Friday, July 06, 2007

Libby Sentence Shenanigans

Who knows
the depth
of the real deal ... ?

The Cool Justice Report
July 6, 2007

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

Newly convicted felon I. Lewis "Scooter" Libby, former chief of staff to Vice President Dick Cheney, was recently sentenced to 30 months in prison, as well as a fine of $250,000.00. Libby's lawyers had argued that his record of public service entitled him to leniency and a departure from the range of possible sentences created by the United States Sentencing Guidelines. Judge Walton disagreed, and chose to accept an alternative analysis on the guidelines that permitted him to sentence Libby to a term greater than the original potential Guidelines term of 15-21 months. Judge Walton also quickly rejected defense arguments that Libby's record of public service entitled him to leniency. An appeal has been promised, as expected.

Libby's defense team sought an appeal bond to permit him to remain free while the appeal is under consideration. In the federal system appeal bonds are not a matter of entitlement and are not preferred. The sentencing judge must be of the belief that the appeal raises substantial issues that have a reasonable chance of success. Judge Walton did not agree. The defense immediately sought review of this decision from the Court of Appeals, but the request was denied and Libby ordered to surrender.

President Bush responded by issuing a rare order, commuting Libby's sentence of incarceration. He justified this by noting that he left in the place the multiple felony convictions as well as the fine and probation that Libby received. In the President's words, Judge Walton's sentence was "excessive." This caused the expected deluge of opinions, for and against, from conservatives and liberals.

In 1987, responding to a mandate from Congress, the United States Sentencing Commission promulgated the U. S. Sentencing Guidelines, an intricate set of sentencing rules for federal judges. The goal of the Guidelines was to eliminate disparate sentencing among the various districts.

Through a series of complex steps a two-part analysis was prepared by the Probation Office. The first, focused on the extent of the conduct; while the second focused on the background of the defendant. By establishing severity levels that tracked the extent of criminal conduct (in drug cases the weight of the drugs; in fraud cases the amount of money lost) the Commission sought to create ranges within which federal judges were required to sentence, absent certain specified grounds for departure. The second prong of a guidelines analysis focused on the individual, creating criminal history categories, based on the presence or absence of prior convictions.

What Congress and the Sentencing Commission hoped to accomplish was to identify what it called "the heartland cases;" that is, those cases, similar in nature, that should require uniformity in the sentences imposed. In 2005 the United States Supreme Court found the guidelines unconstitutional but determined that they should remain as "advisory." In reality they are still the cornerstones of federal sentencing but judges can chose, in some instances to impose a non-guidelines sentence.

At the heart of the debate when the guidelines were introduced, was the argument that they removed sentencing discretion from judges -- the very essence of judging. In a non-guidelines setting, sentencing judges have great discretion to credit a defendant with a life of good works, and thus a more lenient sentence. For the first offender with strong community and family ties, this alone can often mean the difference between jail and probation. Under the guidelines this discretion was eliminated. A lifetime of good works was subsumed under the most favorable criminal history category. Defense lawyers were left to argue for the lower range of the guideline sentence.

Judge Walton did not react favorably to the arguments focusing on Libby's political and social contributions. In 2003 when former Bridgeport Mayor Joe Ganim was sentenced after his corruption trial, that judge refused to acknowledge that he deserved special credit for the multitude of good works he had accomplished while in office. The judge believed that the job of mayor required that level of service to the public and thus created no special basis for leniency.

The President's actions in commuting this sentence are yet another example of blatant political cronyism. All the reasons cited by Mr. Bush to justify his action have been repeatedly argued against in other sentencings by his appointees in the Justice Department and on the federal bench. In condemning Walton's sentence he has undermined the very purpose the guidelines were meant to serve. Judge Walton had the discretion to impose a 30-month term and reject an appeal bond. The Court of Appeals had the discretion to also reject the appeal bond.

Bush should have called this what it is, nothing more than a favor to his sidekick, Cheney.

The cold hard prospect of a jail cell, especially for a person of privilege, often compels a defendant to reach out to the government seeking leniency in exchange for implicating others. Now that he is spared prison, we will never know whether his lack of fortitude as the key turned in the jailer’s lock would have brought about revelations about the Vice President. Who knows the depth of the real deal that was struck?

Sadly, it is a clear example of this administration's lack of regard for the rule of law. A full pardon is probably in the wings awaiting the action of the Court of Appeals. We are just being fed this in small doses.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, American Academy of Trial Counsel. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website,

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  • 1 comment:

    Connecticut Man 1 said...

    "Bush should have called this what it is, nothing more than a favor to his sidekick, Cheney."

    That is an incorrect assessment of the situation. Not only was Libby an aide to cheney BUT he was also an assistant to bush. Libby said that in his testimony. He had 3 seperate jobs under this administration, and one of them was assistant to the president.

    Everyone ties this to cheney, but bush was playing CYA when he obstructed Fitzgerald from being able to use his one lever left to coax the truth out of Libby. That is what bush did when he commuted Libby's prison time.