Kevin Roderick says that it’s “[p]retty clear the Times was working on a story about the Villaraigosa affair but just got beat by the Daily News.”

You have to wonder if these folks ever get tired of getting beaten out on local stories. As I noted the other day, the L.A. Weekly does this on a regular basis, and now the Daily News has done it.

P.S. There’s one person who has to be loving this even more than you and I are: Rocky Delgadillo. It must be great to have this story break the very day that the L.A. Times calls for you to resign . . .

Stu707 points out an error in an L.A. Times article about the length of Scooter Libby’s sentence. The article says:

Just last week, the Supreme Court upheld a 33-month prison sentence for a decorated Army veteran who was convicted of lying to a federal agent about buying a machine gun. The veteran had a record of public service — fighting in Vietnam and the Gulf War — and no criminal record. But Justice Department lawyers argued his prison term should stand because it fit within the federal sentencing guidelines.

Not so.

The case referred to is United States v. Rita. Rita contested his 33-month sentence for lying to a federal grand jury about buying a kit that allegedly could be used to make a machinegun. Here is the passage from the Supreme Court’s decision that disproves the L.A. Times‘s characterization of defendant Rita as having “no criminal record”:

Rita was convicted in May 1986, and sentenced to five years’ probation for making false statements in connection with the purchase of firearms. Because this conviction took place more than 10 years before the present offense, it did not count against Rita [for purposes of the Sentencing Guidelines]. And because Rita had no other relevant convictions, the Guidelines considered him as having no criminal history points. Ibid. The report consequently places Rita in criminal history category I, the lowest category for purposes of calculating a Guidelines sentence.

The article could have said that that the Sentencing Guidelines treated Rita as if he had no criminal history. But it’s wrong to say that he had no criminal history.

I’m writing the Readers’ Representative right now. The correction on this one needs to be swift.

This is a significant point. As I pointed out recently with respect to this article:

It’s misleading to compare Libby’s sentence to that of all other defendants who committed the same crime. In the criminal justice system, several factors are used to determine the appropriate sentence, and among the most critical factors is the defendant’s criminal record (or lack thereof). By all accounts, Scooter Libby’s criminal record before this trial was spotless. So the relevant question is not what the average sentence is, but what the average sentence is for someone with no criminal record.

Given that Rita had a criminal record, the L.A. Times does not prove up even one single example of someone with no previous record who went to prison for obstruction. It may well have happened — but they haven’t proved it. Nor does The Times provide statistics on the average sentence for defendants with no criminal record.

I still believe Scooter Libby should have served time in custody. But the L.A. Times has not proved that his sentence was below the average for someone with no criminal record. By their own statistics, it appears that 1/4 of the defendants convicted of obstruction did not go to prison. I bet those tended to be the ones with no record or minimal records. The Times should do a better job of explaining that.

L.A. Mayor Antonio Villaraigosa and Telemundo anchor Mirthala Salinas have publicly admitted having an affair. Which can mean only one thing: it’s caption contest time!

Leave your entries in the comments below. Winners will be announced on Friday.

From the L.A. Times:

“He sticks to his guns because of his commitment to a notion of leadership that says leaders don’t waiver,” said Bruce Buchanan, a University of Texas political scientist who has followed Bush’s career.

This reminds me of a story my wife told about taking a plea from a minor in juvenile court. When prosecutors take pleas, they must advise the defendants of their rights (such as the right to a jury trial, to confront and cross-examine witnesses, to remain silent, and to put on a defense), and ask them if they want to give up those rights to enter the plea. Some D.A.’s ask if the defendants want to “waive and give up” those rights. My wife asked that question, and the minor lifted up his hand and literally waved — and gave up his rights.

Bye-bye, rights!

This is why I just ask defendants if they “give up” their rights. For one thing, I hate redundancy, and for another, I don’t like to repeat myself. So if I have to choose between asking them if they will “waive” their rights, or if they will “give up” their rights, I’m going with the one I know they’ll understand.

That’s my position, and I will never waiver.

The L.A. Times runs this correction:

School integration: A Section A article Friday about the Supreme Court ruling on racial diversity in public schools quoted Chief Justice John G. Roberts Jr. as writing in the majority opinion: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That quote was from a section of the decision that did not receive a majority of votes from the justices.

I told you about this error here.

Should somebody who commits perjury and obstruction of justice serve absolutely no prison time at all — not even one day?

The Bush Administration often has a different view, reports the L.A. Times:

[R]ecords show that the Justice Department under the Bush administration frequently has sought sentences that are as long, or longer, in cases similar to Libby’s. Three-fourths of the 198 defendants sentenced in federal court last year for obstruction of justice — one of four crimes Libby was found guilty of in March — got some prison time. According to federal data, the average sentence defendants received for that charge alone was 70 months.

It’s misleading to compare Libby’s sentence to that of all other defendants who committed the same crime. In the criminal justice system, several factors are used to determine the appropriate sentence, and among the most critical factors is the defendant’s criminal record (or lack thereof). By all accounts, Scooter Libby’s criminal record before this trial was spotless. So the relevant question is not what the average sentence is, but what the average sentence is for someone with no criminal record.

But it appears that, in at least one case found by The Times, the Bush Administration did not consider a spotless criminal record to be a “get out of prison free” card [UPDATE: Actually, The Times gets the facts wrong. See UPDATE below, and thanks to Stu707]:

Just last week, the Supreme Court upheld a 33-month prison sentence for a decorated Army veteran who was convicted of lying to a federal agent about buying a machine gun. The veteran had a record of public service — fighting in Vietnam and the Gulf War — and no criminal record. But Justice Department lawyers argued his prison term should stand because it fit within the federal sentencing guidelines.

[UPDATE: Actually, this defendant did indeed have a criminal record. It just didn’t count for purposes of the Sentencing Guidelines. See this post for further details.]

Libby’s sentence fit within the guidelines as well. And, ironically, the Bush Administration has been pushing legislation that, according to a speech given by AG Gonzales, would “restore the binding nature of the sentencing guidelines so that the bottom of the recommended sentencing range would be a minimum for judges, not merely a suggestion.”

Yet Bush commuted Libby’s sentence before he had served even a single day. Like so many other aspects of this commutation, this was unusual, as Presidents typically commute sentences after the prisoner has served most of it:

Sentencing experts said Bush’s action appeared to be without recent precedent. They could not recall another case in which someone sentenced to prison had received a presidential commutation without having served any part of that sentence. Presidents have customarily commuted sentences only when someone has served substantial time.

“We can’t find any cases, certainly in the last half century, where the president commuted a sentence before it had even started to be served,” said Margaret Colgate Love, a former pardon attorney at the Justice Department. “This is really, really unusual.”

By commuting Libby’s sentence before he started serving it, Bush has trivialized the crimes of perjury and obstruction of justice. If Bush thought Libby’s sentence was too harsh, he could have allowed Libby to serve what he believed to be an appropriate amount of time — and commuted the sentence then. But apparently, even one day in custody was too much for Bush’s pal.

Keep in mind that Scooter Libby would undoubtedly have served his time at a minimum security facility. I have visited the federal minimum security prison at Lompoc, California, and while it’s not a “country club,” it’s not what most people think of when they think of “prison,” either. Most of the prison is outside. There are no walls or fences; you could simply walk out of prison if you wished. (Prisoners don’t, typically, because the consequences of getting caught include a transfer to the maximum security facility.) Inmates play softball, milk cows, and sleep in dormitory-style accomodations. I’m not saying it looks like a fun life, because it doesn’t. But it’s not 23 hours a day locked in a jail cell with someone named Bubba.

In California, misdemeanor defendants face mandatory jail time for repeat offenses of driving on a suspended license — one of the lowest-level crimes on the books. And they go to L.A. County Jail — a far less pleasant place than minimum security federal prison.

Paris Hilton went to jail. Scooter Libby couldn’t serve even one day?

The other day I told you about how the Sydney Morning Herald had become the latest media outlet to get suckered by Professional Man on the Street Greg Packer. Well, they’ve figured it out now:

Greg Packer, the first man in line at Apple’s flagship store in New York is now the proud owner of a 4GB iPhone. But because he hasn’t signed up to a plan, the phone lies dormant.

Packer, who we interviewed last week shortly after he began his 109-hour vigil outside the iconic Fifth Avenue Apple Store, turns out to be something of a professional line sitter.

Really?! You don’t say!

According to reports, the retired highway maintenance worker has been widely quoted over the years as a member of the public in articles and television broadcasts stretching back to 1995.

And . . . uh . . . we at the Sydney Morning Herald didn’t know that.

Here’s my favorite part:

Although Packer wasn’t able to tell us how the phone worked, he did say the experience of being first in line was like being a celebrity – “like Bono” – in a crowd. “It was like being a god,” he said in a telephone interview.

Heh. Although after 109 hours without a shower, he was probably kind of a smelly god.

Orin Kerr responds to the argument that Fitzgerald should have stopped his investigation in its tracks upon learning Armitage had leaked Valerie Plame’s name and employment status:

I don’t find this argument persuasive. To see why, imagine yourself in Fitzgerald’s shoes. Here are the relevant facts as you know them (reconstructed as best I can — please let me know if these facts are misleading or wrong and I’ll correct them). You’ve been appointed a special prosecutor to investigate intentional leaks to the media of the covert identity of a CIA agent. Early on in the investigation, you learn that one high-level political official has admitted that he leaked Plame’s identity to one reporter; he claims that it was an accident, as he didn’t realize the agent’s status was covert. You also know that a lot of other reporters were leaked the same information, but you don’t know who was behind those other leaks. The reporters won’t talk: They insist on going to jail rather than revealing their sources.

If you were Fitzgerald, would you close up shop at that point? Would you conclude without even speaking to other potential witnesses that the one high-level official was in fact responsible for all the leaks, and that he acted accidentally and entirely on his own? Or would you at least want to dig deeper to see if the story checks out?

In that setting, I don’t understand what was so overzealous about wanting to talk to Libby. An experienced prosecutor is going to wonder if the guy who rushes forward and claims the leaks were an accident is telling the truth. Maybe he is. But you don’t want to close up shop and then read in someone’s memoirs ten years from now that the official (Armitage) was the fall guy who came up with the “accident” story to cover up something — and that he got away with it because the naive prosecutor bought the story and closed the investigation without even verifying the facts. Or maybe someone was using Armitage as an unknowing intermediary, making his story accurate from his perspective but only part of the picture. Or maybe there were other leakers — either more leakers to the one reporter (Novak) who reported to the public about Plame, or other leakers to the other reporters. None of these are certainties, of course. But it is really so unreasonable to look into them?

My only quibble with this is that I don’t necessarily accept the assumption of Plame’s “covert” status. It has been reported that she was covert, but this area still seems murky to me.

But I fully agree with Prof. Kerr on the idea that it would have been irresponsible for Fitzgerald to simply abandon the investigation upon hearing from one person who said he had leaked. Indeed, I have made this exact argument before:

Another point many of you seem to be making: Fitzgerald knew that Armitage was the original leaker. Therefore, the second he learned that, he should have brought his investigation to a grinding halt — immediately.

I don’t follow this logic either. How is Fitzgerald supposed to know that nobody else was involved in any crimes, just because Armitage says he was the leaker? If Armitage says he did this on his own, must Fitzgerald take Armitage’s word for it?

As I said in this post:

I don’t understand why people fault Fitzgerald for being thorough. Libby was prosecuted in part for lies that he told law enforcement before Fitzgerald was even appointed. According to the partisan Republicans, Fitzgerald should have simply overlooked those lies, and/or not dug deeper. I’m not convinced by this argument.

Usually, when people lie, there’s a reason. Libby told lies before Fitzgerald was appointed, and regardless of whether someone else was taking the fall, Fitzgerald was justified in investigating why Libby lied, to see if there were any higher-level officials behind the leak.

And were there? We still don’t know. But President Bush’s highly unusual action in commuting Libby’s sentence before he served even one day in custody has already fueled speculation that Libby is being paid off for his loyalty. The cynics note that keeping Libby’s conviction in place insulates him from being questioned further about the possible involvement of higher-level officials.

All of this speculation may not be true, but it’s going to hurt Republicans going into the 2008 election regardless. And Republicans have one person to blame for that — and it isn’t Pat Fitzgerald. It’s Scooter Libby. If he hadn’t lied and obstructed justice, we wouldn’t be in this mess.