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 . . .