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June 5, 2007

Now we get to debate bail pending appeal (and a pardon) for Libby

This new AP article about the Lewis Libby sentencing indicates that Judge Walton has decided to take extra time and briefing on bail pending appeal for Libby:

Walton did not set a date for Libby to report to prison.  Though he saw no reason to let Libby remain free pending appeal, Walton said he would accept written arguments on the issue and rule later.

Jeralyn here at TalkLeft has this helpful report about what is to happen now:

The Probation Department has to recalculate the guidelines grouping the obstruction, perjury and false statement charge. The judge has stayed imposition of the sentence. No decision on bond pending appeal today or voluntary surrender today, but Libby goes home.  Briefs will be filed on the appeal bond issue, it will be heard a week from Thursday at 1:30.

So, Libby will surely remain free at least until Thursday, June 14.  Even if Judge Walton denies bail pending appeal, Libby likely won't be expected to surrender until the end of June (during which time Libby's team might appeal to the DC Circuit the denial of bail pending appeal). 

This timeline is significant not only because it provides a lot of time for the inevitable pardon talk to get going, but also because the Supreme Court will likely decide the Rita case in the next few weeks.  If Victor Rita's within-guideline sentence is reversed as unreasonable, I think Libby's team could have some strong new arguments on a variety of sentencing issues (which, in turn, could further support his arguments for bail pending appeal).

June 5, 2007 at 01:19 PM | Permalink


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How would Rita in any way impact his bail pending appeal motion? I can't see a scenario where his sentence would be shorter than the 12 or so months it will take the D.C. Circuit to rule on his appeal. It would be incredibly rare for a sentencing issue to justify bail pending appeal. (Actually, if anybody knows any published cases granting bail pending appeal because of a sentencing issue, I'd love to see it. I'm writing a paper about this subject.)

Posted by: Elson | Jun 5, 2007 2:11:04 PM

s not the mere fact that Libby is likely to serve out at least half of his sentence before a final disposition of his appeal from the judgment (not just the sentence) provide a basis to stay imposition of sentence pending appeal?

Could one of you appellate experts educate me on this point?

I can only comment that bail pending appeal seems fair in this case.

(Frank Quattorne was admitted to bail pending appeal on equally simularly serious charges, and won a reversal and then a no time, no admission of guilt, dismissal if he does not mess up in 18 months plea deal.

Posted by: Stephen | Jun 5, 2007 2:33:03 PM

Generally speaking, you’re entitled to bail pending appeal if you can meet three conditions. First, you have to prove you’re not a flight risk or otherwise a danger to the community. Next, you have to prove that your direct appeal will raise a “substantial question,” which has been defined by most courts, including the D.C. Circuit, as a “close question” that could go either way. Finally, you have to show that if that substantial question were decided in your favor, that you would likely be entitled to a reversal, an order for a new trial, or a reduced sentence that would likely be less than expected duration of the appeal process. (See 18 U.S.C. § 3134(b).) There are certainly additional limitations that I don’t believe are applicable here.

So even if Libby’s sentencing issue raised a close question -- a standard rarely met -- he would have to show that if his sentencing issues were decided in his favor, that it would “likely” result in a sentence of less than 12 months (which is, roughly speaking, how long a criminal appeal takes to get resolved).

Posted by: Elson | Jun 5, 2007 3:17:11 PM

Sorry -- "certainly additional" should be read as "certain additional".

Posted by: Elson | Jun 5, 2007 3:18:32 PM

Scooter should start winding up his affairs, because it appears to be highly unlikely that he'll be a free man much past the end of June.

Posted by: Marc Shepherd | Jun 5, 2007 3:38:53 PM

If someone is denied bond on appeal in the Northern District of Georgia and he wants to appeal this decision to the 11th Circuit, is there something specific he has to do? I am just a regular person trying to get some information.

Posted by: Mike | Aug 19, 2008 6:13:39 PM

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