Patterico's Pontifications


L.A. Times Flubs Basic Fact on Story About Length of Libby Sentence

Filed under: General — Patterico @ 11:28 am

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.

20 Responses to “L.A. Times Flubs Basic Fact on Story About Length of Libby Sentence”

  1. I couldn’t agree with you more about the need for a swift correction. Come on, we’re talking about the LA Times. There is no chance that they will be swift or correct. It would undercut their argument that punishing the wrong guy for not leaking lame Plame’s name, should be harsh. Libby is the pinata standing in Bush’s place, they want to beat this guy hard.

    get2djnow (ec4c9b)

  2. Good catch, Stu.

    At this rate, someone may have to quit their day job and work full-time to catch all the errors in LA Times’ articles.

    DRJ (31d948)

  3. Stop trying to make nice with the mouth breathers of your site, Patterico.

    One other question, when Radley Balko brought up your career as a prosecutor to attack one of your positions on a case, you went apeshit. And yet, the moron Bush-loving contingent on your site has now accused you over and over again of only taking the position you do regarding Scooter Libby because you are a prosecutor.

    So, why do you give these morons a pass when it comes to dragging your career into the discussion and not those with whom you disagree politically?

    Pssshaw (ece2f7)

  4. Can’t we just put Wilson in jail instead? I mean if lying in this non-case is a crime, what is repeatedly lying to undercut one’s own country in wartime worth?

    Kevin Murphy (0b2493)

  5. Or maybe just Psshaw.

    Kevin Murphy (0b2493)

  6. Emailed to the Baltimore Sun’s Public Editor:

    To: Paul Moore
    Subject: Correction merited on 7/4/07 story on Libby sentence

    Today’s Page 3A story “Libby sentence met guidelines” contains a significant error. L.A. Times reporters Schmitt and Savage compare Libby’s 30-month prison term to that of a 33-month sentence dealt to a decorated Army veteran who “had no criminal record.”

    This is incorrect. Victor Rita was convicted in May 1986 of making false statements in connection with the purchase of firearms. Because more than ten years had passed since this conviction, it did not count against Rita for purposes of the Sentencing Guidelines.

    The relevant facts and citations are set forth in this post at the web-log

    Unfortunately, this would not be the first instance where a story by reporter David Savage has left readers with a fairly one-sided view of a contentious story. Even a cursory search of the referenced web-log will turn up numerous other occasions.

    I hope that after investigating, you will correct the misstatement in today’s story.

    I will follow up with Public Editor Moore’s response, if any. He has a mixed record in that regard.

    AMac (7b42d4)

  7. After we lock up Wilson, Plame can be next, or is anyone going to say she didn’t lie?

    #3: Wow patterico, you’re commenters are getting to be almost koslike here.

    Lord Nazh© (899dce)

  8. Another possible flub by the LAT:

    Today the LAT said:

    hree-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.

    I’d sure like to see their source for that 70-month number. This is just a gut feeling (albeit one based on 5 years as a federal prosecutor and 6 as a federal defense lawyer), but that sounds much too high as an average. If I were a betting man, I’d bet they screwed up and cited the statistic for the average sentence of someone who received the obstruction of justice sentencing enhancement, a sentencing guidelines factor that can be applied to any federal sentence.

    We’ll see.

    Ex-Fed (82d8fa)

  9. If only Scooter had lied by claiming he didn’t remember.

    If only he had chosen a lawyer from a firm that didn’t defend GITMO terrorist-detainees in a country where the disloyal opposition works daily to bury the reality of 911 – along with every American hero, past and present.

    If only the self-appointed government watchdogs and their judicial peers had followed this precident: granted legitimacy / respect / authority and power to influence national policy (though their brains were clearly riddled with holes) to this pack of amitious rats, their peers:

    Number of times that Clinton figures who testified in court or before Congress said that they didn’t remember, didn’t know, or something similar.

    Bill Kennedy 116
    Harold Ickes 148
    Ricki Seidman 160
    Bruce Lindsey 161
    Bill Burton 191
    Mark Gearan 221
    Mack McLarty 233
    Neil Egglseston 250
    Hillary Clinton 250
    John Podesta 264
    Jennifer O’Connor 343
    Dwight Holton 348
    Patsy Thomasson 420
    Jeff Eller 697

    FROM THE WASHINGTON TIMES: In the portions of President Clinton’s Jan. 17 deposition that have been made public in the Paula Jones case, his memory failed him 267 times. This is a list of his answers and how many times he gave each one.

    I don’t remember – 71
    I don’t know – 62
    I’m not sure – 17
    I have no idea – 10
    I don’t believe so – 9
    I don’t recall – 8
    I don’t think so – 8
    I don’t have any specific recollection – 6
    I have no recollection – 4
    Not to my knowledge – 4
    I just don’t remember – 4
    I don’t believe – 4
    I have no specific recollection – 3
    I might have – 3
    I don’t have any recollection of that – 2 I don’t have a specific memory – 2
    I don’t have any memory of that – 2
    I just can’t say – 2
    I have no direct knowledge of that – 2
    I don’t have any idea – 2
    Not that I recall – 2
    I don’t believe I did – 2
    I can’t remember – 2
    I can’t say – 2
    I do not remember doing so – 2
    Not that I remember – 2
    I’m not aware – 1
    I honestly don’t know – 1
    I don’t believe that I did – 1
    I’m fairly sure – 1
    I have no other recollection – 1
    I’m not positive – 1
    I certainly don’t think so – 1
    I don’t really remember – 1
    I would have no way of remembering that – 1
    That’s what I believe happened – 1
    To my knowledge, no – 1
    To the best of my knowledge – 1
    To the best of my memory – 1
    I honestly don’t recall – 1
    I honestly don’t remember – 1
    That’s all I know – 1
    I don’t have an independent recollection of that – 1
    I don’t actually have an independent memory of that – 1
    As far as I know – 1
    I don’t believe I ever did that – 1
    That’s all I know about that – 1
    I’m just not sure – 1
    Nothing that I remember – 1
    I simply don’t know – 1
    I would have no idea – 1
    I don’t know anything about that – 1
    I don’t have any direct knowledge of that – 1
    I just don’t know – 1
    I really don’t know – 1
    I can’t deny that, I just — I have no memory of that at all – 1


    Re. Scooter Libby’s “perjury” vs. the modern habit of “justice” as a clever gotcha game of linguistic tricks and legalistic loopholes (someone shoot the damn, cowardly, dishonest Sphinx, please) – injustice – claiming not to recall, what would a true memory expert, or, better yet, a wise judge say?

    Does the DOJ even know we’re at war?

    below the quagmire (e14d1c)

  10. Pat, thanks for asking the LAT to correct their story. I’m sure none of us will hold our breath waiting for the correction.

    Thanks, DRJ for your kind words.

    Stu707 (5b299c)

  11. I fully admit I’m a little slow, as I don’t properly understand the correction.

    How is it “a significant point”, connected to what you wrote in your previous post, if it had no bearing on Rita’s sentence? Is it that sentencing has one set of admissibility rules while upholding/overturning sentences has another?

    Nels Nelson (4a3ac4)

  12. Does the DOJ even know we’re at war?

    Huh? That’s a non sequiter at best.

    aphrael (e0cdc9)

  13. Patterico, I was wondering what you thought of the arguments here:
    NRO on Libby and Sentencing Guidelines

    “The U.S. Probation Department (which always makes a recommendation to the judge based on its own guidelines calculation) agreed with Libby’s counsel that the judge should find there was no criminal offense; thus, it recommended a sentence of no more than 10-16 months, which left a significant chance of probation—meaning no jail time at all. Judge Walton, to the contrary, agreed with Fitzgerald that when the guidelines say criminal offense, they mean the theoretical offense the prosecutor was looking into. Consequently, Judge Walton imposed a sentence of 30 months.”

    Dave (6001a6)

  14. Couple questions for the legal minded. My understanding of the facts is that (1) Plame was not a covert operative and so there was no crime in outing her, (2) Dick Armitage outed her, (3) Fitzgerald knew both before questioning Libby, (4) the Judge denied the defense the right to enter evidence that no crime was committed and Libby was not the leaker. Please correct me if I’m wrong on any count. My questions are (1) isn’t it improper for a prosecutor to impute a motive that he knows to be wrong (Libby lied to protect the leaker) and (2) isn’t it improper for a judge to deny the defense the right to challenge that motive by presenting evidence of the “non-crime” and Armitage’s admission? As a layman this seems terribly “unjust”, especially since jurors were seen on TV saying something like they had to hold someone to account for the leak.

    notalawyer (27f927)

  15. Fitzgerald is no better than Nifong and needs to be treated accordingly. Notwithstanding the libs masurbatory fantasies, we don’t live in a dictatorship and should NOT lie down like cowards in the face of tyranical scum like Fitz

    TheManTheMyth (6e8923)

  16. Follow-up to comment #6, above. I had contacted the Baltimore Sun‘s Public Editor, requesting that he correct the same Schmitt/Savage error about which Patterico wrote the LAT Readers’ Representative.

    No acknowledgement, and no correction.

    AMac (a85f51)

  17. #11 Nells
    Yes, your understanding of the distinction is correct. In Rita, the JUDGE was prohibited by statute from considering Rita’s 1986 conviction. The PRESIDENT, however, cannot be constrained statutorily with respect to what facts he can/cannot consider in commuting sentences. The PRESIDENT could argue that both JUDGES acted within the law (keep in mind that the president’s statements about Libby’s sentence did not make specific legal criticisms of Judge Walton’s rulijng) but could still argue that Libby’s sentence was harsh in his (the president’s) view because Libby lacked a criminal record while Rita had one.

    Patrick (d7018c)

  18. In Rita, the JUDGE was prohibited by statute from considering Rita’s 1986 conviction.

    A statute that the Supreme Court has ruled advisory.

    Patterico (2a65a5)

  19. Good point, but was Rita decided before Booker? If Rita was sentenced after Booker, your point strengthens the president’s argument because it eliminates the out that Rita’s criminal conviction in 1986 didn’t have relevance because of the statute. If Rita was sentenced after Booker, the president could say something like,
    “Look, this guy Rita had a criminal record. The sentencing guidelines are advisory, so the judge was free to consider it, and, though I’m not bound by any statute regarding what I can consider as a commutation factor, I considered this record, too, as the Supreme Court ruled judges can, so that distinguishes Rita from my commutation of Libby”.
    So, was Rita decided after Booker? By that, I mean to ask whether he was sentenced after that case.

    Patrick (d7018c)

  20. Of course, the Rita issue is PR and nothing more. Rita’s lawyer has no shot at getting SCOTUS to rehear the case. The president’s statement is about as meaningful as if he’d said that he commuted Libby’s sentence because his psychic told him to do it.

    Patrick (d7018c)

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