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Scooter Libby Convicted

The Scooter Libby verdict came in around noon yesterday, with a jury finding Libby guilty of four counts of lying in the CIA Leak case, as reported here in the New York Times (3/7/07) and many other publications. And now that the jury has spoken, the bloggers are starting to speak as well. Here's some of the preliminary commentary:

Beldar Blogs offers a lengthy and insightful post-mortem on the trial and the decision of Libby's lawyers not to put Libby on the stand. Beldar assumes that Libby's lawyers determined that putting him on the stand for cross-examination was more likely to convict than acquit him. But at the same time, Beldar notes that in a case that hedged on whether Libby intentionally withheld information or merely forgot, the lack of testimony from Libby regarding his own memory was fatal:

First, the defendant's own knowledge and intent and state of mind are especially crucial in perjury and obstruction of justice cases; the obvious witness to negate those charges, or at least to raise a reasonable doubt about them, is the defendant himself. Second, the  most common reason why defendants decline to take the stand in their own defense is that it will expose them to impeachment via facts that would be otherwise inadmissible. Typically the impeaching fact is a prior conviction, about which the jury would never be advised but for the defendant's decision to take the stand. But Libby had no such worry that his defense would be prejudiced through such exposure. So his and his lawyers' concern had to be with how he would hold up on cross-examination specifically with respect to the facts pertaining to these charges.

A genuinely innocent man — a man with no criminal history (and indeed, a superb record of accomplishments), an articulate man who himself is a skilled attorney who is unlikely to be trapped by unfairly clever cross-examination, a man who is confident of his innocence and his ability to demonstrate it — ought to have taken the witness stand to deny the charges against him.

And Scooter Libby ... didn't.

A man whose inevitable demeanor and presence on the witness stand, whose fundamental and unalterable and obvious nature, was completely inconsistent with the main theme of his defense lawyers — that theme being that he has a poor memory, and that he was so preoccupied with other matters that he simply forgot who told him what and when, or who he told what and when — would not take the stand.

And Scooter Libby ... didn't.

After reading Beldar's posts, I wonder whether Libby's lawyers now regret their decision.

At this post at White Collar Crime Prof Blog, Peter Henning notes that Libby's loss is a clear victory for the CIA, which will prosecute individuals who leak classified information. (I'm not sure that I agree with that; after all, the case wasn't about the leak itself but Libby's alleged cover-up afterwards.) Henning also notes notes that the prosecution here bears out the importance of keeping prosecutors' offices free of politics, so that these kinds of prosecutions can continue. Finally, Henning wonders whether there are any rules that apply in the context of respondeat superior with regard to private organizations might also apply to the Executive Office and allow for prosecution up the chain of command.   

Professor Doug Berman offers predictions on sentencing. He writes:

My guess is 24 months -- the low end of the range for a 17 point offense level. There's also a possibility that the US Attorney could ask for a reduction under Rule 5K or Rule 35 for some sort of substantial assistance, but I wouldn’t hold my breath that Scooter's now going to help, and I wouldn't imagine that Fitzgerald is going to do anything unless Scooter can give up the secret information tying W to Saddaam in a gay sex-for-drugs scheme that took place in Rumsfeld's den.

As bloggers have time to digest the verdict, we can expect additional commentary.

Posted by Carolyn Elefant on March 7, 2007 at 04:25 PM | Permalink | Comments (0)


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