or so it seemed to me, sitting in Courtroom 16 --- for variable or incomplete memories took up much of the first two days of the Libby trial, now in its third day.

This line of attack has already been picked up by rightwing media outlets, including a gloating article posted this morning by Byron York at the National Review and another on a rightwing web site called "America Thinks."

More insidiously, the same line is seeping from some large media outlets. The Los Angeles Times ran an article today saying that the "memory defense" is aided by the government witnesses' own memory lapses, and the Baltimore Sun reports that the "'busy man' defense gains some ground". The local (D.C.) ABC television station presents a more balanced report, but very brief.

As it turns out, the memory defense at this stage of the Libby trial is not supposed to be used under judicial guidelines. Former prosecutor Christy Hardin Smith, also present in Courtroom 16 yesterday, points out that for Libby’s lawyers to plead shortness of memory, Libby himself has to take the stand as a witness, because it is his memories that are being referenced. The unremitting focus on witness memory for the entire day Wednesday seems to have resulted in a ruling from the judge that there will be no 'memory defense' allowed in the closing argument unless Libby does take the stand . . .

It would be impossible to predict outcomes at this point, especially for a non-lawyer. It is difficult, however, to imagine the circumstances under which the defense team would want Libby to speak under oath from the witness box.

Meanwhile, it must be noted – at the risk of pointing out the obvious – that "memory" is hardly the only faculty expected or required of a busy professional. I have a fairly good memory myself but well know that it is no more infallible than anyone else's memory. (Faulty memory is a universal, but a universal is not a constant.) Only a profoundly uncaring individual would forget about matters costing thousands of other people’s lives.

Descending to the mundane, part of professional responsibility is jotting down notes and reminders, so that memory doesn't have to serve.

Keeping communications flowing, keeping good records, and making copies are all part of probity. The obligation is no less essential but all the easier when the busy individual in question has an ample staff, to say nothing of the experts from other areas at his beck and call.

When did it become a given that Bush, Cheney and all their top aides – senior government officials – should neither keep nor be expected to keep records? Is relying exclusively on memory a hallmark of duties discharged?

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