Posted on 02/21/2018 9:07:57 AM PST by SeekAndFind
As their clients awaits sentencing on a charge of lying to the FBI, a federal judge delivered some good news to attorneys for former national security adviser Michael Flynn. He order special counsel Robert Mueller to turn over any “exculpatory evidence” he has in the criminal case to the ex-Trump official’s defense team.
In an order signed Friday, U.S. District Judge Emmet Sullivan said federal prosecutors must timely provide Flynn’s defense team with “any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment.”
Sullivan’s order did not come due to any known request from the defense team and he did not explain his rationale for releasing it. Instead, he said only that the order was issued “sua sponte,” in other words, at his own volition.
In his four-page order, Sullivan cites Brady v. Maryland, in which the Supreme Court held that the government has a continuing obligation to produce all evidence required under the Federal Rules of Criminal Procedure.
“This government responsibility includes producing, during plea negotiations, any exculpatory evidence in the government’s possession. The government is further directed to produce all discoverable evidence in a readily usable form,” Sullivan said.
“Finally, if the government has identified any information which is favorable to the defendant but which the government believes not to be material, the government shall submit such information to the Court for in camera review,” the judge added.
Flynn was forced to resign as national security adviser in February 2017 after media reports revealed he had lied to Vice President Mike Pence about his conversations with then-Russian ambassador Sergey Kislyak during the transition, saying the two had not discuss Obama-era sanctions against the Kremlin.
Flynn pleaded guilty last year to one count of lying to FBI agents about his contacts with Kislyak. He has since been cooperating with Mueller’s investigation into Russian interference as part of the plea agreement.
Flynn is currently scheduled to be sentenced in May.
The article is new, but the information in it is about a week old. But still, good news.
If they hand over the evidence, the judge is describing, isn’t that going to mean that they were lying? Doesn’t the prosecution, through, Disclosure, have to provide all the evidence they have? Or are they allowed to cherry pick what they want to give?
I know this judge has a good reputation, but wouldn’t it have been better to order them to turn over any and all evidence in your possession?
Mueller calls DNC asks now what you got anything I can use..................................................
So when Mueller’s little frame game comes up against real judges looks like the party might be over.
Not as easy as puttin’ one over on a “grand jury” of Bruthas lookin’ to fry Trumps azz.
THAT is how I read this report
“If they hand over the evidence, the judge is describing, isn’t that going to mean that they were lying?”
Will be interesting.
Part of Flynn’s plea deal is that he waived (not sure which) either access to or any benefit from “exculpatory evidence”. IANAL, but I have fair amounts of contact with lawyers.
Now to you or me, that sounds completely insane. Yet it could be a measure of just how far over a barrel Mueller et al had him. And they surely did; they bankrupted Flynn and were threatening his son. Did not Flynn have to put his home up for sale (to pay legal bills) or was that an internet rumor?
Let me repeat what I often say about lawsuits: The law does not enforce itself. It isn’t in any way fair when it comes to paying for legal svces. If you’ve never been involved in suing someone or putting on a do-or-die legal defense, let me respectfully assure you that it can destroy huge sums of money at a shocking, devastating rate.
Why haven’t they already done that?
AND ORDER THEM TO PAY ALL HIS LEGAL BILLS!!!!!!!!!!!
Why haven’t they already done that?
Providing everything was the assumption prior to about 1980.
But the Supreme Court ruled that prosecutors have near absolute immunity, and judges were loathe to hold them to account.
Federal prosecutors really got out of hand. Many cite the case against Senator Stevens as a beginning, but it started quite a while before then.
The prosecutors focused on getting convictions, often for political gain, instead of fostering justice, as is their first purpose. It is as important for a prosecutor to *not* prosecute as it is to prosecute.
But with the explosion of vague federal criminal laws, nearly everyone can be found guilty of something. So *going after the man* instead of prosecuting a crime, became what many prosecutors did.
Judge Sullivan has become one of the few judges to make it his mission to reign in prosecutorial power about witholding Brady material.
Hopefully, when the smoke clears, Flynn will have the money he spent to defend against the BS charges.....and maybe even have a new position with Trump.....wouldn’t that be a poke in the Left’s collective eye!
Docket for United States v. FLYNN - CourtListener.com
See Document No. 10, filed 12/12/17, an Order from Judge Sullivan to Mueller ("the government").
If they don’t comply, it looks like the whole Flynn thing is a big “never mind”.
Prosecutors, being lawyers, push the limits, because that is their job as an adversary. "Good faith" is not to be found. So, production of exculpatory info per Brady is litigated, the government ALWAYS withholds some exculpatory information, and if the defense never finds out, well, the government got away with it. Incredible number of cases with that pattern, every day.
Both sides are involved too, but at this point it is up to Mueller alone to comply with the order. After that, Flynn's lawyer are able to introduce material and argue there has been a Brady violation. It is NORMAL for Brady violations to be litigated post-verdict, and sometimes even post-appeal.
No way to predict how the events unfold. It is theoretically possible for Mueller to appear to comply (but not), for the judge to sentence Flynn, and after that Flynn brings up a Brady violation.
It is also theoretically possible the exculpatory material is of a nature that cause the judge to toss the government and the case out of court for prosecutorial misconduct.
They're supposed to but often they don't because the crooked ones don't want to lose cases......
In 1992 a close friend of mine was sentenced to life in prison for murdering his ex-girlfriend who turned out to be a wacked-out nut job who stalked him for a year.
After serving 6 years in prison, the Michigan State Supreme Court overthrew the decision and ordered a new trial. It seems that the original judge failed to allow my friend's attorneys to submit evidence of her crazy behavior which included vandalizing his car several times and her attempting to run over a police officer who responded to my friends call that the nutjob had entered his house and was trashing it. My friend also had a restraining order against her that was never enforced by the police dept whenever my friend had to call them.
Following the retrial, my friend was sentenced to 8 years in prison with the 6 years he had already served counting towards it.
This past summer I mentioned this to a guy I play softball with who worked in administration for the city of Sterling Heights. He knew exactly who I was talking about because he had personally had several encounters with her at the city office and he too said she was batcrap crazy and if my friend hadn't shot her, somebody else probably would have.......
This is the reason why Gen Flynn pled guilty.
http://www.cardozolawreview.com/content/denovo/Sullivan.37.symposium.pdfGives some of the background. The prosecutors have been getting away with murder, and the issuance of a “Brady warning” is the only way to rein them in and make them meet their obligations. Judge Sullivan has had a bee in his bonnet about prosecutors withholding exculpatory evidence ever since a US senator got railroaded by an abusive prosecution is his courtroom.
In a Wall Street Journal op-ed, Judge Sullivan praised the chief judge in NYS, who has made the issuance of a Brady warning SOP in NY courts. Sullivan wants that nationwide. He says the problem is that the Justice Department has opposed that, but in the case of a Special Prosecutor (an office of dubious constitutionality, as Justice Scalia famously pointed out in vigorous - and historically vindicated - dissent from an 8-1 decision) I question why the DoJ (are you listening, Sessions?) does not make a Brady warning absolutely de rigeur.
In fact, what I really do not understand is why any criminal defense lawyer anywhere ever fails to ask the judge to issue a Brady warning - and register an exception if it is not granted. Brady v. Maryland is a SCOTUS precedent, and refusing to insist that the prosecutor fully abide by it would seem to legitimately call a judge’s commitment to the constitutional rights of the defendant into question.
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