Equal Justice and the Scooter Factor

George, Mr. President, sir….and Scooter (may I call you Scooter?)…..meet Victor Rita. I think y’all have a lot to talk about.

Early this morning, a North Carolina public defender asked the Supreme Court to reconsider its June 21 ruling on the case of his client Victor Rita. (Rita v. U.S.)—a guy whose case is remarkably similar to that of Lewis Libby.

The N.C. public defender, whose name is Thomas Cochran, made his request on the grounds that…the “President’s explanation for nullifying the 30-month prison sentence of former vice presidential aide I. Lewis Libby in the leak case, the new filing argued, ‘directly conflicts with the federal sentencing policy espoused by the Administration and argued vehemently, indeed successfully, by the Executive’s own Solicitor General in this case….'”

(A few minutes ago, I talked to a very nice fellow at the Solicitor General’s office to ask him what his office planned to do in response. He sighed heavily and said he really couldn’t comment on the case since it’s once again before the court.)

Some of the details of the issue have been written up by veteran Supremes watcher, Lyle Denniston, at SCOTUSblog. (And a chapeau tip to Doug Berman at Sentencing, Law and Policy for drawing attention to Denniston’s post.)

Like Libby, 59-year-old Victor Rita was convicted of lying under oath and obstructing justice in a federal criminal investigation. “Rita received a 33-month sentence,” writes Denniston, “at the low end of the Guidelines range; Libby got a 30-month sentence at the low end. President Bush, however, found the Libby sentence to be ‘excessive.’ In the Rita case, the government lawyer argued in the Supreme Court that the 33-month sentence at issue there was reasonable, and a majority of the Court agreed.”

Also like Libby, Rita was an atypical defendant. He’d served 24 years in the Marine Corps, had tours of duty in Vietnam and the first Gulf war, during which time he received over 35 military medals and awards. Unlike Mr. Libby, Mr. Rita’s service to the United States of America left him permanently disabled. But like Libby, Mr. Rita is also a family man with no previous criminal record.

Rita ran afoul of the law when, in North Carolina, the U.S. Attorney’s office began an investigation into whether a local firearms manufacturer was violating federal firearms laws. Victor Rita was asked to testify before a Grand Jury and evidently was not as truthful as might be optimum. Like Scooter Libby.

But since the Federal sentencing guidelines don’t allow for any breaks to be given based on extenuating circumstances, or a past filled with stellar deeds, the Rita case was viewed as a possible landmark challenge to the tyranny of determinate sentencing. But the Supremes shot it down—and the Bush administration pushed hard for the shoot-down through the U.S. Solicitor General.

So after the Libby commutation, Cochran, Victor Rita’s attorney thought that perhaps his client’s case merited a second look. Fair is far, after all.

Otherwise, reasoned Cochran, one might suspect that POLITICS were calling the shots in America, not justice.

“As the Chief Executive,” the petition asserted, “the President is at the country’s helm, tasked with faithfully executing the laws passed by Congress. He and his subordinates are the ones who argue their application before the Judiciary, as this case exemplifies….The President and his subordinates must act with uniformity when executing the laws.”

It added: “Ironically, the President set forth in this [clemency] statement his conclusion that the district court in the Libby case rejected ‘the consideration of factors that could have led to a sentence of home confinement or probation.’ This was the precise, nearly verbatim, argument made by [Rita] in this case, and opposed by the President’s subordinate, the Solicitor General.”

This morning’s petition also pointed out (as mentioned above) that Mr. Rita’s attempts to challenge his sentence were “opposed by the Executive Branch every step of the way.”

The text of the petition may be found here.