July 02, 2007

DC Circuit Calls Bullshit on Law Profs

by PG

A unanimous panel that included well-known conservative jurist David Sentelle decided today that Libby had "not shown that the appeal raises a substantial question under 18 U.S.C. 3143(b)(1)(B)." In the more heavily noted news of the day, that decision prompted President Bush to commute Libby's 30-month prison sentence. Though this may seem disappointing to those who had called for a pardon, it's actually a win-win. Win: Libby doesn't spend a single day in prison. Win: he still gets to appeal his sentence so he won't be a pardoned felon. Oh, and win: to my knowledge, the commutation does not preclude Bush from pardoning Libby should he lose all of his appeals before he dies. (Which in the 5th Circuit would have gotten him out of all liability, including the fine, but I don't know if death has the same cleansing effect in DC.)

I'm only sorry that the commutation precludes Libby's appealing the DC Circuit's decision to the full court, and then to the Supreme Court, so the argument could get slapped down a couple more times. Perhaps those lesser known defendants for whom Judge Walton said he'd request the lawprofs' help are better off without.

UPDATE 1: I didn't know that Libby had served as one of Marc Rich's attorneys at the time Clinton pardoned him, and that Libby had testified before Congress that he believed Rich was not guilty of the tax evasion and racketeering charges that Clinton had pardoned.

UPDATE 2: According to U.S. v. Pogue, 19 F.3d 663 (D.C. Cir. 1994), death before a completed appeal wipes the slate clean:

In Durham v. United States, 401 U.S. 481 (1971) (per curiam), the Supreme Court adopted the so-called "abatement rule," holding that "[d]eath pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception." Id. at 483 ... The principle underlying the abatement rule is that "the interests of justice ordinarily require that [a defendant] not stand convicted without resolution of the merits" of an appeal. United States v. Moehlenkamp, 557 F.2d at 128. Each of our sister circuits but one has chosen to adopt the abatement rule, and the Government here concedes that we should adopt that practice as well, although not applied to these facts. Because we can find no basis for denying the rule's application in this case, Pogue's conviction must be vacated.
Durham did not make abatement required in the federal system, but instead has “allowed the scope of the abatement to be determined by the lower federal courts,” which are to rule “as law and justice require.” Nor will the Supreme Court necessarily abate decedents' convictions, as in Dove v. U.S., but the lower courts have reasoned that that was just meant to apply to the Supreme Court, not to themselves. July 2, 2007 06:48 PM | TrackBack
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