Libby almost pled, but Fitz wanted "serious" jail

Just read this article from Time Mag that suggested that a plea deal was in the works last week before the indictment of Libby came down where Libby would plead to some charges. The deal allegedly broke down because Fitzgerald wanted "serious" jailtime for Libby. Couple that with this post on the Drudge Report which suggests that Fitzgerald may call Cheney as a witness, and that Cheney will refuse to testify pursuant to Executive privilege, and you have the makings of what I predicted before - a presidential pardon in the works.

As far as I'm concerned, the only question is when does Bush do the pardon. Clearly, he has to wait until after the mid-term elections, since he looks so weak right now, and he's clearly dragging his party down, this would be a nail in the coffin. So, does he do it right after the mid-terms, before the new Congress convenes (this would depend on how the Republicans do in the mid-terms, I guess, because it would probably never happen if the Democrats retake Congress), sometime during the next Congress, or after the next presidential election and before he leaves office (again, this would probably depend on whether, God forbid, one of his toadies like Condi wins in 2008).

It seems clear that Libby is willing to fall on his sword to protect Cheney. Let's be real, is there any doubt that Cheney was intimately involved in the decision to leak Plame's name? Libby goes and picks Cheney up at his house every morning so they can drive in together. Libby is as close to a shadow president you can get without being assigned directly to the president, as opposed the VP. If Libby was willing to plead, but not to too much jail, it means he'll fall on the grenade for Cheney, as long as he doesn't have to sing for the Grand Jury against Cheney.

I have to think that a pardon has been either explicitely offered for playing along, or at least implicity offered. Does anyone think that Bush, the most famously loyal to a fault president in the nation's history, is going to let someone like Libby go down while he was pushing Bush's most cherished pet project, the overthrow of Hussein? C'mon now, who could really believe that.

Libby Indicted!!! Rove Spared (for now)!!!

All I have to say is, about time. Congress could clearly not be relied upon to investigate serious charges like the outing of Plame, and a politically connected prosecutor would not be trusted to bring charges like this nor to actually investigate with the tenacity that Fitzgerald appears to have investigated the case with.

I still doubt seriously that Libby will ever spend a day in jail. Even if he is convicted by a jury of his "peers," he will then appeal his case to a appellate court that is packed with right wingers who in many cases have an agenda to help out their political party. They will know who buttered their bread. Even assuming that it gets far enough to that point, I can assure you of one last fact - In the days between the 2008 presidential election and the January 2009 inaguration of a new president, Bush will, like his father, pardon anyone involved in this case.

As long as Libby can put off his day of reckoning for 3 more years, he is home free. My guess (I've been wrong before: see my Supreme Court speculation and Martha Stewart speculation), Liddy never has to meet up with his new cellmate Bruno and explain where his nickname Scooter comes from. But, as I've said, Republicans don't go to jail, they only put people there.

What if.....A Democratic Ken Starr as Special Prosecutor

I remember thinking how absurd it was that a Clinton hater was made special prosecutor for Whitewater (in which, of course, he found no wrongdoing). But, turnaround should be fair play. Even though the Republicans are calling Paul Fitzgerald "overzealous," the simple fact is that he is about as apolitical as they come, pretty much what you would want in a special prosecutor who is pursuing politically charged allegations. So, why have him if they didn't get someone like him for Clinton.

For special prosecutor, if he declines to indict (or even if he does, but doesn't go high enough), I suggest he be replaced with .... John Kerry. He was once a prosecutor, he can investigate this as well as anyone. Why not choose him, he'll certainly be as balanced and fair as Ken Starr was, so isn't turnabout fair play, or not? Is there a different standard for judging Republican wrongdoing than Democratic? Remember, Fiske was replaced as incdpendant counsel by Ken Starr, not because he had done anything wrong, but for appearances purposes after a new OIC (office of independant counsel) statute was introduced (of couse, the real reason Fiske, a Republican, was replaced was because he wouldn't endorse any of those loopy Republican theories that Vince Foster was murdered by Hillary). I say we get a new one after Fitzgerald is done with this Grand Jury. And I say we get John Kerry as our new independant prosecutor.

It's only fair, and lord knows, Republicans are all about fairness.

Great rendition of what is a typical PD/Client conversation

Over at Live Journal, there is a great rendition of a typical conversation that I seem to have with clients on at least a weekly basis (maybe less so, since I tend to handle more serious cases, and thus have less volume, but certainly back in the misdemeanor stage of things).

Thanks to Skelly over at Arbitrary and Capricious for the great link. Skelly has a jury out now for a few days. I know how agonizing that can be. My last jury went out on a Friday, and came back on Tuesday (Monday being a court holiday), so I had to stew on it for the whole weekend. I hate jury deliberations. Good luck Skelly!

Tom Delay - Guilty until proven innocent?

I just did a trial where, during jury selection, I had some of the most right wing reactionary possible jurors expressing themselves. Basically, this was what they had to say: "If you are charged with a crime, it means you are probably guilty, because the DA would never charge someone who didn't do it, so even without any evidence, I would find the defendant guilty." "If you assert your right to remain silent, you do so because you are guilty." "Being charged with a crime is evidence of guilt." "Being in a gang means that you are guilty of anything that gang does, even if you have no part in it."

You get the idea, these people were so out there, they made Torquemada (Spanish inquisitor, for those who don't know, or never saw History of the World Part I) look reasonable by comparison.

So, it got me to thinking, do any of those right wingers believe that Tom Delay must be guilty? I'm sure they don't, but he is an indicted felon. A grand jury of disinterested citizens has found probable cause that he committed a crime, even after being presented with any exculpatory evidence (I'm sure right wingers will now loudly protest that a grand jury could indict a ham sandwich, which I don't dispute, but hey, am I going to be the looney liberal to suggest that the system is weighted against criminal defendants? No, I'll leave that to the right wingers right now).

I wish that I had thought to ask these potential jurors this question.

I did get a nice couple of lines in, though. You see, during investigations into police misconduct, or any time there is an officer involved shooting, and Internal Affairs wants to question the officers, they have to read them their rights first (never mind that they're not in custody). The officers are then given COMPLETE IMMUNITY on what they say, so that it cannot be used against them in any way in a criminal matter, so that they can investigate the potential misconduct. This means, practically speaking, that the police can rarely be charged with crimes after they've given these "compelled statements." How many other jobs do you have where you can keep your job and assert your 5th Amendment right to remain silent in the face of potential prosecution? None that I know of. So, if all criminal defendants who don't testify, or assert their 5th amendment rights, are guilty, does this mean that all cops who assert their rights and then have to give compelled testimony are also guilty of the underlying crime they're refusing to speak of?

I asked this of those obstinate jurors, and you could see them crumbling behind the walls of congnitive dissonance that they've hidden behind. You could almost hear them muttering to themselves "Must...watch...Fox...News...NOW!!!"

The Death Penalty in Los Angeles

This applies directly to me, so I'll be the first (that I know of) to write about it.

The LA District Attorney's office is getting out of control in the number and type of cases that they seek the death penalty on. There has been a change leadership on the Special Circumstances Committee (the group that decides whether to seek the death penalty or not on special circumstance cases), and the new leadership is apparently committed to seeking the death penalty more frequently, in line with their political beliefs that more people should be sentenced to death as a matter of course.

The most egregious example of this is the case of Juan Alvarez, who tried to kill himself by putting his car in the path of an oncoming train. Whatever you may think about Alvarez and his admittedly stupid actions, how they merit a potential death sentence is completely beyond me. Considering that the death penalty is meant for the worst of the worst, for those who are just so evil and depraved that they have forfeited their right to live in even the indecent society of prison, how can a person who, by all accounts, only wanted to harm himself, be put in that category. How many times do cars get hit by trains without causing anything more than a few bumps or bruises for the people on the train, while killing the driver of the vehicle. The fact that this one time the unthinkable happened does not in any way merit a death sentence. This is the intersection of law and politics at it's worse (and is an argument for doing away with the death penalty altogether - in that having political considerations decide whether someone lives or dies is reprehensible).

But, that case is not alone. In my conversations with many people around the courthouse, DAs and defense lawyers alike, I have discerned a trend that the death penalty is being sought in much greater numbers with the change of the committee. Cases that in the past would never merit seeking death, let alone receive a death sentence, are now being treated as death cases (whether they actually succeed in getting death in many of these cases remains to be seen, and won't be known for another year or two).

Now, let's say you like the death penalty, and think that it isn't sought frequently enough - fair enough. But, let's see this through. I have one death penalty case right now, as do a few of my collegues. This death case has begun to crowd out my other cases, in that it will begin to take more and more time to prepare for than if the prosecution had just sought a punishment of life in prison without the possibility of parole. In fact, if they were not seeking death, I would not even be on the case - the only reason I got on it was to work with another person who was already on the case but unable to go it alone. So, at some point, 2 lawyers are going to be working on this case close to full time, preparing for nearly a year for this case to go to trial. What happens to all of my other cases at this time? Well, I will have to have less cases, which means that they will have to go to someone else. But, you can't give too many cases to other people, so we will have to promote more people to felonies to handle these cases. If you promote more people to felonies, you need to train them, which requires resources, and you need to promote them, which means more money. And you need to replace them, which requires more hires. Thus, just because of my one case, perhaps you'll need to hire another 2 or 3 lawyers to pick up the slack.

And that's just one case. The prosecution is seeking death in a bunch more cases than usual. What if they have 10 more death cases in my office than they normally would have? This could mean 20 extra lawyers to pick up the slack. And then you have to deal with the paralegals that need to get hired to pick up the extra work on these cases. Of course, an investigator needs to work on the case, and they will be more tied up on that case than on your typical case, so maybe we'll need a couple more investigators for those cases. And don't forget, we'll have to travel much further afield than normal to investigate penalty, which is a more intensive investigation than just investigating the guilt phase (this is becuase you have to investigate the person's background, their childhood, youth, etc... which means you need to go to where they're from and track down their family, which can often require people to go places around the country, or even overseas). Are you still adding up the costs?

Don't forget about the extra experts that are needed in such a case, just for penalty. You need to look at the organic history of the person (do they have brain damage, mental retardation, other mental, psychological, psychiatric or physiological problems?). This may require things like shrinks, doctors, MRIs, PetScans and other potentially expensive tests. The state (ie - you, the taxpayer) pays for this. The DA's office probably needs extra resources on all of these cases, I don't know first hand, but I can guess extra investigators, attorneys, paralegals, and other resources. They'll also need to conduct their own testing if any of the defense testing shows anything of consequence.

These cases strain the courts more as well. They require more money for things like daily transcripts, longer trials, overtime for court staff to handle the extra work, court reporters charge by the page and per copy, so when you look at long transcripts with at least 3 copies (if there is only one defendant, it goes up more for each extra defendant), you are looking at a lot of money. One court reporter I know made over $10,000 (above and beyond salary, this is for just the transcripts) for transcribing a 3 week/3 defendant prelim. And that wasn't even a death penalty case. I can assure you that the prelim would've been twice as long if it had been a death penalty case (again, you do the math).

I have no idea about the costs of appeal, except to say that they are much more expensive than incarcerating the person for life.

So, let's assume you really want to kill a few more people, rather than put them away in solitary confinement for the rest of their lives. In other words, they are already getting a death sentence, the only question is how long before they die, and how naturally or unnaturally they die. Of course, they will probably live for another 20 years before execution, as well. Is it that important that their life ends a few years earlier by the hands of the state that you spend so many extra millions of dollars to do it? So that you can execute someone who was trying to kill themselves on the train tracks?

If you really think it's that important, I suggest you raise your own taxes by a few hundred a month to pay for it, donate that money, it's so important to you. I'm getting some of that money, so thanks in advance.

Karl Rove in waist chains?

Appearing before the grand jury for the 4th time, not being assured that he's not a target, being pressed about details of his prior inconsistent statements? These are usually signs that someone is about to be indicted. In general, one would not appear before the grand jury without a grant of immunity under such circumstances, but of course, politics is not regular circumstances. So, Karl Rove is virtually required by his high political position to continue to appear for grilling in front of the grand jury (much like Clinton virtually had to appear before the grand jury in the Lewinsky matter).

But, remember what I wrote about a while ago, Conservatives generally don't go to prison any more. They are generally immune from prosecution. My theory why: prosecutors are frequently conservatives, and they have managed to make tough law and order consequences not apply to fellow travelers. In general, they have applied over the years to poor people, especially minorities. Perhaps that is changing these days, what with the extremely long sentences for people like Bernie Ebbers, the Tyco folk, the Adelphia folk (they were hard-core Republicans), and some of the other white collar criminals

The difference here, I think, is that Karl Rove is not a conservative accused of doing a run of the mill crime, he is a Republican operative accused of a crime in the course of his Republican duties, actions that were core to his political activities (in general, he's a slimer, and he was sliming someone here, and probably either went overboard, or lied about his actions). In these situations, I have found that the stink generally stops very low down, and the Republicans have managed to keep the upper folk from getting nailed.

Look at all of the lower lever soldiers who have been imprisoned for torturing detainees. Why has this stink not floated higher to the top (such as to the Secretary of Defense, White House Counsel or Attorney General, all of whom approved tactics that resembled torture and argued that the US was not bound by the Geneva Conventions)? In general, it is because Conservatives have managed to avoid accountability at the top for their actions, keeping the blame down low, and even then, protecting their own. I've written before about Oliver North and John Poindexter getting off on technicalities (and the rest of the lot being pardoned anyways), Rush Limbaugh's drug addiction somehow still avoiding prosecution, and other situations.

Compare this with the way in which tiny little controversies managed to become impeachable offenses during a liberal presidential administration, and the difference is stark. All of the original basis for independant counsel in the Clinton administration turned out to be spurious, and Clinton almost went down (pun intended) for lying about a BJ. Compare this with what has not even garnered a special prosecutor in this administration, and the comparison is stark.

As I've also mentioned, conservatives have no problem utilizing those technicalities they decry poor defendants from using. This is how Rush makes common cause with the ACLU in arguing his (no longer "so called") right to privacy in trying to keep his medical records out of the hands of prosecutors in Florida. I can assure you that Rove and Libby, if indicted, will allay themselves of the full panalopy of their rights, no matter how much they have tried to have judges appointed who seek to undermine those rights. And, ironically, judge will give far greater scrutiny to those rights when examining their case.

As I said, all in all, it looks highly unlikely that we will ever see Karl Rove in the waist chains that once adorned the reporter who refused to talk, or people like Susan McDougal, who refused to cooperate with Ken Starr (knowing, by the way, that he only sought her testimony to force her to say what he wanted or charge her with perjury for not following the script). And so it goes, Conservative law and order values tend to get flushed down the toilet when applied to Conservatives (the first US Supreme Court case to cast doubt on the mandatory minimum sentences that were so harsh to minor drug offenders was not a case that shocked the conscience such as 20 years for possession of acid, but those conservative heros Stacy Koon and Lawrence Powell, who were given sentences lower than the mandatory minimums for beating Rodney King, and the conservative Supreme Court, for the first time agreed that the mandatory minimums were perhaps not always mandatory).

It is, of course, hypocrisy at its worse, but it is the intersection of law and politics, American style.

Back in Action

Welcome me back everyone, because I'm back in action. Don't ask me where I've been of late, because I have no clue. Actually, that's not entirely true. I have been very busy at work over the last month and a half, and I have been in trial for over a week in a very serious case where I feel my client should walk. I also think that if I give too many details right now, I'll get outed. So far, I've been figured out by a few people around the office. They've kept it quiet, but I know, sooner or later, it'll become general knowledge.

So today, my question is: why anonymity, and does it matter.

Obviosly I have my views on this, since I've kept myself anonymous for this long, and work a bit to keep it that way. I generally feel that being anonymous, it gives me greater freedom to spout off my opinions. Not complete freedom though. Obviously, since I can be figured out, I have to show some discretion over what I say. I can't go and reveal client confidences that would make a difference and that could be traced to a specific client. However, being anonymous, it gives me greater freedom to say something like "my client in a recent murder case said...." It would be pretty hard for that to trace back to a specific client (as long as the comment wasn't too specific). It gives me freedom to criticize generic DAs without revealing who they are. A long while back I was in trial on a special circumstance murder case and railed against the DA at length. If I wasn't anonymous, that would immediately trace back to the DA, and could possibly harm my client.

On the other hand, keeping anonymous has been difficult. I can't be too specific about a case that I've handled, and I can't be too specific about where I am. Otherwise, it will be figured out pretty quickly (even the general clues that I've dropped over the years have resulted in a couple of people figuring me out - but they're friends, so they're not saying anything).

I like being able to speak freely and not worry about what people are thinking about me, as well as what they are saying about the blog and the things I write when I do so. Perhaps I don't like drawing attention to myself, and that would keep me from jumping front/center with attention to who I am.

I am curious about how revealing themselves has worked out for people who previously were anonymous and are now revealed, and for those who were never anonymous in the first place. People such as Patterico work in my field (perhaps very close to my home????) and have come out of anonymity, I'm curious how it affects him (he gets far more hits than I do, and he has branched out as a general conservative political blogger).

I also wonder if my anonymity has kept me imprisoned in this role of discussing mostly legal/criminal issues, and if coming out frees people from some of those constraints. I've received in general very poor reaction to discussion about off-topic issues, perhaps because people either don't think much of my opinions, or don't come to this blog for that purpose. I have a lot of strong views on a lot of different subjects, but have mostly kept them to myself on this blog in part because I'm only seen as "Public Defender Dude."

Anyways, for my regular host of readers who have stuck by me through my long hiatus, I thank you. Pass the word along that I'm back, so feel free to check back soon, and you'll see more rantings from PD Dude.