The Libby Appeal

Per a new court filing we can add Mark T. Stancil to the roster of the Libby defense team.  The honorable Mr. Stancil got his law degree in 1999, so we will peg him as a toiler rather than a star on this.

And I have been advised that the Libby appeal of Walton's decision to deny bail pending Libby's appeal, a 122 page .pdf, has been filed. [Here we go: (Libby Appeal, 122 page .pdf)] [html version].  However, I cannot find it on PACER at either the Criminal or Appellate level.  If some legal eagle wants to provide me with a clue or two, that would be lovely.

Thanks to Clarice, and I still want to know how she did that.

UNSOLVED MYSTERIES:  At the PACER site for appeals courts I did find this utterly mysterious order (1 page .pdf)  dismissing the Libby case as of Dec 27, 2006.  Uhh, Happy New Year, Scooter, but why did we go through the charade of a trial?

If I had to guess (and it appears that I do), I would say it is either an early April Fool's gag from the court or, with slightly higher probability, a dismissal of a particular aspect of some CIPA appeal.

Gee, I would hate to think Libby's defense team missed this.

SKIMMING THE APPEAL:  The defense cites three major questions they consider to be close - (1) the constitutionality of the Fitzgerald appointment; (2) the denial of a memory expert; (3) and the inability of the defense to call Andrea Mitchell.  The appeals occupy about 20 pages; the balance is exhibits, including a transcript of the June 14 2007 bail hearing.

Re the Fitzgerald appointment, they make several points but do emphasize the CIPA issue discussed here.  However, let me toss a bone to the prosecution - in footnote 2, page 9 the defense explains that they only learned after the trial that Fitzgerald had signed off on a CIPA affidavit.  However, as noted previously, JustOneMinute readers had noticed an oddity  in the signings last December 2006.  Now, maybe the oddity we noticed is not quite the oddity being mooted by the defense, but the prosecutor might want to nail this down - its something to watch for in the prosecution response, anyway.  [OR EVEN BETTER _ Fitzgerald noted that 6(A) filing was on PACER during oral arguments - p. 58/122 of .pdf)].

Comments

[clarice]

I emailed it to you at your hotmail account, TM.

[SDangerfield]

As you folks (or at least Clarice) seem to have an inside line with the defense team, have you landed a copy of Libby's D.C. Circuit application for bail pending appeal? AP has it, but quoted a less-than-illuminating except.

[clarice]

A reader sent it to me after it was filed and we are trying to get it up and converted to html format, . I hate pdf files and cannot use them,

[Ralph]

I've got it now. MSNBC has a link to it:
http://msnbcmedia.msn.com/i/msnbc/sections/news/070607_Libby_Release_Filing.pdf

(Sorry, posting links is NOT something I know how to do . . . we all have our weaknesses!)

All the Best,
Ralph

[hit and run]

Well, being that the pdf is an image and not text, I had to manually type this in, so any errors or typos are solely mine.

But I think I like this Roy Englert guy....from p. 21:

CERTIFICATE OF SERVICE

I, Roy T. Englert, Jr., certify that two copies of the foregoing

Application for Release Pending Appeal were served by hand and with

middle finger raised with courtesy copies by electronic mail on

the 19th day of June, upon:

Patrick Fitzgerald
Office of Special Counsel
Bond Building
1400 New York Ave, N.W.
Ninth Floor
Washington, D.C.
202-514-1187

[boris]

Ralph's MSNBC Link

[Note - this looks like the Libby filing with Walton from last week. (and the URL is a helpful confirmation)

The main post now includes a link to the new filing.]

[clarice]

Well, I was locked out for a while but I'm baaaaaaaaaaaaack. Honestly, typepad is giving me fits.

[hit and run]

Well, I was locked out all afternoon.

I don't know who I Blame™ yet. But when I figure it out, he/she/they may have to answer for some property damage.

[Pal2Pal (Sara)]

I just read the filing and now I wait with baited breath for the JOM Legal Eagles to tell me what they think.

[Pal2Pal (Sara)]

Some of you will love this:

From The Wide Awakes:

The Other Fitzmas

Crazed fanboy that I am, I’ve been avidly reading Mark Steyn’s dispatches from the Conrad Black trial, but even if you don’t trust men with beards or Canadians, it’s still worth giving this case a second look. It might just be that Patrick Fitzgerald has managed the near-inpossible and found a prosecution sleazier than the judicial lynching of Scooter Libby.

[Ralph]

Boris,

Thanks!

I've got to learn how to do that!

All the Best,

Ralph

[SlimGuy]

How to code a web link

Your Text Label

[SlimGuy]

Durn that didn't work like I intended lets try again

How to code a web link

Your Text Label

[SlimGuy]

How to code a web link

< followed by letter a then use href=" site Url "> Your Text Label and close with < followed by /a>

[Ralph]

SlimGuy,

Thanks.

Ralph

[PatrickR]

There's a nice dig at Walton in footnote 1 on page 7 (p12 of the pdf). They point out that Morrison was required by statute to follow DOJ regs, and that that was crucial to the decision in that case.

They then say that both the Libby team and the amici pointed out this fact to Walton, but he never responded to it.

[Other Tom]

Lucianne just posted something from Byron York, via the Corner, on the issue of Libby's freedom pending appeal. He begins by recounting what he said about the prospects a couple of days ago (Bush not inclined to act) and updates himself. It's short enough that I'll just paste it here:

"If I were asked the question today, all of 48 hours later, I might say it a bit differently. First, I think it is absolutely certain that the president will not take any action on Libby's behalf during the relatively short period in which a federal appeals court is considering Libby's emergency request to stay out of jail while the appeal of his conviction goes forward. If the court were to let Libby remain free, I think it's safe to say the White House would take no action as Libby awaited the final result of his appeal. If, on the other hand — as some observers think likely — the appeals court denies Libby's emergency request, meaning that he will have to report to jail by, say, the end of summer, I now think it is possible that the president would step in to assure that Libby does not go to jail. I'm not sure what form that action would take — perhaps a commutation or delay of the sentence without an outright pardon — but there now seems to be a real possibility that Libby will not go to jail while his appeal is considered."

[Pal2Pal (Sara)]

Tom I posted that article by York with link in the previous thread.

[SlimGuy]

Ralph

Sara recommended something a few threads back I am using now that eliminates accidents with malformation of web links simply due to typo errors.

It's a addon for Firefox called Xinha Here .

 

Once you install it, just right click on the JOM comment box and type in your comment then highlight the portion of your text where you want to imbed the link , then click the link icon at the top of the page and paste your url into the popup window.

When done , then hit apply at the bottom of the window and then submit the comment to JOM.

The stuff in the comment box will look funky because it has all the html imbedded codes carried along with your posting info. 

[vnjagvet]

Quick reaction:

First, thanks for getting it out so quickly.

The brief is understated and well done.

The "close question" issue is immediately tied into the statutory "substantial" question language in Section 3143(b) with a quick cite to U.S. v. Perholtz, a 1987 DC Circuit case.

Then, three "close questions" are briefly but artfully explained:

1. The appointment question (with the CIPA argument set out as evidence of Fitz's use of AG/Asst AG/Deputy AC only authority).

2. The exclusion of the daily summaries of Libby's activities because in part because Libby did not take the stand.

3. The exclusion of the Andrea Mitchell testimony based on a case denying prosecutors the ability to call witnesses who have made out of court exculpatory statements for the purpose of impeaching them in front of the jury.

The transcript of the bail hearing is particularly interesting. Judge Walton's comments on Fitz's affidavit supporting his CIPA redactions seemed to me to be quite long and defensive -- and not particularly persuasive. He tried to make the point that the issue was not raised until after trial, but it turns out no one knew the Affidavit was signed by Fitz and not the AG, an Assistant or a Deputy until the Affidavit was unsealed after the trial was over.

[RichatUF]

from the Libby appeal...still reading it but this caught my eye

It also includes newspaper articles from July 2003 and October 2003 that were found in Mr. Libby’s voluminous files (G 412, 413, 422, 423), even though in some cases there is no evidence the articles were even read by Mr. Libby. (pp. 15-16)

The Court admitted this evidence, over objection, to show that Mr. Libby was focused on Ambassador Wilson and (by speculative inference on his wife. [8] Mr. Libby expects to contend on appeal that the admission of newspaper articles to show, through a lengthy chain of questionable inferences, Mr. Libby’s purported focus on Ms. Wilson was wholly at odds with the exclusion of defense evidence concerning the matters that, as the Schmall and Hannah testimony shows, actually commended his attention at the relevant times. (pp.15-16)

fn 8 is the relevant Fitzgerald quote from the trial

Did those guys read JOM before writing it?

RichatUF

[SlimGuy]

GRRRR

after the right click select xinha here from the context menu then continue on.

[gmax]

OT

But I am outraged and need to vent. Is there a more disgusting human being on this Earth than one James Earl Carter? You would think that a one term failed President with much to be ashamed and certainly be humbled about, would have enought sense to keep his big mouth shut and just live off the magnamity of the salary for life he still draws... GRRR

[topsecretk9]

vnj

and not particularly persuasive. He tried to make the point that the issue was not raised until after trial, but it turns out no one knew the Affidavit was signed by Fitz and not the AG, an Assistant or a Deputy until the Affidavit was unsealed after the trial was over.

Sleazy affidavit file guy number 3 - Miller, Russert, this. Why is he hiding crap?

Fitz needs to be investigated.

[Ralph]

SlimGuy,

More Thanks.

Ralph

[clarice]

In the report of the oral argument, Libby's counsel noted they hadn't seen the affidavit until May (per fdl).TM wasn't sure if he meant May 2006 or May of this year. It is good to have that clarified.

[Ralph]

I have the appeal, and exhibits "approximately" converted to html after running them through OmniPage Pro 15.

The formatting of the pages is NOT an exact match, but the OCR conversion was very good except for some hand written notes, etc.

If anyone has a way of posting it so that anyone interested can download it, I'll be glad to send them a copy (or I can send copies to individuals.)

[RichatUF]

From the Mitchell part...

Here, the jury would have had an abundant basis on which to disbelieve Ms. Mitchell and to infer that the opposite of her testimony was true. Apart from demeanor alone, and her prior dtatement from October 2003 (which was made much closer in time to the relevant events than her subsequent retraction), there was the fact that David Gregory had learned Ms. Wilson's identity in time to apprise Ms. Mitchell. THere was the practice at NBC News, well-established by evidence admitted at trial, of sharing important information in a timely manner. And there was Ms. Mitchell's motive to shade her trial testimony in order to protect Mr. Russert and the NBC franchise from the embarrassment that would ensue if she testified in a way that undercut Mr. Russert's credibility.(p.20)

Was it Fleisher's testimony that he balbbed after the gaggle and that it was Dickenson and Gregory whom he blabbed to? NBC has kept Gregory quiet...

RichatUF

[lurker9876]

and not particularly persuasive. He tried to make the point that the issue was not raised until after trial, but it turns out no one knew the Affidavit was signed by Fitz and not the AG, an Assistant or a Deputy until the Affidavit was unsealed after the trial was over.

And Walton knew before the trial, right? And saw no problems, right?

Can this be added to the argument that Walton failed to act constitutionally on this affidavit as well as other things?

[clarice]

Ralph I could not open what you sent me and now I can't get onto Yahoo mail.
I'm about to kill myself. I'll keep looking to see if anyone can post this in html no matter how messed up that might be.

[hit and run]

From Rich's quote:
Mr. Libby expects to contend on appeal that the admission of newspaper articles to show, through a lengthy chain of questionable inferences, Mr. Libby’s purported focus on Ms. Wilson was wholly at odds with the exclusion of defense evidence concerning the matters that, as the Schmall and Hannah testimony shows, actually commended his attention at the relevant times.

And from Walton at the hearing, well scratch that, let's go to Cathy quoting Walton as a joke, er making a joke:

The punchline is that Walton conducted a trial which was, in its entirety, "asking the jury to draw inference upon inference upon inference that [was] rank speculation absent evidence." And the secondary punchline is "If the government had tried to make this kind of case it clearly would be reversible" in a hearing where Walton ruled it wasn't close to reversible!

Rich asks:
Did those guys read JOM before writing it?

I say yes. I mean, they may be lawyers, but they ain't stupid.

I keed.

[Rick Ballard]

Ralph,

Go here, click my name in the column on the right and send me the translation. I'll post it on a subsite a few minutes after I receive it.

[Other Tom]

I'm sorry to raise a point that sounds like a lot of lawyer-talk inside baseball, but I honestly do believe that Walton denied bail not because he thought there was no close, substantial question, but because he (erroneously) tried to predict how that question would be resolved. That was my clear understanding of his comments during the live-blogging of the hearing on Libby's motion. Does this seem correct? I think I expressed at the time that he was using the "likelihood of success" standard that is applied in cases of temporary injunctions.

I may also be confused on another matter here. The 20-odd page brief dated June 7 is the one on which Walton has already ruled, right? I understand that the entire appeal brief (100-plus pages) is also now available. Question: do we now have access to the separate, shorter papers that Libby will be filing with the D.C. Circuit in conncection with his emergency appeal of the denial of bail?

Sorry to be so slow, folks. Worse yet, this degree of confusion is present with the cocktail hour not even having begun--although that infirmity will be taken care of without further delay. Perhaps things will be clearer in an hour or so.

[clarice]

God bless you Rick.

[clarice]

The answer to para 1 OT is yes, that is my belief, too.
As for para 2 I don't know what you are talking about. I think all he has to file with the Dist Ct at this point is a notice of appeal--a form basically.

[RichatUF]

H&R...

Fast...too fast...

I haven't even clipped the part of United States v. Safavian, No. 05-CR-037, 2006 (p.3, Libby Release Filing)....being instructive...

Clarice brought that up a couple days back...

RichatUF

[Ralph]

Clarice,

I just realized that I didn't send you all that was neede (I don't use html stuff that often) I'm sending you what should be the "complete" package now, and it opens in IE explorer without any problem, and the text can be individually selected, copied, etc.

Sorry about the confusion.

All the Best,

Ralph

[clarice]

Ralph, you keep sending me stuff but I'm afraid I cannot get into yahoo mail and yahoo is completely screwed up so I can't even report it.

[RichatUF]

OT...

...Walton denied bail not because he thought there was no close, substantial question, but because he (erroneously) tried to predict how that question would be resolved...

IANAL: However, he was pretty clear during the hearing that he didn't think the CIPA stuff or Mitchell was close. On the appointments issue he folded Morrison and Edmond into a jail cell. I looked at it as him ruling since his reasoning was flawless (removable=supervison), therefore the question wasn't close [he muttered something from the bench about how he needed to rule that the appoinment issue wasn't close before he took a recess]. He never got to the second part of if it were ruled differently it would result in reversal. My take FWIW

RichatUF

[Carol_Herman]

Other Tom,

I'm going to give Walton credit for guile.

From where he sits, if the president tosses the case, he's home free. There won't be an "upper court" disclosure of his errors.

What's the chances for that?

Hard to say. The DC circuit has found a way to be on "summer vacation" when it isn't even summer.

Yes, there are options on the table. And, increased curiosity. Again. Probably after Walton's life had returned to "normal."

Besides, if it's true that Ruth Bader Ginsberg is set to retire; that opens up the Supreme's "appointments" to the president's review. Robed wonders will be paying attention to that.

Where, here, for guile, Walton chose a road where there's at least an option of a presidential toss. That. And, he took lots of satisfaction in hurting Wells. These are the quirks that make outcomes ahead seem so interesting, even to the lay public.

[Ralph]

Clarice,

Let me know when it's working or where else you'd like it sent.

All the Best,

Ralph

[clarice]

Please send it to Rick to print. I really am unable to deal with this any more.
I can read and alayze it but this technical stuff is driving me up a wall. Go to the site he gave upthread. He'll post it there and we can all work with it. Thanks again for all your work.

[Other Tom]

Clarice, I've been under the impression that in the very near term (well short of having the actual appeal heard) the Libby team was going to appear on an emergency basis before either a single judge or a three-judge panel of the D.C. Circuit, simply seeking an order granting bail during the pendency of the appeal. I've also been assuming that they will file papers in connection with that effort, obviously similar in substance to the 20-some pager they filed with Walton, but different in that it will recount the fact that Walton has ruled, and will argue that he got it wrong--and maybe even that he applied the wrong standard in doing so.

What am I missing?

[Tom Maguire]

As best these tired eyes can tell, the MSNBC link offered above is to the brief Libby filed with Walton. The main post now has a link to the *new* Libby filing addressed to the appeals court.

And talk about the biter bit - Fleischer's testimony that he leaked to Gregory was uncontested and unrebutted. Fitzgerald presumably wanted to save Fleischer's credibility on the "weird lunch" story, but... how can he argue that Gregory did not know? Fleischer was *his* witness!

So, as the defense argues, if Gregory knew then Mitchell knew. This does not even seem like a hard one for the appeals court (but I haven't been right yet...)

[Pal2Pal (Sara)]

OT you are missing the emergency appeal that TM posted in this post above. It was filed today.

[clarice]

Yes, OT the 122 pg pdf filing is the filing with the Circuit Ct. We have been involved in a dizzying to me effort to get this converted to html formal and published so we can work with it.

If you belong to a bar association try to persuade them that it would be useful to have these things available to the public in some editable form for explanation to them.
If people only knew how damned hard it is to write a useful piece from one of thee daned pdf files briefs!!!!!!!!!

[clarice]

Re Gregory--it will be amusing to see Fitz argue the court should disregard the uncontested evidence from his star immunized witness.........

[Ralph]

Rick,

I just sent the html to you. My email has been funny today as well. No problem receiving, but intermittent problems accessing the mail server to send.

All the Best,

Ralph

[topsecretk9]

--how can he argue that Gregory did not know? Fleischer was *his* witness!--

Well, that is a conundrum. He'll use Dickerson's denial and argue with a straight face Fliesher was misremembering? - but then what exactly did Ari need immunization from then?

[hit and run]

From the filing:

Counsel are informed that the Bureau of Prisons will shortly designate a prison facility and direct Libby to report withing a period of two to three weeks after designation. Accordingly, we respectfully request that the Court expedite action on this application.

2-3 weeks is shorter than was the guess (6-8 weeks, IIRC).