thank you, Marcy, for today and all you do. . .

EW, just wanted to pop in for a minute to say thank you so much for your amazing work. I followed the liveblogging you and Jane did this morning (pining for a live stream on CSPAN-3 the whole time And then I watched the SJC hearing this afternoon and was tickled to see you there at the end. I am not a blogger myself and have no desire to be one, but I am so very thankful that you folks are here. You are a tremendous resource of information and a national treasure. So again, I thank you.

Also, I see there’s some misunderstanding of Walton’s stance on bail. He says no. He has given the Defense a last ditch attempt to convince him that the appeals have merit….

Just to get some double-super clarification on this: Does team Libby have to persuade Walton that their planned legal appeals (i.e. appeals of the guilty verdicts) have merit? Or is this about begging for bail just because Scooter’s such a great guy?

————–

Also, this thing at TIME ticked me off:

[P]re-trial maneuvering found the prosecutor, Patrick Fitzgerald, insisting that this was not a case about a leak and fighting defense requests for documents about whether Plame was ever a covert agent….

Let me join in saying: Thank you for your live blogging. As you related it, Team Libby was underwhelming. My mind strays to a thought: what did Team Libby get paid for today? And just what were their services worth? I feel not one twinge of sorrow for Libby, but can Team Libby just laugh off their shortcomings because they â€just do it for the money?â€

The Republican debate now getting into â€Should GWB pardon or would you pardon Scooter Libby?â€

i hung on every sentence typed by
you two all day today! — thank you
so so much — history will thank you,
as well. . .

but now — i am in full hair on fire
rant mode — the sitting vice president
just put out a government press release,
using our dollars, and our whitehouse.gov
website — lauding libby’s integrity.

all while seeking to influence the
outcome of the appeals. . . SCREAM with me!

SCREAM about this one, please!

for the love of goddesses — scream!

here is the white house press release.

my take on it is here.

oh — and above. flame-off. . .

nolo –

I probably should have screamed, but I confess that Big Dick’s reference to the administration of justice a â€tragedy†really just made me laugh.

Great job liveblogging, Marcy. You caught some great statements, especially the one where Wells said Libby was â€alone†in the White House in having integrity (that’s a paraphrase, not an exact quote).

â€because if it weren’t there’d be no way to hold anyone in DOJ acountable if they broke the law. You think he has someone(s) in mind?â€

I read that as referring to AG Alberto Gonzales.

i am honored to read you.
you are a great american.
thank you.

bmaz

a pleasure to read a second interesting and insightful opinion on this post.

having read your comment, it occurred to me that maybe libby and company already have walton’s reputation accounted for, and are setting up for an appeals court decision (thus sparing the prez the necessity of a pardon).

i seem to recall that the d.c. appeals court has a preponderance of right-wingers.

am i wrong on this?

if not, maybe this appeal to authority by libby will go far among the authority-loving and national-sacrifice approving right-wingers on the appeals court or, if necessary, on the supreme court.

the way this admin, including its judges (bush v. gore) operate,

i would not put it past them to have already arranged an appeals decision in favor of libby.

outrageous?

indeed.

All I can say is WOW! Your reporting throughout the sentencing hearing was spellbinding! It was a good thing that I did not have to be real attentive at work today

To our friend BMAZ, I have had the feeling for a long while that Mr. Fitzgerald was dotting his i’s and crossing the t’s… and waiting… and waiting some more. I have been terribly curious about the â€Sealed vs. Sealed†indictment that supposedly came out of the grand jury — and wondering when it might come into play.

If I were either Karl Rove or Dick Cheney, knowing how diligent Pat Fitzgerald is in his work, I would have a hard time not looking over my shoulder constantly. In fact, I would be downright worried! And I would start having anxiety attacks thinking about Jane and Emptywheel blogging about my trial from the courtroom…

I really think it would make my rectum pucker up…

Emptywheel, it was a marvelous day thanks to you and Jane!

Don’t forget that Libby may still dance away scot-free. He will be appealing on the basis of Walton refusing to call his expert witness on memory.

And a strong case can be made, since there seems to be an epidemic of RFS going around Washington. [That’s the Republican Forgetfulness Syndrome, which was probably brought in over the border by some raghead/wetback, and has infected almost all of the DOJ hierarchy.]

I previously asked:

because if it weren’t there’d be no way to hold anyone in DOJ acountable if they broke the law. You think he has someone(s) in mind?â€

somebody answered: I read that as referring to AG Alberto Gonzales.

My response: yeah, I get that part, but I don’t see how it connects to Walton’s statement that â€Fitz’s appointment must be proper.â€

MW, I’m glad you are on the case. I’ve seen sharp minds and I’ve seen sharp minds. I was thinking, you would make a great prosecutor and then I was thinking, I’m jealous of all the good people from Slugo, Ireland.

Thank you for suggesting we write Judge Walton. I did and he got it doc359

EW, I echo everyone else’s thanks for keeping on top of this.

Nolo, I think the key is that Cheney has a different theory of justice than you. Consider this. Yesterday Omar Khadr and Salim Hamdan had their charges dismissed after about five years detainment at Guantanamo Bay. I searched in vain to find a Cheney word of sympathy about the inconvenience to their familes. But I did find this from the BBC from two years ago:

Mr Cheney says that those prisoners who remain [in Guantanamo] are â€bad people†and â€hardcoreâ€.

So, comparing what Cheney said about Libby and the Guantanamo detainees, Cheney’s theory of justice appears to be good guys, even if they are guilty, should NOT be inconvenienced by going to prison, but bad guys, even if they are innocent, should rot there.

You rock, Marcy!

For those who are criticizing Ted Wells, please keep in mind that he had a lousy case to work with. His client was convicted of repeatedly and consistently lying his ass off. His client couldn’t even bring himself to say, â€You know, now that Judy Miller has spent 2 1/2 months in jail to protect me, and half a dozen people have testified in open court that we discussed Valerie Plame long before my conversation with Tim Russert, it’s sort of jostled my memory a bit, and I do sort of have this hazy recollection of betraying a CIA agent’s identity. But it was totally an innocent mistake. It just LOOKED like a well-orchestrated scheme that I subsequently had to lie about. I’m REALLY sorry about all this. My bad.â€

Despite all the Republican spin, the bottom line is that two reporters testified in open court that Libby betrayed Plame’s identity to them. That’s what this whole case was about from the very beginning. And Libby screwed himself so badly with his lousy lies that he couldn’t even take the stand in his own defense. (By the way, while I’m ranting, what ever happened to the the long-held right-wing belief that only guilty people won’t take the stand in their own defense?)

EW, you’re the only source I consult for information on this important trial. You’ve been stellar throughout. I can’t thank you enough.

Kudos to Judge Walton, too, who appears to be emulating his Pittsburgh Steelers.

Jodi, you are wrong about the so called â€memory expert†and Frank Probst is correct. The historical precedent on admissibility of scientific opinion testimony is contained in two cases, Daubert v. Merril Dow and Frye v. US. The proffered testimony of Elizabeth Loftus didn’t meet the standards of either. You should know that Loftus has been precluded from offering this type of testimony before. The standard for appellate review is abuse of discretion. In layman’s terms, the appellate court would have to find that there was no reasonable basis possible that could support Walton’s determination in this instance. If there was a chance in hell that such a standard could have been met to start with, and there is not, it was removed by Libby’s refusal to take the stand and laty an evidentiary basis for such a consideration. This is a non-starter. Lastly, I don’t believe under the relevant standards that â€memory recollection analysis†is a cognizable subject for expert witness testimony; but if it was, Loftus is not the proper expert (exactly why she has been precluded before). I know Liz Loftus, I have retained her as an expert witness on criminal cases before. Her field of expertise is in eye witness identification. She and a collegue literally wrote the book in that narrow field. She is very bright, but has never been a particularly good live witness on the stand; she is much stronger in affidavits and in simply preparing attorneys themselves to cross-examine critical eyewitnesses. After decades, she tried, quite unsuccessfully for the most part it has turned out, to branch this out into a new little sub-niche of memory recollection. It was, and is, bogus.

If Mr. Libby goes to prison, he will be the first senior White House Republican official to do so since the days of Watergate, when several of Republican President Richard M. Nixon’s top aides, including H. R. Haldeman and John D. Erlichman, served prison terms.

http://www.nytimes.com/2007/06…..BmDAn5TNqg

An intriguing question for many is what role Mr. Cheney will play in pressing Mr. Bush to grant a pardon.

Irrespective of what you petulently think, Jodi, there exist long lines of statutory and case precedent on how courts are to procedurally administer justice. Until told otherwise, trial courts are obligated to follow this rule of law; on this issue, in this case, Judge Walton meticulously did so. That is how it is supposed to be; that is how it was. End of story.

Judge Walton’s use of â€stepping over the line†reminded me of Goodlings’ â€I crossed over the lineâ€.

Marcy, great as always. I agree, Wells has his work cut out for him for his final plea on the bail issue. I understand Judge Walton wasn’t exactly ecstatic while Wells was reading Libby’s love letters. Had to laugh when he snapped out something like â€I’ve read them.†Just who was Wells trying to impress? (Like, the media?)

â€But as things stand, the default is Libby gets no bail (though it’ll take the prison system some time to get him into jail–perhaps 45-60 days).â€

Well, yes, they need time to hire and train his very own personal chef, get those tennis courts and golf course back up to â€presidential shape†and enlarge his cell to acommodate the king-size waterbed and 48†TV. I mean, priorities, man.

â€. . .So, comparing what Cheney said about Libby and the Guantanamo detainees, Cheney’s theory of justice appears to be good guys, even if they are guilty, should NOT be inconvenienced by going to prison, but bad guys, even if they are innocent, should rot there.â€
Posted by: Steve | June 05, 2007 at 23:48

thanks steve, i think
that is entirely correct.

if we call yours â€cheney’s rule #1â€, then. . .

it is only one-half of his whole,
but secreted, theory — the second half
easily referred to as cheney’s rule #2:

â€in situations otherwise covered
by cheney rule #1, EVERYONE should
go to prison to protect me — the best,
of the very best, of the good guys. . .â€

707!

Jon:
In my family, lying was considered worse than, and punished more than, the original ’bad act’. I learned if I confessed I got off a lot lighter than if I stalled or obfuscated. Maybe perjury and obstruction sentences should add 20% to the underlying crime. That way there would be a lot more confessions.

Poor Jodi. There’s always an excuse. Now she wants to re-write criminal procedure and decide how trials should be conducted.

I don’t know if the memory thing could have been used effectively or not. Aren’t we supposed to have a trial by our peers, not by Judges and Prosecutors. It seems not inconsequential that Mr Libby was denied a Memory witness when he was being tried on whether his memory on these events was a lie. If the Judge and the Prosecutor then want to take on the Memory Witness at the trial and make fun of her, then fine.– Jodi

Her gambit reminds me of Dr. Bill Frist and the Republic Party’s decision to re-diagnose Terri Schiavo as if only their judgment – and without any actual first hand knowledge – was the right judgment. It was brain-dead wrong.

Prehaps Jodi â€misremembers†what happened to convicted liar and justice obstructor felon Scooter Libby’s memory defense at a pre-trial hearing.

WaPo 10/27/6

…Elizabeth F. Loftus, a professor of criminology and psychology at the University of California at Irvine. For more than an hour of the pretrial hearing, Loftus calmly explained to Judge Reggie B. Walton her three decades of expertise in human memory and witness testimony. Loftus asserted that, after copious scientific research, she has found that many potential jurors do not understand the limits of memory and that [Libby] should be allowed to call an expert to make that clear to them.
â€In the Libby Case, A Grilling to Rememberâ€

NBC News, 10/26/6

Special Counsel Patrick Fitzgerald vigorously cross-examined Dr. Elizabeth Loftus, a memory expert and defense witness at the procedural hearing. Loftus, the first witness to appear in the case, testified in support of a motion by Libby’s attorney that Dr. Robert A Bjork, the chairman of UCLA’S psychology department, should be admitted as an expert witness at trial.

Fitzgerald’s … questioning of Loftus caused her to admit that some of her own findings about what juries know about memory were faulty and that some of her own research may have been flawed.
â€Memory expert taken to task in Libby hearing: Special counsel causes witness to question her own researchâ€

bmaz & Neil,

Free advice is usually worth what you pay for it, but I’m going to give you some anyway. Don’t get involved in arguments with anyone who believes she is entitled to her own set of facts. I’ve found that the best approach is simply to ignore the existence of such comments, except when the disinformation needs correcting. In that case, I’ve found that simply posting the correct information without acknowledging the existence of the disinformation is adequate. For the most part, the community here is intelligent enough to assess the credibility of the various commenters.

Obviously, others here have different approaches. To each his own. Although I do worry that freepatriot enjoys his self-appointed duties a little too much.

well, the New York Times got the story wrong, so I wrote to the Public Editor, and got back a note saying that it was being sent on to the Corrections Editor..

Here’s the letter…

Dear Public Editor:

In a June 6th article entitled â€Libby Given 30 Months for Lying in C.I.A. Leak Case†(http://www.nytimes.com/2007/06/06/washington/06libby.html?_r=1&hp=&adxnnl=1&oref=slogin&adxnnlx=1181126004-SNx036lOyNfW3IKpYlhUeg ) reporter Neil A. Lewis states:

â€The sentence was several months longer than the minimum recommended by federal sentencing guidelines, based on what Judge Walton said was his agreement with prosecutors that Mr. Libby’s crimes obscured an investigation into a serious matter and that his lies obliged the government to engage in a long and costly investigation that might have been avoided had he told the truth.â€

The clause â€[t]he sentence was several months longer than the minimum recommended by federal sentencing guidelines†is false. The process for determining sentences under the guidelines for obstruction of justice cases include what is called â€cross-referencing†— i.e. determining whether a convicted defendant’s â€crimes obscured an investigation into a serious matter and that his lies obliged the government to engage in a long and costly investigation that might have been avoided had he told the truth.â€

This was made abundantly clear during the first phase of the sentencing hearing, which was literally all about which guidelines were to be used in this case. The defense argued that cross-referencing should not apply in the case, and that the appropriate sentencing guidelines would result in a term of 15-21 months for obstruction. The prosecution argued that â€cross-referencing†should apply, and that the term under the guidelines should be 30-37 months for the obstruction charge.

After hearing arguments, Judge Walton ruled that the â€cross-referencing†guidelines were the appropriate ones to use. The â€30 month†sentence was thus at the LOW end of the sentencing guidelines for the obstruction charge.

For reference, I will cite both the prosecution’s sentencing memo:

http://thenexthurrah.typepad.c…..g_memo.pdf

and the defense’s response to that brief

http://thenexthurrah.typepad.c…..encing.pdf

which states, â€The government contends that the Probation Office incorrectly determine the offense level for the crimes of which Mr. Libby was convicted, and that the Court should apply either of two enhancements under the Sentencing Guidelines.†(i.e. â€enhancements†are part of the determination of what the appropriate sentence is under the Sentencing Guidelinesâ€)

Bottom line… The paragraph should read something like

â€The sentence was was the lowest possible recommended by federal sentencing guidelines, based on Judge Walton’s determination that Mr. Libby’s crimes obscured an investigation into a serious matter and that his lies obliged the government to engage in a long and costly investigation that might have been avoided had he told the truth.â€

Cordially,

Paul Lukasiak

William Ockham – That is sage advice and is generally a rule I try to follow. Unfortunately, I brain freeze, senile out, whatever the affliction is, every now and then. I did think the memory expert appeal winner tripe ought to be addressed because I had seen it start popping up other places as well. The last comment, however, noting the petulence of the one who shall go unamed, falls directly in your category of useless waste of time. I repent.

Posted by: p.lukasiak | June 06, 2007 at 11:01

Paul, thank you for posting your letter to the NYT here. I agree with your reasoning and it’s an important distinction I would not have noticed.

bmaz: you may have answered this, so I’m directing it to you. You said that the appellate standard of review is â€abuse of discretion.†That standard would apply to Judge Walton’s decision to exclude the expert(hah!) testimony about memory for the defense. If the DC Circuit reversed on this point, would the remedy be a new trial, or would Libby go free becuase of double jeopardy?

I know the standard of review for finding of fact by a jury is â€clear error.†And I know that appeals courts are very reluctant to reverse a jury decision.

Has anyone gamed out the potential grounds for appeal, the respective standards of review, and what the remedies might be for reversal on those grounds? Not that I want to do Ted Wells’ work for him, but we don’t have to write the whole damn brief, just try to anticipate what they’re going to say.

Tekel – I don’t know what they are going to appeal on, and the type of error an appellate court could, or would, find depends very much on what they are petitioned on and how it is pled. Other than in capital cases, appellate courts don’t really address any argument not specifically delineated in the notice of appeal. As a general matter, there is nothing possible that could lead to dismissal; a new trial would be the best they could hope for as far as I can tell. To be honest, I don’t see any fertile grounds for appeal in the first place. Keep in mind also, the concept of harmless error; where an appellate court agrees on some minor point, but there is no way that it could have materially affected the eventual outcome. It is just my opinion, but I just don’t see much hope at all on appeal for Scoots.

Petrocelli – You are very kind, but I am simply an idiot with a very portable laptop and some otherwise pretty useless knowledge and experience gathered along the way.

1. Let me add my thanks to EW for her prodigious scholarship and brilliant analysis. Awesome.

2. Like sojourner above, I’m curious about possible sealed indictments vs. Rove or others. As I recall, those reports were not strongly sourced. Can anyone provide the current thinking on this? Thanks.

hey shit stain, figured out that you believe a lot of shit that don’t corospond to reality yet ???

once you do figure it out (if you ever do figure it out) you’ll begin to see that you believe a lot of stupid shit

about 5 seconds of logical deduction could save you the embarrasment …

or you cna be a shit stain all your life

bmaz: I’m just trying to think about it from a lawschool perspective: if you were going to write the appeal, what process would you use to go about it? I agree that Judge Walton worked very conscientiously to keep from making arbitrary or capricious rulings, and that the outcome of any appeal would depend on how it’s pled. And I don’t have ew’s encyclopedic memory so I don’t remember all the rulings that were made off the top of my head.

But if I were going to try to do it, I guess I would start by combing through the FDL archives, compile a big list of all the rulings Walton made in the course of this case, rank them by â€potential for reversal†and â€severity of outcome if reversed.†And then pick the three or four best ones and brief those.

My parents are coming out west for a visit next week, so I probably won’t get around to actually attempting to do it. But Team Libby seem pretty eager to move forward with the appeal, so I guess we won’t have long to wait. And even though Fred Thompson was calling for a pardon yesterday, it sounds like Bush ain’t ready to give one out yet.

Say it loud:

The same ones proclaiming â€NO UNDERLYING CRIME!†are the same ones that would be proclaiming â€RULE OF LAW!†if Scooter was a Clinton staffer.

Hypocrites. All of them.

According to the prosecutors, the grand jury looked into whether IIPA or the Espionage Act were violated. Earlier on there was a sense among the blogs that the Espionage Act would be the one for which Rove and Libby would be found guilty. Why did they escape? Had too many officials leaked which made prosecution difficult? Was it the elapsed time and weak memories? Could it not be proved that Rove/Libby knew that she was covert? A combination of these factors? Something else?

The IIPA is often mentioned as very hard to prove. But the Espionage Act (from what I was led to believe) should have been easier to prosecute against. What is the consensus?

Similarly with conspiracy charges. If Libby testifies to leaking to Cooper while Rove does not, when infact it was Rove who leaked – doesn’t that provide an element of conspiracy?

p. luke:

holding their feet to the fire.

thanks.

?

how the hell could a reporter who had been in the room with the hearing going on or had looked at the transcript,

still miss the central evaluation of the sentence walton imposed on libby.

that’s impressive â€skullâ€ery:

numbskullery

or

skulduggery.

Jeralyn Merrit of TalkLeft, the politics of crime, agrees with me.

It wouldn’t be the first time Ms Merritt was wrong about this case. IIRC she thought that the defense had done a good job and introduced reasonable doubt.

Ditto for you.

Pete,
Tokyo John Casper,

first I am not a lawyer. If you want to talk hard science, mathematics, engineering, computers, innovation that sells, then you are sputtering around in my time-space.

I have known about Jeralyn’s arguments. You diss’ them for being those of defense attorney as if she is a pariah.

You speak of Emptywheel’s track record as compared to Jeralyn’s. Emptywheel has been correct about many things that happened in the trial. Sure. And a simple clock that doesn’t work will be right at least once a day, if not twice.

Emptywheel has also been incorrect a substantial number of times on this whole Wilson-Plame-Rove thing. I admire her work ethic, but I perceive that she is driven to prove what she has already made up her mind about, and keeps going like the bunny with the batteries.

For all the fury and froth, the most this so called investigation has brought about legally is a 30 (or 26) month sentence for guy who make a mistake trying to keep his story straight.

Again, to repeat my own position. The guy muffed his story. Sure. It should have been at most one count of perjury and we could quibble on the obstruction because that seems more complicated and depends on presuming stuff.

I notice the lawyer types bmaz, Gary, Neil haven’t yet tackled my bringing in Jeralyn’s arguments. But maybe they are busy like I was yesterday.

bmaz,

I understand you not wanting to tackle someone speaking the same leqalspeak you use.