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WASHINGTON-The “scapegoating” and “faulty memory” defenses previewed last week by the defense in the I. Lewis “Scooter” Libby perjury trial triggered an eerie sense of d�j� vu among some veteran lawyers of the Iran-Contra investigation of more than two decades ago. The two defenses are classic responses to perjury charges in a far-from-classic trial involving the former chief of staff to Vice President Richard Cheney, and are “tricky” for defense lawyers to accomplish successfully, according to those veterans and other white-collar defense attorneys closely watching the trial. “It is truly one of the most unusual perjury cases we’ve seen in some time,” said former federal prosecutor Robert A. Mintz of McCarter & English in Newark, N.J. First, Mintz said, the prosecutor’s investigation was into a leak-the disclosure of the undercover identity of CIA agent Valerie Plame-not into a crime like insider trading, as with Martha Stewart, or into a crime of improperly handing out initial public offerings, as with Frank Quattrone, two recent high-profile perjury and obstruction-of-justice prosecutions. “In those cases, the underlying crime was something that had a greater air of criminality about it, and I think jurors understood what those investigations were about and why someone who might have been involved might have lied to avoid prosecution,” said Mintz. The Libby case, on the other hand, “was very political from the start and invariably bound up in the Iraq war,” he added. Oliver North redux In opening statements last week, Libby’s defense counsel, Theodore V. Wells Jr. of Paul, Weiss, Rifkind, Wharton & Garrison, asserted that his client was sacrificed by top White House officials in order to protect senior presidential adviser Karl Rove during the leak investigation. The Libby “scapegoating” defense had “distinct echoes” of the defense mounted by Oliver North in the Iran-Contra affair. Indicted on 16 counts, North was convicted of only three minor charges. Afterward, interviews with jurors revealed they had rebelled against the notion of convicting North when his supervisor, former National Security Adviser Robert McFarland, received a “sweet” deal to testify against his former subordinate, recalled one former Iran-Contra prosecutor. Two critical hurdles for Libby using this defense-but not for North-according to these former prosecutors, are that Libby held a very high position inside the White House, not a lower-level staff position as North held; and that the North jury, unlike Libby’s, was “vastly undereducated,” the result of potential jurors’ exposure to immunized testimony. Other Iran-Contra figures, such as Caspar Weinberger, Colin Powell and even then-President Ronald Reagan, they said, also claimed “faulty memory” at different stages of the investigation by Congress and the independent counsel. Weinberger subsequently was charged with perjury and obstruction of justice but was pardoned by President George H.W. Bush before trial. Faulty memory is an “obvious” defense to perjury, said former federal prosecutor and white-collar crime scholar Pamela Bucy of the University of Alabama School of Law. “It’s going to be very fact-specific as to how credible it is: how clear were the investigators’ questions; how capable was the defendant-intelligence, organization, alertness-and with Libby, how busy the person was and how significant the issue was at that time of their lives,” Bucy said. A variation of this defense has been seen in recent, high-profile corporate prosecutions, said Peter Henning of Wayne State University Law School, also a former federal prosecutor. Henning calls the variation “the too busy CEO” defense. Those cases involved fairly technical areas, as in accounting cases, said Henning. But the Libby case, he added, is not a hard case in the sense of complex facts, but it is a very hard case in the sense of who can persuade the jury. “You might as well toss a coin as handicap this trial,” he said. “Who is the jury going to believe?”

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