Unfortunately, as is usually the case with Libby coverage, it’s all passion and no substance.
To read what’s being reported, one would think: “It’s just a simple matter of being reasonable. Scooter has a right to appeal. And if he wins the appeal, he might not have to do any time. So why not just hold the detention off until the appeal is decided in a year or so.”
Sounds totally reasonable. And it’s also totally wrong.
With lots of support from conservatives, Congress several years ago was determined to make sure convicted felons were taken off the street. (Based on similar concerns that weak liberal judges were not cracking down hard enough on crooks, law-and-order conservatives similarly supported the very same draconian sentencing guidelines that resulted in Libby’s 30-month sentence.) Basically, congress — with broad public support — has removed judicial discretion because we no longer trust judges to be judges.
I hate this new system (which came into being in 1984 and has gotten worse since). Yes, judges occasionally make outrageous rulings (those are the small percentage of rulings we hear about). But, most of the time, left to their own judgment, they act pretty reasonably. Our statutes, however, no longer leave them to their own judgment. We’re noticing that today — although we are blaming Walton rather than the statutes; and, if we were honest with ourselves, we know we’d be furious if we learned that a judge imperiously ignored the controlling statute in a typical case not involving someone we know and like.
Whether a convicted defendant is entitled to bail pending appeal is controlled by Section 3143 of Title 18, U.S. Code. The statute contains a clear presumption that a convicted defendant who has received a jail sentence will be incarcerated pending appeal (“the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal … be detained”) (emphasis added). The presumption in favor of incarceration may be overcome, as relevant in this case, only if the judge finds that “the appeal … raises a substantial question of law or fact likely to result in (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) [a reduced sentence that would amount to less than the time it will take to prosecute the appeal]“ (emphasis added).
Applying that statute, Judge Walton was required to deny bail pending appeal unless he thought Scooter’s appeal was likely to succeed. But, of course, if he thought there had been an error grievous enough to warrant reversal, he wouldn’t have sentenced Scooter in the first place — he’d have set aside the jury verdict on his own and either acquitted him or ordered a new trial.
Today’s ruling was absolutely to be expected. The judge was not going to make a ruling implicitly suggesting that the trial over which he presided was error-ridden.
The interesting part starts now. Now that Judge Walton has officially entered his judgment of conviction (which technically happens when sentence is imposed) jurisdiction will transfer to the U.S. Court of Appeals for the Seventh Circuit. Thus, in very short order, Libby will file an expedited appeal challenging the Judge Walton’s detention order on the ground that there are appellate issues on which he is likely to succeed. If he wins, it gets interesting because the appellate court would be signalling that it perceives some problem with the trial or sentence. If he loses, that will mean the denial of bail was no big deal because Libby’s appeal is virtually certain to fail anyway.
That’s where we’re at. It’s not about Judge Walton being a reasonable or unreasonable guy. It’s about what the law says. I don’t like the law. I doubt Scooter’s appeal will go anyplace, but I think the Republic would be just fine if he could avoid jail until his appeals are exhausted. But that’s not the way our system works anymore. I think it was better when we used to let judges be judges.