The Corner

Scooter … Again

I don’t think there’s great need to argue with either of our Marks, both of whom, typically, make good points.

On Mark Steyn’s comment, I agree that for the sake of the institution he represents, and his own reputation, Judge Walton ought to be more judicious in what he says.  I have thought for a long time that a lot of what has been said by partisans on both sides has been intemperate, so it might seem a bit rich to call time-out in the fracas to slap Walton around for his excesses.  But he’s the judge, and he’s got a special obligation not to go there. 

The “first year law student” crack is the kind of thing exasperated judges say from time to time, and they shouldn’t.  But it’s not like Walton hasn’t given a thoughtful response, Mark. According to that WPost article, the brief you refer to — six whole pages long — was on the question whether the prosecution lacked proper authority.  That’s the same Appointments Clause issue that, as Mark Levin notes, Walton earlier issued a 31-page opinion to refute. Is it possible that the Dershowitz/Bork et al brief did not deal very thoroughly with issues the judge had already labored over at great length, and that this both annoyed the jurist (as, I can assure you, it would annoy most federal judges) and caused him to figure the real reason for the brief’s submission was to attach the names of these luminaries to Scooter’s cause, not to offer a compelling legal argument?  I imagine this could be the case … but the judge should have found a better way to say that.

On this one, Mark Levin and I are more like two ships passing in the night than engaged in a joust.  My point was that it was unrealistic, given the governing standard, to expect Judge Walton to cast doubt on the trial over which he presided. 

Until recently, judges were allowed to grant bail pending appeal if the defendant had appellate issues that were merely colorable or non-frivolous.  That’s the standard Mark seems to be arguing for, and I wish it were the law.  But it’s not.  As I said in my earlier post, to grant bail, the sentencing judge is required to find that the appeal is likely to succeed.  That’s a much higher hurdle, and one the judge who tried the case is very unlikely to find has been met. (And, to return to Mark Steyn for a second, I don’t think this shows the “majesty” of the law; I think it’s one of those times when “the law is a ass.”)  And the fact is that the vast majority of defendants are incarcerated pending appeal.  When they are not, it is generally because they can show their sentences are so short that forcing them go to jail pending appeal would make the appeal illusory (since they’d already have served their terms by the time the appeal was decided).

As I imagine Mark and I would agree, Scooter is not prejudiced by this at all. He has not been sent to jail yet, and his lawyers will now appeal the bail ruling to the Seventh Circuit.  That appellate court will not be bound at all by Judge Walton’s denial of bail.  (The question whether an appellate issue is likely to succeed is strictly a “legal question”; appellate judges only owe deference to the district judge’s rulings when they involve factual determinations — e.g., credibility of witnesses, whether the evidence was sufficient beyond-a-reasonable-doubt, etc.).  If the Seventh Circuit is convinced that an appellate issue, such as the one Mark describes, has a good shot, it will probably permit Scooter to remain free until the appeal is decided, and it won’t be deterred by Judge Walton’s contrary ruling.

On Peter’s “overwhelming” point, I respectfully think Peter is led astray by the coverage’s over-emphasis on the “foibles of memory” defense offered by Scooter’s counsel. 

In all trials, witnesses forget things and have differing recollections about events.  The Libby case, however, was specifically about lying, so memory was highlighted by the defense in an unusual way.  The defense wanted the jury to believe that Scooter hadn’t lied to agents and the grand jury; he simply hadn’t recalled things accurately.  Consequently, every time there was a trivial incident of forgetfulness or divergent recollection from a witness, Scooter’s lawyers pounced on it — as if to say, “See, everyone screws up from time to time — and that’s all Scooter did here.”  The media, understandably, gave this principal defense theme respectful coverage — leading many people to think that Scooter was accused of the same unremarkable foibles of memory as the witnesses were daily exhibiting.  (A good lesson for all you defense lawyers out there.  The best defense lawyers don’t do a blunderbuss attack on the government’s whole case; they pick out one or two themes and hammer them incessantly.  This is a much better approach to sowing doubt … even if it didn’t ultimately work with the jury in this case.)

The problem, of course, is that there is a big difference between inaccurate memory and intentional lying, and, using our common sense, all of us recognize that in our daily lives.  If I asked you what tie you wore Tuesday, and the matter was of no importance to you, you might honestly but mistakenly tell me you wore the blue tie.  But if we learned that the matter was of great importance to you, that you had consulted six or seven people about wearing the red tie, and that you had even told someone, “Don’t tell anyone that I was the one wearing the red tie,” then that’s pretty strong indication that when you told me you wore the blue tie, you were lying.  Also, if you don’t merely confuse details about an event that happened but positively invent something that didn’t happen, it is a much harder sell that this indicates honest mistake — not impossible, but a harder sell.

My sense is that the jury weighed this case in an unusually painstaking way, that they liked and were sympathetic to Scooter, that they gave him the benefit of the doubt on the one count where the evidence was arguably equivocal, and that they convicted him on the other four charges because the evidence was very convincing. “Overwhelming” is an over-used word.  But I think the evidence was persuasive, and that we have no reason to think this jury was out to railroad Scooter.  And note that most of the talk about Libby’s appeal deals with the Appointments Clause issue and the judge’s refusal to permit testimony from a “memory expert.”  Even Scooter’s direst supporters don’t seem to hold out much hope that the case will be overturned on the ground of insufficiency of the evidence — an almost impossible burden for a defendant on appeal, since the evidence is deemed adequate if any rational person could have found it persuasive beyond a reasonable doubt.

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