In Law, what is a "close question"?

[BarnOwl]

In an an article at…

http://www.smirkingchimp.com/node/8131

…about Libby’s efforts to stay out of jail until his appeals are exhausted, this expression has popped up a couple of times and I’m still reading it. No doubt it’ll appear again.

It’s an interesting piece, by the way, so you might want to read it yourselves.

[BarnOwl]

BTW, the article was originally written by John Dean for…

http://writ.news.findlaw.com/dean/20070615.html

and posted at the Smirking Chimp with permission.

[Gadarene]

Depends on the circuit and the statutory standard.

[BarnOwl]

@Gadarene

Depends on the circuit and the statutory standard.

The article begins…

“On June 14, U.S. District Court Judge Reggie Walton rejected the motion filed by Scooter Libby, asking to remain out of prison while he files his appeal, seeking to overturn his conviction for false statements, perjury and obstruction of justice relating to the investigation undertaken by Special Counsel Patrick Fitzgerald of the exposure of the identity of covert CIA agent Valerie Plame. A week earlier, Judge Walton had stated that he did not believe there was any legal basis for Libby to remain free on bond under current law. This week, he did not change his mind.”

…and later on said…

It is remarkably aggressive to add such a laundry list to a brief – unless every one of those high-profile defendants had raised issues similar to those Libby planned to present on appeal. Clearly, they had not, and thus the ploy backfired.

So too did the filing of an amicus brief by a dozen law professors. Frankly, it was a weak effort, and I was surprised that all who signed on indeed had done so. I have to wonder if they were each given a copy before it was submitted. The brief addressed Libby’s claim that he should remain free during his appeal because it was "a close" question of law whether or not Special Counsel Patrick Fitzgerald’s appointment was constitutional.

{emphasis added)

Hope this helps

[Gadarene]

What pravnik said.

[pravnik]

The federal statute regarding release pending appeal is:

(b) Release or Detention Pending Appeal by the Defendant.—
(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds—
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142 (b) or © of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

Basically, Scooter has to prove that he’s not a flight risk or danger to the community, that his appeal presents a “substantial question,” and that the appeal will likely result in a favorable result. The D.C. Circuit, among others, has defined a substantial question as a “close question,” one that could go either way.

And on preview…man, you gotta be quick around here!

[BarnOwl]

@Gadarene

The United States Code requires that a federal criminal defendant “who has been found guilty of an offense and sentenced to a term of imprisonment” be detained during the pendency of his appeal, unless the Court finds (1) that the person does not pose a flight risk or a danger to the community; and (2) “that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in . . . reversal [or] an order for a new trial.” 18 U.S.C. § 3143(b)(1). Thus, under § 3143(b), “[t]he law has shifted from a presumption of release to a presumption of valid conviction,” United States v. Perholtz, 836 F.2d 554, 556 (D.C. Cir. 1988) (citation omitted), and the defendant bears the burden of rebutting this presumption and “demonstrat[ing] that he has a substantial question to present [upon appeal] before he may be admitted to bail,” United States v. Schoffner, 791 F.2d 586, 589 (7th Cir. 1986); see United States v. Colon Berrios, 791 F.2d 211, 214 n.4 (1st Cir. 1992) (stating that “*n enacting § 3143[(b)], Congress placed the burden as to all elements bearing on whether to grant bail pending appeal on [the] defendant”) (citations omitted).

In United States v. Perholtz, the District of Columbia Circuit held that an issue is “substantial” for the purposes of § 3143(b) if it “is a close question or one that very well could have been decided the other way.” Perholtz, 836 F.2d at 555 (internal quotation marks and footnote omitted); see also, e.g., United States v. Day, 433 F. Supp. 2d 54, 55 (D.D.C. 2006) (applying the Perholtz standard); United States v. Quinn, 416 F. Supp. 2d 133 (D.D.C. 2006) (same). In so holding, the Perholtz Court considered “[t]wo differing standards for determining substantiality [that had] been adopted in the various circuits,” choosing to adopt the “more demanding” of the two standards “because it appears better to accord with the expressed congressional intent to increase the required showing on the part of the defendant.” Perholtz, 836 F.2d at 555-56.

Hope that helps.

Ah yes. Thank you.

[BarnOwl]

@pravnik

The federal statute regarding release pending appeal is:
Basically, Scooter has to prove that he’s not a flight risk or danger to the community, that his appeal presents a “substantial question,” and that the appeal will likely result in a favorable result. The D.C. Circuit, among others, has defined a substantial question as a “close question,” one that could go either way.

(Technicolor added)
Thank you very much pravnik, you answered my question

And on preview…man, you gotta be quick around here!

Yup. You gotta be!!