Wednesday, June 6, 2007

Commentary on Libby Sentencing

Receiving a straight guidelines sentence -- and one on the stiff side -- lets the administration feel the full effect of the guidelines sentences they created.  Some thoughts:

1. Convicted defendants who maintain their innocence are placed in a no-win situation when appearing for sentencing.  If they say anything, like for example express remorse, they can significantly hurt their chances on appeal. Judges are liable to shave months off a sentence for acceptance of responsibility.  But the individual who is convicted and still maintains his or her innocence is left in a situation of selecting whether to try and reduce his or her sentence, or risk the chance of success on appeal. And when the sentence is relatively low, taking a chance on the appeal may be better. Libby was respectful to the court, but he certainly did not express remorse, thus maintaining a stronger case for his appeal or possibly for a retrial.

2. Whether the judge will allow Libby to remain free on bail pending appeal is not as definitive as many people believe.  It is true that many white collar offenders do remain free pending appeal, but not all are this fortunate (e.g.,Atlanta Mayor Bill Campbell, Jeffrey Skilling, Jamie Olis). If Judge Walton decides to incarcerate Libby immediately, Libby may appeal to a higher court and ask for a stay pending the appeal.

3.  If Libby is ordered to jail, the question may be whether he is taken on the spot or allowed to report directly to an assigned facility.  There is a benefit to being allowed to report to a facility in that the individual will not be subjected to various prison facilities as they are transferred to their final destination.

4. The administration may be placed in a situation of making a quick decision on whether to pardon Libby or allow him first to serve his sentence.  The pardon would be in sharp contrast to other pardons issued by President Bush.  His past pardons have not been for individuals who were recently sentenced.

5. And then of course there is always the possibility - in criminal cases - of the newly sentenced individual deciding to cooperate with the government.  Even if Libby did have something to offer the government, it may not prove useful as a conviction for perjury and false statements would not make him a particularly credible witness in court.

Checkout - Doug Berman's Sentencing Blog here, discussing upcoming Supreme Court case that could prove helpful to Libby.


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