Andy writes, in part, “Applying that statute, Judge Walton was required to deny bail pending appeal unless he thought Scooter’s appeal was likely to succeed. But, of course, if he thought there had been an error grievous enough to warrant reversal, he wouldn’t have sentenced Scooter in the first place — he’d have set aside the jury verdict on his own and either acquitted him or ordered a new trial.”
Of course, federal trial judges do not throw every convicted defendant in prison pending appeal. Why is that? Although they obviously believe they ruled properly on matters of law, they are willing to let other judges — judges who will hear the appeal anyway — review the challenged aspects of the case first, especially where you have a defendant who is neither dangerous nor a flight risk. Andy suggests Walton did not have that option. Clearly he did. The process isn’t as clear-cut as suggested. I believe the appointments-clause challenge is not frivolous, regardless of the ultimate outcome. Even Walton needed 31 pages to refute it. And his reliance on Morrison v. Olson seems misplaced for reasons I will argue in an amicus brief Landmark will likely be filing.
There are legitimate reasons to question Walton’s judgment, in my view, including even his gratuitous comments about the law professors who had the audacity to file a brief in support of Libby. I have done my fair share of appellate work, and Walton’s cheap shots would be worthy of at least a footnote in any appellate brief that I filed.
I don’t mean to joust with my friend Andy, as we have throughout this case, but I am truly troubled by the prosecution and imprisonment of this man.