Scooter Libby Files Motion for Appeal Bond, Lists Grounds

Team Libby today filed its Motion for Appeal Bond, listing the grounds upon which they believe the Court erred before and during trial. I've uploaded the motion(pdf) and attached exhibit (pdf).

I think they make some excellent arguments, particularly about the standard. It's not necessary that Judge Walton believe he was wrong, or that reversal is probable, only that the issue presents a close question or one that could have been decided the other way.

The grounds Libby raises:


1. The Special Counsel's exercise of authority violated the Constitution and laws.
2. The memory defense, including failure to allow a memory expert to testify. (this is what the exhibit pertains to, the juror interview after the verdict about questions the jury had on memory.)
3. The CIPA substitutions
4. Exclusion of the Government Statement Admitting Relevant Facts
5. Exclusion of the CIA briefer's testimony
6. Refusal to allow defense to call Andrea Mitchell

Usually the defendant puts their best issue first, so I suspect they think the statutory authority issue is their best bet. I don't. I like the memory expert issue.

Hearing is on June 14 at 11:30 a.m. (moved from 1:30 p.m.)

Dan Froomkin has a round-up of newspaper editorials opposing a pardon -- there's a lot of them.

If you haven't read it yet, check out my op-ed in today's Washington Examiner, Rough Times Ahead for Scooter Libby.

Update: Thanks to Deconstructionist in the comments for pointing out this D.C. case law on the standard:

(1) Does the appeal raise a substantial question? (2) If so, would the resolution of that question in the defendant's favor be likely to lead to reversal? ....A substantial question is “a ‘close’ question or one that very well could be decided the other way.”
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    Maybe he doesn't deserve it... (5.00 / 1) (#2)
    by Aaron on Thu Jun 07, 2007 at 04:31:49 PM EST
    ... or maybe he does, either way I'd like to see Scooter Libby thrown into the worst federal hellhole in this country, cast down into the stygian pits with the sodomites, as a warning to all those who would become accomplices in treason and the subversion of the Constitution.   Make an example of this man who placed his loyalty to George Bush ahead of his loyalty to that of the American people, a man who chose to facilitate a renegade administration bent on deceiving us all into supporting a criminal war that has led to the deaths thousands of Americans and hundreds of thousands of innocent Iraqi women and children.  When you consider the context of his crimes, and the crimes of this administration, such punishment is well-deserved.

    Perhaps after a few months in the bowels of the American penal system, Scooter would be willing to come clean and give up Dick Cheney and George W. Bush as the true architects of the much deeper conspiracy, that we all know happened.  It's time to play hardball with these people, these traitors who would destroy democracy and turn the United States of America into a petty dictatorship a fiefdom where the American people are nothing but serfs to be used and abused like servants or slaves, at the whim of these would-be kings and their prattling lap dogs disguised as our representatives.

    release pending appeal chances (5.00 / 1) (#6)
    by Beldar on Thu Jun 07, 2007 at 06:03:37 PM EST
    Ms. Merritt, thanks very much for posting the Libby motion and its attachment, and for your timely and insightfull commentary on this case throughout the trial.

    I've been among the minority of conservative legal pundits who've declined to decry the Fitzgerald prosecution as illegitimate or to trumpet Libby's obvious innocence.  I continue to think it's more probable than not that his conviction will eventually be affirmed by the DC Circuit, and cert denied the the SCOTUS.

    But I do think he should be released (on a continuation of his current oral recognizance bond) pending appeal.

    There is, and can be, no dispute about any of the section 3143(b) factors except whether Libby's defense team can raise a "substantial question of law or fact."  That is, he's not a flight risk and he's not dangerous. There is no reason to believe he's going to appeal only to delay something inevitable. His appellate points, if valid, would certainly result either in his conviction being overturn and a new trial granted, or his sentence being changed, or possibly the case being dismissed outright.

    Libby's motion reads like it was thrown together in a frenzied day, and that's probably true. But I agree with you completely that it makes some very good points up front, as it should, about the "substantial question" standard.

    I also agree with commenter Deconstructionist (#3 above) that they were wise to lead off with their "illegitimate appointment" point, and that, in general, they ought to emphasize appellate points that depend on issues of law rather than of fact.

    I think they scored points with the observation that many of the pretrial and evidentiary calls during trial were close enough questions to prompt Judge Walton to write — and direct publication in Fed. Supp. 2d of — long memorandum opinions. That's inconsistent with the meme we're certain to hear next Tuesday from Team Fitzgerald, which will be that none of these things are close questions and all of Judge Walton's rulings are likely to be summarily affirmed by the DC Circuit.

    I'm less impressed than you are with the memory expert argument. The transcript I read of the limited cross-examination Fitz did of her, outside the jury's presence, was pretty devastating; arguably Judge Walton did them a favor by excluding her testimony, and I'm far from persuaded that anything she could have said was a legitimate subject for expert testimony anyway (rather than being within the ken of an average juror using common sense). In any event, that ruling will be judged on an abuse-of-discretion standard, and an appellate court would have to find that it not only was an abuse of discretion, but that it probably affected the outcome of the case.  That's almost a sure loser, in terms of persuading Judge Walton that there's a "substantial question," and neither is it likely to be a basis for the DC Circuit to reverse him on an expedited basis on the release pending appeal issue.

    One thing that I think is important, however, that I haven't seen mentioned here is that Fitzgerald has to essentially run the table at the hearing next Thursday.  He has to show that not a single one of Libby's potential appeal points, factual or legal, reaches the "substantial question" level. In other words, given that all the other requirements of section 3143(b) are satisfied, even a single "substantial question" by itself should justify release pending appeal, even if all of the other appeal points are obviously bogus.

    Fitzgerald might well be able to do that; from what I've read of Judge Walton, he's not a man who's particularly prone to second-guessing himself, and he has indeed already rejected all of these arguments from the Libby team before on their merits.  But I think there would be a decent chance — maybe not a probability, but certainly a serious possibility — that the DC Circuit might reverse him if he denies release pending appeal.

    i waited until i had digested the filing. . . (5.00 / 1) (#9)
    by the rainnn on Thu Jun 07, 2007 at 11:02:24 PM EST
    . . .to wander over here and
    take a look at ms. merritt's
    perspective -- and those of all
    the other wise and learned heads
    here assembled. . . and, perhaps
    a little-too-predictably, i come
    out on the other side of most here. . .

    [and, like beldar, i am singularly
    unimpressed by the memory-expert issue.]

    but first -- i agree team libby led with
    their strongest arguments -- i just don't
    think they amount to much -- even
    assuming a silberman-panel to conduct
    the de novo review. . .

    team libby constructs their grounds
    for assigning error on the authority
    of special prosecutor question by
    ignoring the plain meaning of the face
    of the statute, in favor of a brigadoon-
    like misty-fantasy-land analysis
    in one dissenting opinion in morrison
    (or the "tension" it shares, with edmonds).

    the author of that dissent?  one antonin
    .  certainly, various judges could
    reasonably come out all over the map on
    this question, if one starts the analysis
    of the law, by accepting the dissent in
    morrison as bed-rock, black letter law.

    unfortunately for scooter, as team fitz
    will soon make plain[er] (i borrowed
    their trial memos, on this topic, for
    easy short-hand reference), one cannot
    start from scalia's premises

    no -- one must start with the statute.

    and, the statute is plain.  and, the statute
    is clear. and, the statute has been held by
    a majority of the supremes to be constitutional.

    fitz was delegated appropriate,
    but not unlimited, authority by james comey(!),
    pursuant to the independent/special counsel
    provisions of applicable federal law.

    and so -- here, effectively endeth team
    libby's realistic hopes for scooter's fredom,
    at least while the appeals progress. . .

    sorry scooter.  pack you monogramed, pin-point,
    300-thread-count-cotton-oxford-button-downs for
    camp fed -- its gonna be your home, by august 1,
    if not sooner

    but what do i know?



    what you miss (5.00 / 1) (#10)
    by Jeralyn on Fri Jun 08, 2007 at 12:12:56 AM EST
    is that Elizabeth Loftus, who testified at the hearing to admit expert testimony, was not going to be Libby's memory expert at trial. She was called at the pre-trial hearing to support why another expert should be allowed to testify at trial. Why Libby's lawyers did the pretrial hearing that way, I have no idea. But it had nothing to do with excluding Loftus' testimony at trial because she was never intended to be the trial memory expert witness.

    Disclosure: Elizabeth is my friend and I believe, one of the two foremost memory experts in the country (Gary Wells being the other, and the Judge in the McVeigh trial allowed me to retain both of them so I know them both well. In addition, I served on the National Institute of Justice (the research arm of the DOJ)'s eyewitness task force on eyewitness evidence, that wrote the first Guide to Eyewitness Evidence, chaired by Gary Wells, so the field of research on psychological principles of memory is pretty engrained in me).



    i do trust your expertise, jeralyn. . . (4.00 / 1) (#12)
    by the rainnn on Fri Jun 08, 2007 at 08:39:36 AM EST
    . . .and so we are clear -- i did
    not mean in any way, to demean the
    idea of memory expertise generally,
    i only meant to say that team libby
    has done an awful job of preserving
    this issue for their appeal. . .

    most if isn't their fault, however.

    the memory issue, in u.s. v. libby, is
    not about eyewitness IDs/failing memory. . .

    the "issue" -- such as it is -- in libby,
    is whether a judge should have allowed
    scooter to present evidence about how
    his "busy life" adversely affected his memory. . .

    well -- that's great -- but, in a "bait and
    " tactic, team libby decided, very
    late in the trial, NOT to put their client on the stand.

    so -- whatever her testimony about memory
    might have been -- there would be no way
    for team fitz to probe its relevance to
    scooter libby's "facts" -- HIS memory -- be-
    cause he decided against testifying.  that
    is his right, but it did limit his strands
    of admissable defense evidence -- this
    being one of those strands. . .

    that said, i am generally a believer
    in memory-experts -- just not here, on
    this appeal. . .

    just my $0.02 -- and you run a great
    site here, jeralyn -- i hope you'll
    find time (this weekend) to enjoy
    some summer in the sawatch range -- up,
    over independence pass, and back. . .

    the twin lakes, and twin peaks, are
    among my favorite places on earth. . .  
    as i grew up, not more than a mountain-
    bike's ride away, from there. . .  


    I think they make a good argument (none / 0) (#1)
    by Deconstructionist on Thu Jun 07, 2007 at 04:24:16 PM EST
      but a differen judge in the district recently found a very similar argument to the exclusion of the moemory expert unpersuausive.


    I think (none / 0) (#3)
    by Deconstructionist on Thu Jun 07, 2007 at 05:00:42 PM EST
    that the reaon the defense raises the constitutionality of the SP appoinment mandate first is that is an issue of law reviewed de novo on appeal with no deference given the district court's ruling, and the memory expert exclusion is an evidentiary issue where the district court's ruling is given due deference and reviewed only for abuse of the district court's (very broad) discretion.

       I also think that in actual practice, because judges are human beings, you always face a very tough row to hoe asking for appeal bond. The semantic difference between finding the substantial question likely to result in reversal, etc.  and  a substantial question  that would result in reversal, etc. if a favorable appellate ruling is made is important but you are still asking the judge to second guess himself.

       Personally, in the absence of danger to the community or risk of flight, I think bond should be granted pending appeal. now, this case with the spectre of pardon in the background is a little different. Usually, a defendant will only escape the eventual closing of the door if he loses on appeal by "cheating the hangman" and dying.

       Here from the defense perspective delay is a bigger issue because a long enough delay might push it past 11/08 (or at least make his actual incarceration prior to then short). Despite that it would be improper for Walton or the DCCCA to consider that as, legally,  it is only a speculative possibility no matter how strongly many people think it will happen.

    great points, Decon (none / 0) (#4)
    by scribe on Thu Jun 07, 2007 at 05:31:10 PM EST
    The standard of review is #1 on the list of issues when considering an appeal.  I'm of the school that looks for ways to re-cast whatever arguments I plan to make to accommodate the standard of review.  If I can make my argument over a particular point into one which is heard on a de novo standard, that's great.  Similarly, if I can re-cast my opponent's into one which is only on an abuse of discretion standard, so much the better.

    That said, though, I think we all have to remember that "judges read election results, too."  Or, in this case, that they (and particularly Walton) know there's an organized astroturf campaign for Scooter's pardon, with the pardon likely to be already a done deal.  There was a brief note in the New York Post about a speech by Deadeye to a crowd from the Hudson Institute* a little while ago, in which Deadeye was asked about the possibility of a pardon for Scooter and Deadeye (with a smile) said "you can imagine how I feel about that."  Thing is, Scooter was seated in the front row and, AFAIK, Deadeye was looking right at him when answering.  

    Given that everyone involved knows (a) the DC circuit is filled with wingnut luminaries like Silberman, Kavanaugh (one of the Starr Report writers), and all the rest who've spent years building their Rethug credentials and gutting the checks and balances, I have no doubt that Scooter will get off on the appointments issue.  I likewise have no doubt that Walton knows the fix is in.

    If I were Walton, I would have put the marshals and Bureau of Prisons on notice, after adjourning completion of the sentencing the other day, to frog-march Scooter from the completion of his sentencing hearing - he will have had about 10 more days to get his affairs in order.  

    I do, however, agree with you on the general availability of an appeal bond - though this is not the ordinary case.  

    * At the Union League Club in NYC - a nice place to get a drink, if you can get in the door. (/snark - the easiest way to get in there is to be elected President).


    Your observations (4.00 / 1) (#11)
    by Deconstructionist on Fri Jun 08, 2007 at 07:28:18 AM EST
    about the DCCA reminded me to make another observation.

      If Walton denies release, Libby can also appeal that order (or simply file a motion for bond consideration after filing the NOA on the judgment of conviction)  to the Circuit Court pusuant to FRAP 9 (b). The same statute still applies but if you get 2 favorable judges on your panel you might get a different decision.

      Back to the memory expert, I think Jeralyn is influenced  by the precedent she wishes to see established.  The trial court's role is not merely to determine if the "science" is valid and proposed expert qualified. the judge must also decide that the propsed expert testimony would be helpful to the jury in understanding the evidence or determining a fact in issue. (In a manner of speaking it must be "relevant" to the specific facts of the case.

       This was an unusual use of a memory expert because typically they are used to explain to juries the working of the memory with regard to the alleged recall of events by witnesses to an event. (e.g., the eyewitness's identification of the defendant as the perpetrator may not be reliable despite his conviction it's the guy). In that scenario the research finding that human memory is fallible, the degree of witness's certainty does not measure reliability of recollection, and the multitude of factors (including often suggestion) that can influence memory is testimony that provides a counterpoint to the common assumption that eyewitness testimny is accurate and reliable.

      Testimony that as best as I can tell boils down to "busy people might forget things"  is harder to sell as something that scientific research is helpful in explaining.



    No reason not to give him bail (none / 0) (#7)
    by txpublicdefender on Thu Jun 07, 2007 at 06:28:00 PM EST
    I think the only fair thing is to give him bail pending appeal.  I think his appeal chances are, at best, 50/50, but since he's not a flight risk, why should he have to sit in jail pending appeal?  If his conviction is overturned on a ground that prevents retrial, like I believe winning on the appointment issue would, then he will have served that time on a case the courts deemed was improper.  If his appeal is denied, he will have to serve his time anyway.  I just don't see the benefit in ordering him to prison while there are some substantial issues for appeal, even if he's not "more likely than not" to prevail.

    I think that standard should apply to everyone who is neither dangerous nor a flight risk, and not just Scooter.  It only seems fair.

    I love these legal arguments... (5.00 / 1) (#8)
    by Aaron on Thu Jun 07, 2007 at 07:25:00 PM EST
    ...that are removed from the political and practical realities of this case and its ramifications.  If he doesn't go to prison now, it's doubtful he ever will, since George W. Bush will surely pardoned him before he leaves office.

    That means that someone who has been convicted of a serious felony, will serve no time whatsoever, and that's not justice.

    It's too bad the Bush administration can't put his appeal directly into the hands of Clarence Thomas. Their man on the Supreme Court would immediately overturn the conviction before he considered or even read the appeal.