Will Scooter Libby Get an Appeal Bond?

I won't have the transcript of Tuesday's sentencing hearing in the Scooter Libby trial until today. But, Neil Lewis of the New York Times, reports:

The judge said there was no issue that Mr. Libby’s lawyers could appeal that seemed to present a reasonable chance of succeeding. But he relented somewhat and said they could file briefs next week detailing their arguments that there were two reasonable grounds for appeal: that Mr. Fitzgerald’s appointment as a special counsel was improper and that Judge Walton had erred in prohibiting the defense team from presenting experts on the fallibility of human memory.

I have thought all along that Judge Walton's refusal to allow a memory expert to testify at trial was a critical error. But Judge Walton ruled Libby's case is distinguishable from a case of faulty eyewitness memory, which is notoriously unreliable and therefore might require expert testimony.


I think the case law in the D.C. Circuit supports Judge Walton. But I also think it's wrong.

The test for an appeal bond is whether there is an issue on which reasonable judges could differ, or which is novel and which -- if decided in the defendant-appellant's favor -- would likely result in reversal.

Judge Walton indicated at Tuesday's sentencing that he didn't think his refusal to allow a memory expert to testify was an issue that would warrant an appeal bond. I disagree. I thought he was wrong when he issued that ruling and I think reasonable judges could differ on the issue -- and if the issue was decided in Libby's favor, it would result in a reversal.

From a legal perspective, I would find Libby is entitled to an appeal bond on this issue.

Update: Here's the applicable portion of the statute:

(b) Release or Detention Pending Appeal by the Defendant.—

(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds—

.....(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

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    release on appeal (5.00 / 1) (#7)
    by kevinsdad on Wed Jun 06, 2007 at 10:48:06 AM EST
    I disagree that Libby has a valid memory expert issue.  The decision to admit expert testimony is discretionary, so the issue is not whether reasonable judges might disagree with the decision to exclude the memory evidence, but whether reasonable judges might conclude that the ruling lacked any reasonable basis in the law.  A huge difference, and fatal to Libby if the judge's decision is at all supported by law, as you say it is.  

    i've held my tongue. . . (none / 0) (#9)
    by the rainnn on Wed Jun 06, 2007 at 05:35:47 PM EST
    . . .in as much as i don't practice
    in this area, yet, when i read
    what kevinsdad had to say, that
    struck me as right, based on what
    little case-law i've bothered
    to read on this topic, this afternoon. . .

    here's hopin' that judge walton's
    wise, measured, solomon-like splitting
    of almost each truly-critical issue has
    put scooter's outcome beyond the usually
    effective clutching grasp (see iran-contra)
    of the d.c. circuit -- and, silberman,
    et al. . .

    [i will note that, by my count, there
    were only four non-republican letters
    written in favor of libby. . . (i had
    guessed "under six" would be the result.)

    and i was three months too-heavy on my
    sentence bet -- ah, that's cool with me. . .]

    but as to this, we shall see.


    If the case law supports Walton (none / 0) (#1)
    by magster on Tue Jun 05, 2007 at 11:52:55 PM EST
    then how could reasonable judges differ on this issue? Besides, I would like Libby to do some time before Bush decides to pardon him.

    I make a distinction (none / 0) (#2)
    by Jeralyn on Wed Jun 06, 2007 at 12:03:49 AM EST
    between the political and the legal.  I think judges in other circuits would disagree with Walton, but Walton only has to be correct at this juncture for his circuit.

    So, you are likely to have your wish. I don't think Libby will get the appeal bond, and then it's up to his lawyers to appeal the denial of the appeal bond to the D.C. Circuit Court of Appeals, which will decide the issue based on its precedents, not the other circuits' precedents.

    Nonetheless, the issue that troubles me most from a legal perspective, is refusing to allow a memory expert to testify.

    memory expert (5.00 / 2) (#4)
    by Carolyn in Baltimore on Wed Jun 06, 2007 at 08:29:15 AM EST
    The defense offered up their memory expert. I believe that if that expert had valuable input on the issues, she would have been allowed.
    as it was, Fitz had her contradicing herself, had her admitting her methods weren't scientific, her research was not in the  "I'm so busy I can't remember stuff" ream (ie: not applicable to the case).
    And worst of all, she didn't remember that Fitz has cross-examined her before.
    So they offered up a mess, and never quite showed how  a memory expert could save Libby's day.

    Walton made the right decision.


    Agree (none / 0) (#6)
    by byteb on Wed Jun 06, 2007 at 10:45:19 AM EST
    No critical error. Under Daubert, Walton is the gatekeeper.

    I can't stop laughing (none / 0) (#8)
    by Freewill on Wed Jun 06, 2007 at 04:28:42 PM EST
    And worst of all, she didn't remember that Fitz has cross-examined her before.

    Classic technique! Ironic and totally in step with this current administration's way to conduct business! Keeping up with their "it's alright that we did this because Clinton did something similar in the past defense", what better to demonstrate to the world than a "Memory Expert" who can't remember! The logic of this administration is wrapped up in this one little argument and they need the world to believe that these sort of "Memory problems" exists within everyone, even the Memory Problem experts.

    Thanks Carolyn, I can't stop laughing! Life is truly stranger than fiction!


    The bottom line (none / 0) (#3)
    by Deconstructionist on Wed Jun 06, 2007 at 07:25:48 AM EST
    is that Walton would have to make a finding that there is a substantial chance HE WAS WRONG and that Libby will get a new trial because of his mistake. On an issue raised, extensively briefed and argued pre-trial that would seem very unlikely. Usually one would have a much better chance where a difficult issue arose during trial and the judge had to make a less considered judgment.


    Release while on Appeal (none / 0) (#5)
    by lindalawyer on Wed Jun 06, 2007 at 08:36:26 AM EST
    I agree that a) its not only a difficult standard, particularly if its the same trial judge who made the original ruling and b) that is more likely to be granted if the trial court judge was originally somewhat ambivalent.
    The real question is, statistically, how often are defendants granted release while the case is on appeal?

    I would assume its a relatively small number, and predoiminantly in the area of white collar crime, or the Court never really liked the case to begin with------

    The statistics would be good to know.


    Beyond (none / 0) (#10)
    by Deconstructionist on Thu Jun 07, 2007 at 08:13:49 AM EST
     the percentage being quite low, I don't know the stats. The place to look for them if you have the time and inclination is the website of the administrative office of the United States Courts. It's not the most user-friendly site but it has stats on most everything to do with federal courts.

    U.S. Courts


    Appeal Without Merit (none / 0) (#11)
    by lamanatee on Tue Jun 12, 2007 at 01:44:20 PM EST
    The jury found Scooter lied under oath.  The evidence against him was overwhelming.  A memory expert wouldn't change this result.  Nor would "national security" testimony from reluctant witness Cheney?

    Judge Walton should send Scooter to the slammer forthwith.  Bush will pardon him if he does.  GWB:"He may be a liar, but he's my liar."