Wednesday, October 29, 2008

What Is the Scooter Libby Factor For Ted Stevens?


The Cool Justice Report
Oct. 29, 2008

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

"It's always the house that does them in!"

So said a friend who has closely followed the travails of public officials under federal investigation. Those officials include Joe Ganim, John Rowland, and several sitting mayors in Connecticut who have learned that grand jury subpoenas were issued to contractors and subs.

With the conviction this week of Alaska U.S. Sen. Ted Stevens in Washington, D.C., on seven counts of lying on federal disclosure forms, it appears the house did him in as well.

Stevens shocked legal observers after his July 2008 indictment when he demanded a speedy trial before his November re-election attempt. Readers of this column will recall the adage that my Dad invoked whenever a client demanded a speedy trial against his lawyer's advice. Growing up on the tough east side of Bridgeport he always said, "When you go looking for a fight you generally get your butt kicked!"

Now that is not a condemnation of the founding fathers that determined that the Sixth Amendment mandate the right to a speedy trial. The question of how speedy is the important tactical decision.

Clients have the right to go this route despite advice from counsel. Strong-willed clients often overlook or veto sound legal advice.

Cases take time to prepare. No one wants to sit and fester under the weight of indictment, especially those who perceive they are innocent. But clients must understand that the government has spent countless man-hours interviewing witnesses and reviewing records. Investigators take all the time they need, tempered only by the applicable statute of limitations.

While the bravado of proclaiming innocence and looking forward to the jury hearing all of the evidence is the usual mantra on the courthouse steps following an arraignment, that bravado should not propel an accused into a trial that has been hastily prepared. This is, of course, not a criticism of the Stevens' legal team, an assemblage of acknowledged experts in Washington legal circles. This type of indictment does not usually take politicians by surprise. Although the grand jury meets secretly, the existence and focus of that grand jury becomes apparent to the target long before the formal indictment is issued. Competent defense lawyers work toward a trial defense, anticipating that an indictment will be issued.

Here, however, Stevens' demand for a trial preceding his re-election bid strongly suggested more than bravado. It projected an image of a Washington elitist who believed he was above the law. The indictment was an inconvenience.

That same sense of bravado was apparent in the senator's decision to testify, despite being advised by the trial judge that he should carefully consider that decision. Under federal sentencing guidelines the court will impose an enhancement for obstruction of justice when a jury returns a verdict contrary to the testimony of the accused.

Stevens' testimony was a disaster. For three days he argued with prosecutors. He clearly failed to sway the jury.

Pundits have projected that Stevens will not serve much prison time. His guideline range has been projected by some to be somewhere between 18 and 36 months. The judge may also fashion a non-guidelines sentence, departing from the strict guidelines requirements.

Then there is the "Scooter Libby Factor" -- the possibility that President Bush will either commute any prison sentence or pardon Stevens altogether. As a lame duck dragging the economic disaster into history behind him, pardoning Stevens could not create any greater tarnish on the Bush legacy. One has to wonder if Stevens' bravado was not fostered by a belief that he had the potential for a presidential pardon in his hip pocket all along. Only time will tell.

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, Litigation Counsel of America -- Trial Lawyer Honorary Society. 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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