june 15, 2007: mr. libby's "emergency" motion for stay of sentencing order

or, "let's get specific, shall we?"

call me a wonk, but i woke up this
morning wondering what the d.c.
circuit court of appeals court handbook
might have to say about mr. libby's chances
of being granted an "emergency" motion of
any sort -- during the regularly-planned
summer recess in that court in d.c., and
yet still before his report-date -- now
perhaps only about four to six weeks off. . .

so -- what the hey! -- i went and actually
read some of it. . . ooh, fascinating stuff!

not.so.much. -- unless, of course, one is
keenly-interested in guessing at what's
next for mr. libby, and for lawrence s. robbin's
now very-likely scrubbed
summer-vacation plans.

well -- let's start on page 33 -- with
sections VIII b., and c.

but allow me to note at the outset, that mr. libby's motion will not fall among the enumerated kinds of statutory emergency appeal motions in section III j. of the handbook (as he seeks a post-conviction
release, not a pre-trial release -- a monumental
difference in terms of the presumptions involved),
for which there are easy, ready-made answers -- no,
he and mr. robbins are relegated to the general
rules of sections VIII b., and c.:

B. MOTIONS TO EXPEDITE CONSIDERATION
OF THE APPEAL

(See 28 U.S.C. § 1657; D.C. Cir. Rules 27(f), 47.2.)

The Court accords expedited consideration to a case when required to do so by statute, or when the Court grants a motion for expedition. Circuit Rule 47.2(a) lists many of those statutory provisions that mandate expedited appellate review:

18 U.S.C. §§ 3145, 3731; 28 U.S.C. chapter 153; and 28 U.S.C. § 1826. See supra Part III.J. Whenever a party takes an appeal pursuant to one of these provisions, counsel must advise the Clerk’s Office of this Court immediately both orally and by letter. The district court Clerk will transmit the notice of appeal and certified docket entries forthwith to this Court, so that the appeal can be docketed and an expedited briefing and argument schedule set. Counsel must advise the Clerk of this Court in writing of counsel's arrangements to order any necessary portions of the transcript on an expedited basis, and make arrangements with the district court Clerk to send the record promptly to this Court.

When expedition is not required by statute, counsel seeking expedited review must file a motion. Like other procedural motions, motions to expedite must be filed within 30 days of the date the case is docketed.

Because of the size of the Court's caseload, and the calendaring of cases months in advance of hearing, the Court grants expedited consideration very rarely. The movant must demonstrate that the delay will cause irreparable injury and that the decision under review is subject to substantial challenge. The Court also may expedite cases in which the public generally, or in which persons not before the Court, have an unusual interest in prompt disposition. The reasons must be strongly compelling.

When the Court disposes of a motion for stay or injunction pending appeal, it may at the same time expedite the case to minimize possible harm to the parties or the public. In moving for a stay or injunction pending appeal, counsel should address the appropriateness of expediting the appeal if a stay is entered.

An order granting expedition does not automatically shorten the briefing schedule. When time is a critical consideration, counsel may wish to propose a specific date for the hearing and to move for an abbreviated briefing schedule. . .

C. MOTIONS FOR RELEASE PENDING APPEAL

(See 18 U.S.C. § 3143; Fed. R. App. P. 9(b); D.C. Cir. Rule 9(b).)

A defendant who has filed a notice of appeal from a criminal conviction may apply for release while the appeal is pending. The defendant must apply first to the district court for release. If the district court denies the application, or imposes conditions of release, the defendant may then move this Court for release or for modification of the conditions. A new notice of appeal is not necessary. Circuit Rule 9 sets forth the required contents of this motion. The motion may not exceed 20 pages without leave of the Court, it must be prepared in conformity with Federal Rule of Appellate Procedure 27(d)(1) and (2), and it must be served on opposing counsel. Staff attorneys give priority to motions for release pending appeal and send them to the special panel for disposition as soon as a recommendation is prepared.

The criteria for release are specified by statute and rule. See Fed. R. App. P. 9. The burden is on the defendant to show that he or she will not flee or pose a danger to others if released, and that the appeal is not for purposes of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

If this Court denies the motion for release, the defendant may seek Supreme Court review by submitting an application for release on conditions to the Circuit Justice for the District of Columbia Circuit, who is the Chief Justice of the United States. Counsel must file the application with the Clerk of the Supreme Court and serve the opposing party pursuant to Rule 29 of the Rules of the Supreme Court. Such motions are rarely granted.

now, let's look at the timing, and
calendars, on briefs -- section IX a.1.:

1. Timing

Normally, the Clerk's Office establishes a briefing schedule after the case has been screened and classified by the Legal Division, and after any pending motions in the case have been resolved. In most cases designated as "Regular Merits" cases, counsel receive a single order fixing the date for oral argument and setting the briefing dates back from the oral argument date, with the final brief usually due at least 50 days before the case is to be heard.

In general, the appellee's or respondent's brief is due 30 days after that of the appellant or petitioner.

A reply brief, is due 14 days later. To avoid repetition of factual statements or legal arguments made in the principal briefs, the Clerk's Office will stagger the briefing so that intervenors and amici curiae file their briefs 15 days after the brief of the party they support. . .

though mr. robbins has yet to file any appellate
papers on behalf of mr. libby -- and thus, we
don't really know much, yet -- the
likely upshot of all of this is that it is
almost impossible for scooter to avoid jail-time.

now to be fair, the briefing schedule,
especially the "final brief due at
least 50 days before the matter is
heard. . ." -- a provision to give
the appellate panel time to reflect
carefully upon the briefs -- will be
abreviated, if mr. robbins is granted
an expedited review. . . but the scant
number of business days on the calendar
between now, and mr. libby's report date
would seem to infer that even a rarely-granted
"expedited review" will occur too
late, for mr. libby to avoid some prison-time. . .

mr. robbins could surprise, by taking some
truly odd-ball path through this maze, but
it seems likely, even on the tightest of
time-frames outlined above, mr. libby's
report date will precede any order for
his release, by at least a few weeks. . .

more -- as more information becomes available. . .