November 29, 2006
Libby case delay possible
Monday, the Special Prosecutor filed an interlocutory appeal in the Libby case under the special provisions of the Classified Information Procedures Act (CIPA) respecting the trial court's ruling on what the appropriate test is for providing Libby with classified material for his defense. As a result, a very substantial delay in resolving the case is possible.
§ 7. Interlocutory appeal(a) An interlocutory appeal by the United States taken before or after the defendant has been placed in jeopardy shall lie to a court of appeals from a decision or order of a district court in a criminal case authorizing the disclosure of classified information, imposing sanctions for nondisclosure of classified information, or refusing a protective order sought by the United States to prevent the disclosure of classified information.(b) An appeal taken pursuant to this section either before or during trial shall be expedited by the court of appeals. Prior to trial, an appeal shall be taken within ten days after the decision or order appealed from and the trial shall not commence until the appeal is resolved. If an appeal is taken during trial, the trial court shall adjourn the trial until the appeal is resolved and the court of appeals(1) shall hear argument on such appeal within four days of the adjournment of the trial,(2) may dispense with written briefs other than the supporting materials previously submitted to the trial court,(3) shall render its decision within four days of argument on appeal, and
(4) may dispense with the issuance of a written opinion in rendering its decision. Such appeal and decision shall not affect the right of the defendant, in a subsequent appeal from a judgment of conviction, to claim as error reversal by the trial court on remand of a ruling appealed from during trial.
JOM commenter cboldt has been watching this development and on his own website notes that it is possible this appeal may substantially delay the case.
The timeline for resolution of the pre-trial interlocutory appeal is indefinite, and depends in part on the workload at the Circuit Court for the District of Columbia.In the case of James H. Giffen in the Southern District of New York, the government took an interlocutory CIPA Section 7 appeal to the 2nd Circuit on October 25, 2005.Invoking the interlocutory appeal provision contained in §7 of CIPA, the government appealed the district court's decision. Government briefs filed with the U.S. Court of Appeals for the Second Circuit stated that prosecutors may be forced to drop the case against Mr. Giffen because of Judge Pauley's decision allowing Mr. Giffen to present a public authority defense.The government asserted that many of the highly classified documents sought by the defense were irrelevant and that Mr. Giffen's review of the top-secret information would jeopardize national security interests and place the government in an "untenable" position. The defense responded simply that Mr. Giffen believed himself to be working for the CIA and other U.S. government agencies and, therefore, is entitled to assert a public authority defense.
Oral argument in that appeal was heard on Jan. 25, 2006, and as of October 26, 2006, the 2nd Circuit had not rendered its decision.