Saturday, April 14, 2007

Libby Abjures a New Trial Request

An AP story (here) discusses a filing by I. Lewis Libby in which he dropped his request to the district court for a new trial and instead will pursue an appeal of the conviction in the D.C. Circuit.  New trial requests are usually coupled with a motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29, but a defendant need not make that request to the trial court and can pursue a reversal of the conviction in the appellate court.  I suspect Libby's lawyers determined that their Rule 29 acquittal motion is unlikely to succeed, and a new trial motion (which is made pursuant to Rule 33) was just as unlikely, and so need not be pursued at this time.  With sentencing set for June 5, the next issue will be whether U.S. District Judge Reggie Walton permits Libby to remain free on bail pending appeal. 

Under 18 U.S.C. Sec. 3143(b)(1), the statutory presumption is that the defendant begins serving the sentence unless there is a determination that the person is not a flight risk and the appeal "raises a substantial question of law or fact" that would result in an acquittal or new trial.  The recent pattern in high-profile white collar crime cases has been for defendants to remain free on bail pending appeal, which was the case with Bernie Ebbers of WorldCom and John Rigas of Adelphia Communications.  But it is not universal, as former Enron CEO Jeffrey Skilling is in an FCI in Minnesota while his lawyers pursue the appeal in the Fifth Circuit.  I suspect Libby will be granted bail during the appeal rather than sent to jail shortly after the sentencing, but there are no guarantees. (ph)

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It might be that Libby and his lawyers have decided that they want Libby's appeal to conclude before George Bush leaves the White House, since it's possible that Bush will not consider granting a pardon until appellate finality. To seek a new trial would just waste several months, presenting the possibility that appeals will still be sub judice when a new president enters the White House.
Harvey A. Silverglate, Cambridge, Mass.

Posted by: Harvey A. Silverglate | Apr 15, 2007 12:41:18 PM

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