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June 10, 2007

More telling Libby litigation revelations

TalkLeft here provides more great post-game coverage of the Lewis Libby sentencing, including this order from Judge Reggie Walton (thanks to How Appealing) granting permission for law professors to file amicus brief in support of Libby's motion for bail pending appeal.   A footnote in the order give Judge Walton the great last word on this week's sentencing realities.

UPDATE:  Here is the full text of Walton's footnote, which has justifably garnered much attention:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant.  The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse.  The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

MORE:  Eugene Volokh wonders in this long post "What Exactly Is Judge Walton's Beef Here?".  Though Eugene makes some sound points, his critical commentary fails to appreciate fully the litigation realities that Judge Walton experiences in typical criminal cases.  Unlike in Libby's case, where so many lawyers (and non-lawyers) are working extraordinarily hard to ensure Libby receives the best possible defense, most criminal defendants must make due with the best efforts of a single overworked and underpaid public defender.  Because of these realities, many important criminal justice issues necessarily are "under-litigated."  The point of Judge Walton's footnote, I believe, is to call attention to the reality that most rich and powerful criminal defendants receive so much help and support, while many poor and powerless defendants barely receive constitutionally adequate assistance. 

June 10, 2007 at 09:20 AM | Permalink


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Judge Walton makes the very accurate observation that these academics (not including you) found time to expeditiously come to the aid of a the power elite, but he hasn't seen any similar expeditious interest by them on behalf of the other defendants coming before him, the poor and unempowered. Point should be well taken. Now, maybe if they gave their pro bono services on an issue that is more meaningful to the mass of those charged with crimes .... I guess then those academics might be you.

Posted by: PMR | Jun 10, 2007 9:41:39 AM

Walton was so on point (in the fn) it hurts.

Posted by: S.cotus | Jun 10, 2007 12:44:28 PM

Walton's FN is unseemly. He has no idea what other projects have been undertaken by those academics.

Posted by: federalist | Jun 10, 2007 4:42:12 PM

Outstanding. And federalist, if the academics are doing lots of charity or pro bono work already, then they don't have anything to feel bad about.

Posted by: Anon | Jun 10, 2007 5:10:22 PM

I agree that the footnote is unseemly. I don't understand the judge's point. Because this judge hasn't received an amicus brief from these professors, he has a right to publicly embarrass them? Why am I not surprised that this is a “law and order” Bush II appointee.

Posted by: Elson | Jun 10, 2007 5:17:14 PM

Walton's an ass. If district courts would just start following the damn Sixth Amendment (i.e., sticking to the Guidelines range indicated the *jury found facts*), these types of "shows of support" would be almost completely unnecessary in criminal sentence.

Posted by: Aaron | Jun 10, 2007 5:35:49 PM

EDIT: that last post should read "by the *jury found facts*"

Posted by: Aaron | Jun 10, 2007 5:37:07 PM

Aaron, But the Courts of Appeal have held, time and time again, the jury-found facts are not necessary. However, I am not sure if this would have anything to do with the issue they wanted to opine on: bail pending appeal.

Some of these academics have a fairly good record for helping out poor (or unfortunate) people that are facing time in jail. Many don’t. The ones (i.e. Barnett) that lend a hand, don’t have to feel bad.

Posted by: S.cotus | Jun 10, 2007 7:18:52 PM


My point is that it is the Courts of Appeals -- trying desperately to hang on to the power to radically effect the length of criminal sentences via fact-finding -- that are to blame for this entire sentencing mess, where academics, mothers, former employers, Rudy Guliani, and random bloggers are trying to explain how much weight a court should give someone's "lifetime of public service" in determining whether they should be sentenced to five years or rather probation.

Posted by: Aaron | Jun 10, 2007 9:03:48 PM

The VC has some good posts on this.

Posted by: | Jun 10, 2007 9:15:00 PM

Aaron, In that case, I agree. Courts of Appeal are to blame for this mess, and their constant drone that Booker doesn’t change the prior jurisprudence on this issue.

Quite frankly, Libby looks like just about any other white collar criminal. Setting aside the actual crime he committed, his lifetime of “public service” looks pretty much like the lives of any large lawfirm partner that I know. His “government service” is pretty much political, and I don’t really consider that to be selfless.

But, maybe this all goes to show that rich people, even ones that commit crimes, are of greater good to society than poor people that commit crimes. Scooter Libby was able to help people effectively because he was a lawyer of some means, and “society” (in the form of Rudy and some random bloggers) are attracted to this. There is nothing that someone that isn’t a lawyer and doesn’t have money could do that was impress Rudy on those bloggers, so they are silent when people are sent to jail.

Perhaps, if Rudy was pipe up every time some single mother is cited for missing a court date, or someone lacking a HS diploma is put in jail (or denied a low bail), despite the fact that he has helped people in the past (in the small way that their kind can) it would make sense. Perhaps Bork will take it upon himself to, say, represent 15 or 20 people in New York City that couldn’t make bail after being arrested.

Posted by: S.cotus | Jun 10, 2007 9:29:11 PM

I think Justice Ginsburg is to blame for all of this.

Posted by: | Jun 10, 2007 9:55:19 PM

Only those who think that giving to the rich and powerful is as worthy as giving to the poor and powerless can fail to see the point Walton was making. See Matthew 19:21 (and note, the speaker did not say "sell what you have, and give to the rich")

Posted by: David in NY | Jun 11, 2007 11:22:49 AM

David, judges aren't supposed to make points in such a manner. It's undignified, and the people targeted by his aside have no real means of responding. I am sure that if a federal judge tossed an aside like this with respect to lawyers falling all over themselves to help enemies of America (i.e., terrorists being held by the US military), the howls of outrage would be deafening.

Posted by: federalist | Jun 11, 2007 12:17:51 PM

But you do understand his point, don't you, federalist? I don't think that upholding our basic principles of morality, of thinking that privileged people ought to give to the poor, not the powerful, is the least bit "undignified." In fact, it is a traditional view of a lawyer's duties. But as applied to professors whoring after the politically connected, I think the comment was both proper and well deserved. But I suppose it stings too much for you to appreciate it.

(Those who represent the alleged, but never convicted, "enemies of America" at Guantanamo, in contrast, are doing their moral duty in giving their services to those who are without resources and powerless, far from their homelands.)

Posted by: David in NY | Jun 11, 2007 2:41:21 PM

The real problem, as I see it, is that this footnote was in response to a motion that was 4 paragraphs in length, and simply indicated that the professors thought it would be helpful for the court to consider the constitutionality of the independent counsel. Walton was way over-the-top with his response, irrespective of whether or not the amici have filed briefs for other "run of the mill" criminals.

Posted by: Steve | Jun 11, 2007 2:44:12 PM

David, I am sure that you would have taken the position that German POWs held here in America were alleged enemies of America too, after all, they weren't convicted of anything, now were they?

Posted by: federalist | Jun 12, 2007 12:00:01 AM

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