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June 2, 2007

The best sentencing defense money can buy...?

I have now had the opportunity to read closely the sentencing filings of Lewis "Scooter" Libby's defense team (which can be accessed here and here), and I was generally impressed.  Though more could and probably should have been made of certain 3353(a) sentencing factors (see below), the filings built a solid case for sentencing Libby below the guideline range of 15-21 months recommended by the probation office's presentence report.  (Recall that, as discussed here, Fitzgerald's prosecution team runs the guideline numbers differently, arriving at a guideline sentencing range of 30-37 months.)

Still, were I in Scooter's shoes, I would be wondering about a few matters as my June 5 sentencing swiftly approaches:

1.  Why didn't the defense seek to follow Judge Posner's recent sentencing advice by providing "credible empirical evidence" for a probation sentence in order to avoid being at "the mercy of the instincts and intuitions of the sentencing judge"?

2.  Why did AG Gonzales decide to again advocate a mandatory minimum guideline system just days before one of the  highest-profile post-Booker sentencings in many months?

3.  In light of the significant parallels (discussed here and here) between Libby's situation and the case against Victor Rita, whose sentence is still pending before the Supreme Court, wouldn't the defense team have been wise to seek a delay in the sentencing in the hope that SCOTUS might declare a within-guideline sentence for Rita unreasonable?

Some recent related Libby sentencing posts:

June 2, 2007 at 03:10 PM | Permalink


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