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Saturday, October 29, 2005

All It Takes Is One...

As a prosecutor, you can't always predict when the wall will crumble. So what do you do? You sit back, and wait for a tiny little crack. And then you exploit the hell out of it.

Scooter Libby just may be that point that rocks the entire case. Or maybe not. But to get there from here, you have to understand a little bit about what a plea bargain really is -- and how a prosecutor works a defendant to get one. I've been getting quite a few questions about plea bargains, so I thought I'd try to answer a few here.

A plea bargain is exactly what it sounds like -- an agreement between the prosecutor and the defendant on terms that both can live with to settle an outstanding criminal charge. But it is a bargain, not a gimme, for any criminal defendant.

Wikipedia has a decent enough shorthand description, which reads:

The defendant agrees to plead guilty or no contest (and often allocute) in exchange for some concession from the prosecutor. This concession can include reducing the original charge or charges, dismissing some of the charges against the defendant or limiting the punishment a court can impose on the defendant. [RH Notes: An allocution is where the defendant must state on the record to the judge exactly what his actions were in the commission of the offenses to which he pleads.]

It is a bargain that both sides have to agree to -- and prosecutors do not offer them lightly, no matter the stress of their case load. The defendant has to give something in return in almost every case of a plea.

A defendant faces substantial jeopardy in a criminal case. I've been in and out of state and federal prison facilities (as a lawyer, not an inmate) and, I can tell you from personal experience with my clients, they are not places where anyone would willingly spend any amount of time by choice. They are filled with violent, malevolent, and incredibly cunning people who would rip your throat out for looking at them sideways and not even lose a moment of sleep, and those are the ones that you see coming.

Even in a minimum security prison where you might be able to have some shielding from the more violent prison population, and even with the potential for a reduced sentence for good behavior hanging out there, it is not something to which I would ever subject myself under any circumstances if possible, and not something that Scooter Libby will relish as a prospect, either, I'm sure. With the federal prison system full to bursting right now, there are no "country club" prisons any longer.

The reasons for making this sort of agreement are many. In my experience, we offered them in the sorts of cases where you had a victim who would have had to re-live their experience on the stand -- cases where you have a child who has been the victim of sexual abuse, or an adult rape victim, or some other mentally traumatic experience -- where you have substantial physical evidence, enough to hold over a defendant to get a decent plea to a lengthy jail sentence, but not have to re-victimize the survivor by putting them through testimony on the stand and cross-examination.

You also sometimes have a case that looks good at the end of the initial investigation, but the more you dig into it and meet with witnesses, the worse it starts to look, and you offer a plea in order to salvage something from the case. I've been forced to do that in cases where I've had to deal with incredibly unsympathetic victims, that would have aliented the jury simply by breathing in the same room with them. (Those are the worst cases. Painful and completely unsatisfying.)

Having read through the Libby indictment, however, the evidence is solid, overwhelming, and multi-layered. None of the conditions listed above should apply in terms of problems for trial, so why offer Mr. Libby a plea deal at all? Why not force him to trial -- which a prosecutor is perfectly within his rights to do unless Mr. Libby wants to offer to plead to the entire indictment and take the maximum penalty?

Because there might be something that Fitzgerald wants from him, and through the leverage of these charges -- and the leverage of other charges still hanging tantilizingly out there according to the language of this initial indictment -- Fitz intends to get what he wants through a plea and an agreement of cooperation. (Jeralyn has discussed this a bit as well on TalkLeft here and TChris here.)

Sure, there is a chance of a pardon hanging out there. But from a President with little or no political leverage of his own. So you'd have to stay in the pokey for a coupla years and risk...well, you'd be risking a hell of a lot. Not to be blunt about it, but it's a lot of yourself on the line for a pardon that may never materialize. Not to be able to be with your family. To miss your children, your wife, everything you hold dear. And maybe, just maybe, not live until the pardon is offered, if ever. That is a lot to weigh.

There is also the possibility, held out in the langauge of the indictment, that Fitz could make a case for violation of the Espionage Act or IIPA with a few more facts added into the mix. Jane's covered this very well, so I won't re-hash, but it sure does provide some hefty incentive to flip, now doesn't it?

But here is the big question: Does Fitz want the cooperation from Libby? Or is he using Libby to widen that crack in the foundation -- and go after someone else who was on the brink of spilling what Fitz needs? Someone who is even more afraid of prison than Libby, and a whole lot more craven and less loyal in terms of thinking of "what's in it for me"?

Federal indictments do not have to be as detailed as the one that Libby received yesterday. Prosecutors are only required to bare bones the indictment in order to cover the essential facts. Fitz did a hell of a lot more than that and, to the folks on the inside of the White House, laid out a map to who has been talking a lot and who hasn't. (There is a fantastic article on Booman on this here. Must read.)

And that, my friends, sows an awful lot of dissent, mistrust and all sorts of other nasties within the ranks.

Which often leads to a widening of the cracks, and a crumbling of the wall itself, holding back the whole cover-up in a conspiracy. There is no honor among thieves, and that "take care of myself first" mentality starts to take hold when you think folks around you have been sticking a knife in your back all along and weren't even decent enough to let you know.

It's not just single layer chess in this game, boys and girls, it's multi-dimensional. And I'm beginning to wonder if Libby isn't just the sacrificial pawn in this first round.

Guess we'll see over the next few weeks just how strong the bond is at the White House. That mortar is starting to look awfully crumbly around the edges to me.

For more on plea bargains that is fairly basic, check out:

* ABA Plea Bargain page.

* Wiki Plea Bargain page.