Team Libby Adds Another Lawyer
Via Marcy Wheeler at Next Hurrah, Scooter Libby has added another lawyer to his defense team, Greg Poe of Robbins, Russell. Laurence Robbins joined earlier to assist with sentencing and appeal issues.
Marcy thinks Poe has been added to try and get Libby out of serving his two year supervised release term. I suspect she's right, although I would expect him to stay on for the duration of Libby's appeal.
I'm going to switch hats again here, and go from bashing Libby's commutation (for which I blame Bush not Libby) to praising defense lawyers such as Libby's latest addition who in the ordinary course of their practice challenge mandatory minimums and the unfairness of the Sentencing Guidelines.
Poe co-authored (along with frequent TL commenter Peter Goldberger) the Supreme Court amicus brief (pdf) for Families Against Mandatory Minimums ( FAMM)in the originally combined Claiborne and Victor Rita cases.
The brief addresses critical issues that arose after the Supreme Court decision in Booker (which made the guidelines advisory rather than mandatory) including this one, as yet unresolved: Does the sentencing court have to regard the guideline sentence as presumptively reasonable? Can it only deviate from the guidelines if it finds extraordinary reasons for doing so?
The answer should be, as the brief argues, that under 3553(a), the sentence imposed must be no harsher than is required to achieve the purposes of punishment. Where there is conflict between that principle and the guidelines, the guidelines should give way.
Since Booker, the Court must consider the 3553(a) factors, only the fourth of which is the guideline range in arriving at a sentence. The factors are:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed- (A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; [C] to protect the public from further crimes of the defendant; and (D)to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established . . . by the
Sentencing Commission . . .;
(5) any pertinent policy statement issued by the Sentencing Commission . . .;
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense
In requiring the Court to consider these factors since Booker, matters the Guidelines ordinarily deem irrelevant to sentencing, such as the defendant’s age, education and vocational skills, mental and emotional conditions, physical condition, employment record, family ties and responsibilities, and charitable service, are now valid considerations for a Court in imposing a sentence.
There is a conflict between the mandate to consider all of the 3553(a) factors, especially the first one, and any presumptive or even primary reliance on the Guidelines. I believe the rule should be that while courts must consider the guideline sentence, it does not owe that sentence any deference.
Instead, what's happened since Booker is that most courts have presumed the guideline sentence to be reasonable, requiring some strong reason to go below them. But the law doesn't tell the sentencing judge to impose any sentence which seems "reasonable." It tells the judge to impose a sentence which is "not greater than necessary," and then tells the appeals court to uphold that judgment if the decision of the sentencing judge was "reasonable."
The Supreme Court agreed to decide issues related to the presumption of reasonableness of guideline and below guideline sentences in two consolidated cases, Claiborne and Rita. The Clairborne appeal asked whether, on appeal, a sentence below the Guideline range is presumed to be reasonable, while the Rita case asked whether a sentence within a Guideline range is presumed to be reasonable. But Claiborne died while the case was pending, so his appeal had to be dismissed and that issue got dropped for the time being.
In deciding Rita, the Court held a presumption of reasonableness attaches on appeal to a sentence within the guideline range.
Back to Libby and his new addition to the defense team. I don't care whether Libby has to do any time on supervised release. I have no interest in extracting a pound of flesh from him.
The outrage in Libby's case is that in commuting Libby's prison sentence to zero, Bush said Judge Walton both miscalculated the guidelines and then unreasonably refused to depart or deviate from them and give Libby probation. He substituted his version of Libby's sentencing guideline range and his view of factors warranting a deviation from the guideline range for the Judge's considered view. And, he didn't wait for a court of appeals' ruling on whether the judge was correct. He pre-empted the appellate review so that his pal wouldn't spend a night in jail.
Most hypocritically of all, while Bush criticized Libby's Judge for not going below the guidelines as calculated by Bush and the probation department, he is asking Congress to pass legislation that would make every federal crime subject to a mandatory minimum sentence -- which in turn would prevent sentencing judges from exercising discretion based on the same factors Bush applied to Libby in deciding to commute his sentence.
I'm glad Libby has a strong criminal defense lawyer and critic of the policy of sentencing by mathematical formula on his side. I'm glad he has a defender who argues a Judge should have discretion in all cases to impose a sentence based equally or more upon his or her assessment of an offender's personal history and characteristics and the individual circumstances of the crime than upon a rigid mathematical formula.
Any sentencing inroads Team Libby makes in court will become case law that can be used as precedent to benefit other defendants. That's much more important than what happens to Scooter Libby.
We can only get sentencing reform for all defendants through judicial decisions and legislative reform. Bush's premature, hypocritical act helped no one but Libby. Team Libby still has the opportunity, in helping Libby, to help other defendants as well, even if it's only to limit the application of supervised release.
So I'm not going to criticize Team Libby for adding more firepower to help Libby. I'm going to praise them, particularly if in doing so, they get a ruling that will benefit other defendants.
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