scooterlibby.jpgIt's time for a bit of a Libby case update.  Thought everyone might like a bit of scheduling information, as well as some bits and pieces on sentencing and other news. There have been a few extraneous motions and other filings over the last few weeks, most of which consisted of a notice of intent to appeal and a request for an extension on the filing of the appeal and other matters. It was a long trial and getting even an expedited transcript takes quite a while, and you need to file motions to the court based on exact quotes and information, not on your own personal notes — that must come from an official transcript. So requests for a bit of a delay were neither unusual nor unexpected.

Any appeal documents and post-trial motions filed for argument prior to sentencing will be interesting. But it is really the presentence investigation report that everyone is waiting for at this point.

What is that, you ask? 

This is a pretty good description and update on where things stand at the moment: (via Will Sullivan from USN&WR) 

Libby's lawyers and special prosecutor Patrick Fitzgerald will get their hands on the report May 15, but the document will not be publicly released–not before Libby's June 5 sentencing nor after. The report will include a probation officer's calculation of what sentence Libby should receive under federal guidelines and a judgment on whether the case merits a different sentence. Lawyers on both sides can contest parts of the report, and the judge ultimately can depart from its findings, but it will serve as a kind of first draft of the eventual sentence.

The presentence investigation is done by a federal probation officer, and is put together via a review of documents, testimony, evidence in the case, and other materials that the jury may have reviewed in coming to a verdict; several interviews and discussions with the defendant and persons identified by the defense team as being able to vouch for the defendant's character; FBI agents and other investigators who may have either interviewed the defendant or investigated this matter; and a whole host of other information. Judges take these reports very seriously, and they often form a very solid foundation for how the judge views sentencing considerations in terms of the federal guidelines applications. All of this is designed to give the probation officer writing the report a well-rounded picture of who exactly the defendant is, and whether or not said defendant has accepted responsibility for the crimes for which he has been found guilty.

And thus the dilemma for Scooter Libby.

Libby is at a disadvantage for the presentencing report, however, because he was convicted rather than pleading guilty. The sentencing guidelines provide leniency for those who accept responsibility for their crimes and cooperate, but since Libby continues to contest his conviction, he will very likely struggle to show remorse about crimes he still contends he didn't commit.

"His lawyers necessarily are hamstrung in their ability to contextualize the offense, given that they have asserted innocence from the get-go," says Douglas Berman, an Ohio State University law professor.

Libby's eventual sentence may depend on the probation officer and the judge's degree of sympathy for him. If he comes off as an unlucky fall guy for higher White House officials, as he apparently did for several jurors who convicted him in March, Libby could be free earlier than the guidelines suggest. But that same refusal to shift blame to his bosses could be read as obstinacy, an impression that might not bode well for Libby's future.

I can tell you from personal experience that not only do probation officers take the writing of these reports and the compiling of this information very seriously — but they generally frown on people who tell them half-truths, who try to downplay culpibility, who refuse to accept responsibility for their own actions, and especially those who refuse to be fully and completely honest with them. In other words, should be an interesting read when it's written up, wouldn't you say?

The presentence investigation report is due to the court on May 15th.  And Libby's sentencing is scheduled, at least at this point, for June 5th.  Jeralyn has a great walk through of sentencing guidelines calculations and range potential for the Libby case that are well worth a read, for folks who want a peek.

(Photo by Manuel Balce Ceneta/AP.)

Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com

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