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February 14, 2007

Could Libby's decision not to testify now result in an obstruction-of-justice enhancement?

After seeing this AP article about today's developments in the trial of Lewis Libby, I can't help spotting an interesting potential sentencing issue.  Here is the background:

Defense attorneys misled the court into thinking that former White House aide I. Lewis "Scooter" Libby would testify in his CIA leak trial, a federal judge said Wednesday, as he blocked Libby from using some classified evidence in the case....

When defense attorneys abruptly announced Wednesday that Libby no longer planned to testify, ... Fitzgerald said that jurors hearing the case therefore should not be given a prewritten statement about Libby's briefings.  US District Judge Reggie Walton agreed, and reversed an earlier ruling that the evidence could be admitted. "My absolute understanding was that Mr. Libby was going to testify," the judge said. "My ruling was based on the fact that he was going to testify."

Walton appeared upset and seemed to stake his reputation on the decision.  Libby's attorneys indicated they would appeal the decision if Libby is convicted.  "If that's what the Supreme Court is going to say (in any ruling on an appeal), they might as well say the government's not entitled to a fair trial and the defendant is," Walton said. "I think both sides are entitled to a fair trial. If I get reversed on that, maybe I need to hang up my spurs."

Beyond the general worry about upseting the judge who'll sentence after any conviction, the Libby defense team perhaps also should ponder whether the sentencing enhancement of USSG § 3C1.1 ("Obstructing or Impeding the Administration of Justice") might now be applicable if Judge Walton now believes he was willfully misled.  The great irony here, of course, is that the guidelines' obstruction enhancement is often applied when a federal defendant decided to testify, asserts innocence, but still gets convicted.  Here, it seems, Libby maybe could be stung with an obstruction enhancement for the way he decided not to testify.

February 14, 2007 at 03:42 PM | Permalink


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Tracked on Feb 15, 2007 5:16:33 AM


Call me crazy, but I think the Fifth Amendment is more important than this judge's ego.

Posted by: rothmatisseko | Feb 14, 2007 5:00:32 PM

I second the motion . . . .

Posted by: federalist | Feb 14, 2007 5:06:41 PM

I agree, but tell that the the Sentencing Commission, which in twenty years has shown little concern for the Fifth Amendment (or any other).

Posted by: | Feb 14, 2007 5:38:34 PM

A criminal defendant is entitled to a fair trial. The government is not. The government has no due process rights. We the People have rights from the government; it is a one way street. It would be nice if the SCOTUS came out and unequivocally DID say "the government's not entitled to a fair trial and the defendant is." That's how it should work. The only caveat is that a neither the defendant nor the government's witnesses should be permitted to lie under oath. A prohibition on perjury should apply across the board.

Posted by: Bruce | Feb 14, 2007 6:56:21 PM

Bruce, such an attitude sounds great, but the bottom line is that society also has rights in the criminal justice system, and oversolicitousness to criminal defendants can have a nasty price in blood.

Posted by: | Feb 14, 2007 8:13:10 PM

Of course the government has some trial rights. But ultimately, only the defendant has a constitutional right to a fair trial.

That said, I think the judge's ruling excluding the "script" is dead-on right. It's common sense. The point of the script was to all the jury to hear about other things Libby had on his mind at the time so Libby wouldn't have to testify about them. But the ruling was entirely premised on Libby actually testifying. No testimony, no script. Seems pretty simple.

Posted by: A | Feb 14, 2007 10:22:43 PM

The Government absolutely has a right to a fair trial otherwise known as due process. Where do you think the prosecutor's right to cross-examine the defendant (after he/she testifies) comes from? Plus in California the People's right to due process is in the Constitution. Art. I., Sec. 29.

Posted by: David | Feb 15, 2007 1:32:16 AM

Professor Berman, Do you have any statistics that prove your absurd point that obstruction of justice is used in cases that the defendant claims innocence? I have been unable to find such a cite, or is this just your "feeling?"

Posted by: Kelly Nance | Feb 15, 2007 7:36:49 AM

No, it's not an obstruction for guideline purposes. It was a tactical decision by the attorneys (and defendant) after hearing and evaluating the government case -- that's when the testify-or-not decision is made. Can the judge really punish a defendant for exercising his constitutional right to silence? (I know, judges do punish defendants for exercising their constitutional right to trial.) The judge should have conditioned his ruling on the admissibility of the statement on the defendant's testifying, if that was the basis for his ruling or delayed it awaiting the defendant's testimony.

Posted by: Lawrence Goldman | Feb 15, 2007 7:38:27 AM

Kelly Nance - see e.g. http://www.kscourts.org/CA10/cases/2006/01/04-2199.htm:

"Mr. Begaye also challenges the court's imposition of a two-level enhancement for obstruction of justice under guideline section 3C1.1, alleging the enhancement violated his Fifth Amendment right to testify on his own behalf at trial. ..."[A] defendant's right to testify does not include a right to commit perjury," United States v. Dunnigan, 507 U.S. 87, 96 (1993), but "[t]he mere fact that a defendant testifies to his or her innocence and is later found guilty by the jury does not automatically warrant a finding of perjury." United States v. Markum, 4 F.3d 891, 897 (10th Cir. 1993) (citation omitted). "An automatic finding of untruthfulness, based on the verdict alone, would impinge upon the constitutional right to testify on one's own behalf." Id. Hence, in order to substantiate an obstruction of justice enhancement, there must be evidence in the record to support the district court's determination. United States v. Chavez, 229 F.3d 946, 955 (10th Cir. 2000). This includes "a specific finding independent of the jury verdict [that] . . . the defendant committed perjury," and the "particular testimony the district court found to be untrue." Markum, 4 F.3d at 898. ... Here, the district court stated: ... it's my finding that the defendant, Andrew Begaye, obstructed justice, specifically, by testifying falsely at trial that he was not around when drug sales took place and that he had nothing to do with drugs and it was not he who sold the drugs to agents. ...Ample evidence exists in the record to support the district court's determination."

Posted by: anon | Feb 15, 2007 1:23:17 PM

Anon's examples all involve defendants who testified. I am not aware of any example where a defendant is found to have obstructed justice by not testifying.

Posted by: Marc Shepherd | Feb 16, 2007 8:19:19 AM

Libby paid for and got bad legal advice. This was the same as happened to Martha Stewart. Defense counsel foolishly advises proffering, knowing, or should have known that Libby was too big a fish for the feds to ignore, and then he gets banged not for disclosing Plame as a CIA operative, but for lying. God, I have seen this so many times. Proffer the little guys, but don't bring the main guys for a proffer. You gain nothing, and risk everything. Libby needed to give up Rove or the Veep, if he could not, what use was he to Fitzgerald? [An over rated federal prosecutor, who made his career prosecuting terrorists in NY. BFD] Since Libby's case is about lying, the best witness is himself; not putting him on the witness stand leaves all of the govt witnesses who contradicted him as the testimony the jury heard, notwithstanding any supposedly devastating cross they may have endured. And, remember, these were witnesses who America trusts - newscasters, etc., who are on TV based upon the public's perception of them as trustworthy. Libby will likely be convicted. And, your suggestion of an enhancement for NOT testifying is possible, but I cannot see it. Certainly if he had testified, then Judge Walton may well have enhanced for obstruction, but it seems to me, his only chance at avoiding a conviction was, in fact, testifying. It is not so much good lawyering that wins cases, but, rather, bad lawyering that loses cases.

Posted by: Bernie Kleinman | Feb 17, 2007 10:51:38 AM

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