Thursday, July 12, 2007

Everybody's Doing the Libby Motion

Like the latest dance craze, Libby motions are popping up all over the place.  As nicknamed by blog co-editor Ellen Podgor, among others, the Libby motion is an argument raised by defense counsel seeking a reduced sentence for their clients based on the rationales offered by President Bush for commuting the thirty-month prison term of former senior Administration aide I. Lewis Libby.  In the upcoming sentencing of Troy Ellerman, the defense filed a supplemental brief (available below) aligning the attorney who leaked the grand jury testimony of Barry Bonds and other athletes about their steroid use in the Balco investigation with the erstwhile former chief of staff to Vice President Cheney.  The brief argues:

Living with the guilt, torment and uncertainty of where his life was headed since he committed these acts, then losing two full professional careers, and suffering wide-spread public ridicule in the media has already resulted in Mr. Ellerman being held to a “higher standard” for his actions than other defendants. In this regard, Mr. Ellerman has already been punished in a fashion similar to that of Lewis Libby. However, a key point of differentiation is that Mr. Ellerman, unlike Mr. Libby, is going to serve time in a federal prison. Given that fact, it is clear that whatever prison sentence the Court imposes, Mr. Ellerman is going to have to pick up the pieces of his life and start anew after he is released from custody.

Unlike the Libby commutation, the defense is not arguing for a complete pass on a prison term, only that the term be at the bottom of the Federal Sentencing Guidelines range, which is fifteen months.  Ellerman and federal prosecutors earlier agreed to cap his sentence at two years, but U.S. District Judge Jeffrey White refused to accept the plea without a longer term of imprisonment (see earlier post here).  Federal prosecutors have continued to recommend a two-year term, but the agreement now allows a sentence up to the maximum Guidelines range of thirty-three months. 

Will the Judge buy the Libby argument?  I suspect the answer is "No" because Judge White has shown no inclination to shower much mercy on Ellerman for disclosing documents in violation of a court order and compounding it by accusing prosecutors of leaking the information.  But then, who would have guessed that Libby would not serve a day in jail, so stranger things have happened.  As it stands, everyone facing sentencing now seems to have a soft spot for Libby. (ph)

Download us_v_ellerman_supplemental_sentencing_memo_july_10_2007.pdf

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It's not that those facing sentencing have a soft spot for Libby, it's that they want fairness in sentencing. And I agree wholeheartedly with that.

Posted by: Jan | Jul 12, 2007 8:27:41 AM

You've got to admit that Ellerman has paid a servere price up to now. I can only see the haggling over the few months involved as nit-picking. Con men throw themselves on the mercy of the court and usually get off with slap-on-the-wrist sentences.

--Jack Payne

Posted by: Jack Payne | Jul 12, 2007 2:04:55 PM

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