CBS is being judged, albeit not in a docket, but rather in the court of public opinion. A well—established legal doctrine throws light on the extent of its troubles, and expands the dimensions of the Rathergate scandal. As the implications begin to sink in, CBS's defenses will weaken even further, while the consequences of its dereliction will widen.

Jim Pinkerton's Newsday column today quotes a Newsweek report which indicates that CBS News may have used the forged Killian memos to persuade another source, former Speaker of the Texas House and Lt. Governor Ben Barnes, to go public with his stories regarding Bush and the National Guard.

Leaving aside the fact that the story Ben Barnes and CBS peddled contradicts previous Barnes accounts, and has been discredited by, among others, Barnes's own daughter, this sequence of events cast further doubt on the honesty behind the Barnes story.

The legal doctrine of "The Fruits of the Poisonous Tree" states that evidence derived from tainted evidence should never be used in criminal cases. Memory researchers have indicated that memory is a very pliable construct and can often be distorted or shaped by exposure to recent "information," whether this information is false or not.

This case seems to beg for the application of this doctrine since CBS used fake documents to shape Barnes memory and compel his recitations. Rathergate's poisonous fruit have discredited two CBS scoops, not just one.