YouTube of the Thelonious Monk Quartet performing Epistrophy in Paris in 1966.  Thought a little jazz with the legal reading would be a good combo this morning.

Reading through the latest filing from Team Fitz in the Libby case is a thing of beauty.  Deborah Bonamici has opened up a restrained but no less effective can of legal whoop ass on the Team Libby attempt to keep Scooter out of jail pending appeal.  That Bonamici does this through carefully-cited and sourced legal precedents and arguments regarding stare decisis (the requirement that prior legal precedent be recognized and given controlling weight) makes it all the better for the reading.

To begin the response brief, Bonamici lays out the criteria for evaluation as required by 18 USC 3143(b) which requires that convicted defendants seeking a stay of sentence pending resolution of appeal proceedings meet the following requirements (per Perholtz, 836 F.2d at 555):  (1) Does the appeal raise a substantial question of law?  and (2) If so, would the resolution of said questions in the defendant's favor be likely to result in reversal of conviction?  The answer to both questions, in Team Fitz' opinion, is a resounding "no."

Bonamici walks through a bit of the Congressional history of the enactment of this particular statute, giving weight to Congressional intent: that "[r]elease of a criminal defendant into the community after conviction may undermine the deterrent effect of the criminal law, especially in those situations where an appeal of conviction may drag on for many months or even years."  This statute was enacted expressly to prevent such delay in sentence being carried out where there is no substantial grounds for appeal that will likely result in an overturning of the conviction.  And, as Bonamici points out repeatedly in her filing, that is exactly the situation in which Mr. Libby finds himself -- a situation of his own making through his own repeated lies, I might add.

One point of legal analysis for the non-lawyers in the audience:  an appeal is reviewed on a couple of levels, depending on the type of question being raised by the defendant.  For a question on an evidentiary ruling, the appeals court reviews the judge's decisions only on an "abuse of discretion" standard -- meaning that unless the court sees some evidence that the presiding trial judge deliberately abused his position and made a ruling outside the normal precedents of law, there will be no reversal of the trial court judge.  This is done because the trial judge is on the scene throughout proceedings and is presumed to have had the best, most grounded and in-depth understanding of the whole of the case and his decisions are, thus, given more weight on evidentiary matters over the course of a trial.  On issues of law, however, decisions are reviewed "de novo," or with a fresh look by the appellate court.

The first issue that Bonamici addresses is the one on which Team Libby is hanging it's biggest hopes:  the question of the validity of the Special Counsel appointment.  This has already been litigated in the case in a prior round of motions briefs and arguments, as well as a very thorough opinion from Judge Walton.  (See here [including quotes from the relevant sections of applicable code for the AG to delegate authority] and here.)

Bonamici makes a particularly salient (and snarky) point in footnote 4, page 6, that i wanted to share with everyone:

Defendant contends thatit can be inferred from thelength of this Court's written opinion that the legal issues presented constitute substantial issues for appeal. Def. Mot. at 5. It is a strange sort of logic that infers that the likelihood of reversal increases with the thoroughness of a written opinion.

That, ladies and gentlemen, is what we like to call poking a big hole in the trial balloon.

More on the substantive arguments against each of the grounds argued by Team Libby for appeal in the next bit of analysis.  To be continued...

UPDATE:  Here's a link to the brief in full (PDF)  (H/T to TiredFed for the link!)