Reversible error

The Wall Street Journal publishes a must-read article today by Elizabeth Loftus and Richard Steinberg on the injustice done to Scooter Libby by Judge Reggie Walton's refusal to allow a renowned memory expert to testify at the trial. Regrettably, the article is accessible only to subscribers, but I think it quite likely the paper will relent and post it to the free site, perhaps quite soon.

Some Fair Use excerpts:
Our Constitution guarantees every person accused of a crime the right to call witnesses in his or her defense. This right is so critical to fundamental fairness that trials in which it is not safeguarded have been deemed by the U.S. Supreme Court to suffer from a "structural error" so serious that an automatic reversal of any criminal conviction is always required, no matter how heinous the crime.

The central theory of Mr. Libby's defense was that if he made any misstatements, either to the FBI or to the federal grand jury, they were caused by faulty memory -- either his or that of the witnesses who testified against him. For over 30 years, psychological scientists have studied the mechanics of memory and conducted extensive and rigorous research on the subject -- reaching conclusions that are generally accepted in the scientific community. Of signal importance to the jurors in the Libby trial, the science of memory is diametrically opposed to the popular understanding of how the memory and the mind work. [....]

The Scooter Libby verdict was neither fair nor just because the jury never heard one of the most important pieces of evidence: an expert explanation of why faulty memory could be consistent with innocence.
This article deserves the widest possible audience.

Hat tip: Ed Lasky