What’s going on with Judge Sullivan? [Part II]
[NOTE: Here’s Part II, and the plan right now is that there will be a Part III as well, because Part II became very long and unwieldy. Part I can be found here.
ADDITION: And to clear up any misunderstandings that might arise on the following point – nothing in this post or any of the others in the series is an excuse for Judge Sullivan’s behavior, which I believe is inexcusable. These posts are an attempt to offer a description and explanation for the portion of his behavior that consisted of an emotional reaction that got out of control, which is something that should never occur with a judge. Explanations are not excuses.]
I’ve often wondered what it takes to be a judge. Not the academic or job qualifications, but the personality makeup. It seems to me that, although there’s probably a wide variation among judges, a general tendency would be the need to have faith in one’s own decisions and in one’s ability to be fair. Corrupt judges, of course, would have other characteristics, but I’m speaking generally – and let’s hope that generally in this country most judges are not corrupt.
After all, a judge makes decisions that hugely determine the course of people’s lives. Also, in his/her court, a judge is treated with remarkable deference – all that “Your Honor”-ing”, almost like a remnant of royalty. I know it’s supposed to be deference to the position and the institution of the court rather than this or that specific human flawed person who happens to be the judge, but I think it would be hard for judges not to take all that high esteem personally, especially after years and years of receiving it every day at work. Doesn’t a judge get used to thinking he or she is nearly infallible, a kind of semi-deity?
A judge dealing with criminal cases must decide a number of things and in particular sentence people, sometimes to lengthy terms in prison. In a large number of cases, the way our present legal system operates, those sentences follow guilty pleas arrived at through plea bargaining.
It would take a very naive person to believe that only guilty people plead guilty, particularly as a result of a plea bargain. Many people cling to that notion, however, because to believe otherwise – to believe that a significant number of innocent people plead guilty through fear, intimidation, ignorance, bad legal advice, or frameup – is frightening. It’s a hard thing to face, but it’s true, and it’s also true that in recent years the number of cases decided by plea bargain guilty pleas has risen to huge proportions (see this).
Do some judges actually believe that only the guilty end up pleading guilty? It’s hard to believe judges could be so naive, immersed in the system as they are. But perhaps, on a certain psychological level, they do believe it – or at least they prefer to preserve some portion of that belief in their own minds in order to go about the business of sentencing people.
Was anything like that going on with Judge Sullivan in the Flynn case? Keep in mind that many things can simultaneously be true: Sullivan can hate Flynn politically, Sullivan can be allied with powerful forces that tell him to treat Flynn harshly, Sullivan may be feeling the effects of age, and yet Sullivan can still be motivated at least in part by a belief that Flynn must be guilty if he pleads guilty – and, since Flynn pleaded guilty to lying to the FBI, that Flynn is therefore an opportunistic self-serving liar, and that he became even more of a liar later when he tried to take that plea back and blame others for mistreating him.
I offer as exhibit A to defend this point of view a rather curious thing Sullivan said during the sentencing hearing on December 18, 2018, the same one in which Sullivan’s out-of-the-blue-came-from-nowhere talk of Flynn’s possible treason got a lot of publicity in the MSM (I’ve discussed some aspects of that hearing already in Part I). The December 18, 2018 proceeding was supposed to be a sentencing hearing some time after the plea colloquy – when Flynn had pleaded guilty under oath – had occurred under a different judge who’d had to recuse himself because of a previously undisclosed friendship with Strzok, of all things. But on December 18, Judge Sullivan (the new judge) said at the outset of the sentencing hearing that he considers this an “extension” of the plea colloquy.
In a later document from Flynn, he describes that announcement from Sullivan as having been something neither he nor his lawyers had prepared for, so it took them by surprise. But at the hearing, we see that Flynn’s lawyer fails to object, and so it proceeds as an “extension” of the plea colloquy.
Go to the transcript of the hearing and look at page 7 (in the following, when Judge Sullivan refers to Flynn’s “briefing,” he is referring to a memorandum Flynn’s lawyers had recently filed that stated Flynn had been interviewed by the FBI without receiving a warning and without counsel) [my emphasis]:
SULLIVAN: Mr. Flynn’s briefing concerned the Court, as he raised issues that may affect or call into question his guilty plea, and, at the very least, maybe his acceptance of responsibility. As such, the Court concludes that it must now first ask Mr. Flynn certain questions to ensure that he entered his guilty plea knowingly, voluntarily, intelligently, and with fulsome [sic] and satisfactory advice of counsel. I cannot recall any incident in which the Court has ever accepted a plea of guilty from someone who maintained that he was not guilty, and I don’t intend to start today. So I’m going to invite Mr. Flynn and his attorney or attorneys to come to the podium, and I’m going to ask the courtroom deputy to administer the oath to Mr. Flynn.
Sullivan is saying something quite curious there, in my opinion. Does he actually think that no one in his court has ever entered a false plea of guilty? Or is he just saying that no one has ever simultaneously said he/she is guilty and not guilty? But Flynn had not entered that memorandum about not having a lawyer at the interview in order to say he therefore was not guilty. He’d entered it as part of the argument for getting a lighter sentence without jail time. And yet Sullivan seems to see a contradiction between the guilty plea and the statements in the memorandum.
I think this is where Sullivan feels an element of genuine anger at his own discomfort. There is some uneasiness and/or contradiction he senses in the situation that causes him some cognitive dissonance. So to resolve that feeling, he wants to make it crystal clear in the record – and to himself – that Flynn fully intends to plead guilty. That’s when Sullivan puts Flynn under oath and asks him a series of questions that cement Flynn’s guilty plea once again.
In addition to feeling that Flynn’s admission of guilt must be reiterated, Sullivan wants to make sure the Flynn takes responsibility for this terrible thing he’s done, this lying. The memorandum from Flynn’s side that mentions Flynn’s not having been afforded warnings and a lawyer strikes Sullivan for some reason as an attempt to evade responsibility, which I think angers Sullivan as well.
Sullivan wants to see a penitent, unequivocally guilty Flynn taking full responsibility, and Sulllivan doesn’t perceive Flynn to be doing that, which makes Sullivan uneasy. So he’s going to make Flynn own up to it, by gum.
I don’t think that at that point Sullivan was aware of the specific pressures and threats brought to bear on Flynn in order to extract that guilty plea, but Sullivan must have known or should known that this is often part of the plea bargaining process. Flynn describes his own feelings in a later document (see p 10) in which he says that in the days leading up to the December 18 hearing, which was expected to be perfunctory and basically an approval of the lenient sentencing agreement negotiated by the two sets of lawyers, his own lawyers from Covington kept advising him to “follow the path” (that is, the guilty plea) to make sure nothing further would happen to his son. In paragraph 41 (they are numbered), Flynn says the fact that the hearing turned into a plea colloquy took him and his lawyers “completely by surprise” and that they were “unprepared.” He also says “the entire experience was surreal, and that day was one of the worst days of my life.” And in paragraph 42 he says he was unprepared to decide on the spot whether to withdraw his guilty plea, consult with other lawyers, or follow the advice that his then-lawyers had been hammering home to him. He also mentions that, prior to that December 18 hearing, his lawyers had told him that if he withdrew his guilty plea, he would be “giving them the rope to hang yourself.”
He was caught in a terrible dilemma and without guidance, so he “followed the path” that had been rehearsed and set out: continue to plead guilty.
I am relatively sure that when Flynn says it was a surreal and terrible day, he is referring not just to his surprise and his dilemma about the plea, but in particular to Judge Sullivan’s “treason” outburst that followed later, and which I’ve already described somewhat in Part I. What prompted the outburst from Sullivan?
First the transcript indicates that after Flynn and his lawyers had answered all of Sullivan’s questions designed to re-state the plea and its related elements, Judge Sullivan went on to what was supposed to be the sentencing phase, the original plan for the hearing (starts on p. 17). As part of that process Sullivan reviews the possible penalties, and the facts of the case to which Flynn had previously acceded, including the Kislyak phone call and Flynn’s FARA filings (the FARA issues begin to be described on p. 22). Sullivan also described the cooperation that Flynn had offered the government and agreed to offer in the future (that discussion begins on p. 25).
It was that last bit – help in the future – that apparently was the sticking point for Sullivan regarding sentencing that day. On page 26 he says “the courts are reluctant to proceed to sentence unless and until cooperation has been completed.” He indicated that he couldn’t simply approve the plea bargain and the suggested sentence (no prison) of the two sets of lawyers, because Flynn needed to offer further assistance, and that assistance should involve testifying in the trial of his business associates’ FARA case (the one I’ve described at some length in this previous post).
Prosecutor Van Grack (p. 27) tries to say that Flynn has already cooperated in that case – and mentions the fact that the accused, Rafiekian and Alptekin, had just been indicted the day before, with Flynn’s help. And at the bottom of page 27, Sullivan asks whether Flynn could have been charged, too, in that indictment, to which (p. 28) Van Grack answers “yes.”
This must have sent a shiver down Flynn’s already well-chilled spine, reminding him that if this hearing didn’t go well, there was still the possibility not only of his own indictment regarding Turkey and FARA, but of his son’s, although Sullivan doesn’t mention the latter and may not even be aware of it, since the lawyers on both sides had made sure that that part of their agreement had been (illegally) kept from the court, as I described in this post.
Sullivan and the prosecutor then discuss the substantial penalties possible for the type of FARA offense Flynn has neither been charged with nor indicted for, but supposedly could have been charged with. Then finally it seems as though Sullivan is beginning to discuss the actual sentence he will be imposing that day, and (p. 31) Sullivan says he’s not bound by the recommendations in the lawyers’ agreement.
This also must have been a shock to Flynn, who previously had been assured that it would be approved. It might also have been a surprise to both sets of lawyers. The reason Sullivan gives for his statement is that Flynn has not yet fulfilled his full end of the bargain. Sullivan also makes it clear (towards the bottom of p. 31 into p. 32) that the sentence he’s planning to give Flynn if he sentences him today probably is going to be harsher than Flynn would get after helping further with the trial of the other two men.
And then (p. 32) Sullivan says this:
This crime is very serious. As I stated, it involves false statements to the Federal Bureau of Investigation agents on the premises of the White House, in the White House in the West Wing by a high ranking security officer with, up to that point…an unblemished career of service to his country.That’s a very serious offense.
I think by then Sullivan had revved himself up to an even greater a state of outrage. At this point, I believe that he saw Flynn as a liar who had disgraced his position and his stature, and had just admitted that disgrace and those lies once again, under oath. I think Sullivan felt what may have been a satisfying rush of contempt for Flynn, one that relieved him of any lingering doubt about the fact that Flynn needed a harsh punishment – and that he, Judge Sullivan, was going to extract his full pound of fleshy cooperation from Flynn before he would lighten the sentence one iota no matter what the lawyers and even the prosecutors had recommended. He was the judge, wasn’t he?
And it was then, with hardened heart and feeling what he considered righteous anger, that Sullivan made his extraordinary and completely uncalled-for statements about treason, some of which have already been described in Part I.
[NOTE II: To be continued soon in Part III.]
Neo— there is a typo in the last paragraph. “The Flynn” should be “Sullivan”.
An elegant summary of a dreary day for everyone concerned.
Amadeus 48:
Thanks, will fix.
I guess I got tired at the finish line 🙂 . And it’s a triathlon, with one more event to go.
You are, despite what seem like “reasons” for Sullivan’s actions, giving him too much credit. As if he ‘s an ordinary judge in over his none-too-bright head. Seems to me that he was like the rest; bound to screw over TRUMP by any means, if only by proxy.
Wow, this is tangled and crazy, and I appreciate you going through it all so carefully. It makes my head hurt to read it.
I can attest to the following first hand (or second hand, I guess because it was a close loved one):
“Many people cling to that notion, however, because to believe otherwise – to believe that a significant number of innocent people plead guilty through fear, intimidation, ignorance, bad legal advice, or frameup – is frightening.”
It’s mind boggling how this is done to people by their own defense attorneys–“I recommend you take the deal. I’m happy to try the case (for more $$), but who knows what kind of jury you’ll get?”
It’s sickening, terribly frightening, heartbreaking, and VERY expensive, in terms of actual money, but also reputation and livelihood, if the person has had to plead guilty.
FROM DANTE ALIGHIERI’S INFERNO.
S’io credesse che mia risposta fosse
A persona che mai tornasse al mondo,
Questa fiamma staria senza piu scosse.
Ma perciocche giammai di questo fondo
Non torno vivo alcun, s’i’odo il vero,
Senza tema d’infamia ti rispondo
TRANSLATION
“If I but thought that my response were made
to one perhaps returning to the world,
this tongue of flame would cease to flicker.
But since, up from these depths, no one has yet
returned alive, if what I hear is true,
I answer without fear of being shamed.”
There must be some connection between Sullivan’s conduct at this hearing and his reactions to (a) the efforts to withdraw the plea & seek additional Brady material, and (b) the DOJ’s dismissal pleading. In both instances he ruled adversely to Flynn in ways that seemed extreme. I think Sullivan lacks any reasonable comprehension of just how sketchy this prosecution was — or does not want to know. Flynn had an opportunity to advise Sullivan that he wanted time to reconsider the plea, but he was already under enormous pressure just to go along.
“Many people cling to that notion, however, because to believe otherwise – to believe that a significant number of innocent people plead guilty through fear, intimidation, ignorance, bad legal advice, or frameup – is frightening.”
What makes Flynn’s ordeal compelling and excruciating is that he was targeted, set up, and squeezed by the thuggish team of prosecutors assembled by Robert Mueller and Andrew Weissman. That is what they do. That is why you should want to stay out of their way. And, based on my experience, they think the are doing God’s work.
At my firm we had a pretty good idea of how to deal with the US Attorney’s office and who were the zealots over there. Here is a tip: 15-year career prosecutors have a very warped view of the world: they are confident that everyone is guilty of something, so there are no real injustices if someone gets fitted with a jacket (prosecuted for a crime). They will even cut that person a deal. You help them, they will help you. But they won’t help you that much.
I recommend this online lecture by the great Professor James Duane of Regent University on why you should never talk to the police. Watch it with your family. Everyone will learn something.
https://www.youtube.com/watch?v=d-7o9xYp7eE
Richard Aubrey:
Credit?
I give Sullivan NO credit for this. It was completely inappropriate.
I am, however, trying to explain the emotional portion of the process I believe occurred. An explanation is not an rxcuse.
Other typo the other way 4 paragraphs from end where it should be a “shock to Flynn”, not Sullivan.
“Sullivan says he’s not bound by the recommendations in the lawyers’ agreement.
This also must have been a shock to Sullivan, who previously had been assured that it would be approved.”
So very very glad to hear your thoughts!
Amadeus:
Here, however, the prosecutors were recommending leniency. It was the judge who didn’t but it.
Tom Grey:
Thanks.
Sullivan is taking his orders from Obama not the Constitution and his oath.
Amadeus 48 has it right about experienced prosecutors – ” they are confident that everyone is guilty of something, so there are no real injustices if someone gets fitted with a jacket (prosecuted for a crime).”
I suspect most judges feel that way about most suspects at most trials – and I’m sure Sullivan felt that about Flynn in this trial.
And it might even be the case that Flynn’s Turkey dealing is dirtier than we know; or even than he knew when he did it. Plus there is likely to be more dirt on Flynn’s sons.
I’m sure there’s lot of crimes Hunter Biden could, and should, be accused of and prosecuted for. John Kerry’s kids, too. Both Hillary & Bill have long been accepting bribes, and even set up their own Bribery, er, Clinton Foundation to launder the bribes.
Sort of like how many colleges have been illegally accepting foreign, often Chinese, money and not fully reporting it.
The very sad thing about DC is how close to true is the line from Kingpin (to Daredevil):
Nobody is innocent.
Dems were sure that Mueller would find enough crimes against Trump that the bogus start would be forgotten/ forgiven after they impeached him for whatever else their fishing investigation found.
Nobody is innocent … but Trump was so legally careful for so long they couldn’t pin any crimes on him.
I’m sure Sullivan knows a lot, and is sick of a lot of it — but thinks the worst of Flynn especially, for reasons as stated.
People falsely and voluntarily confess to heinous murders. They come forward, all by themselves. Gives them their 15 minutes of fame. False confessions of guilt are not all that rare.
Flynn was poorly served by his non-objecting attorney. Stuff like that happens all the time in both criminal and civil cases. The trouble with law is that it is about winning an argument, not about right v. wrong, aka Justice. Lawyers argue for a living in court. Argue! They make Arguments.
It has long been said that lawyers seek judgeships because they can’t make it in the office practice of law. Becoming a federal district judge is to be in Fat City.
And the federal bench, a “higher” level than provincial judgeships, is not immune to gross malconduct. See Alcee Hastings, impeached after a felony conviction (taking bribes) plus perjury in 1989. And Thomas Porteous, also a felon, impeached like Hastings in 2010.
There is no reason to think Sullivan is a mildly idiosyncratic but still idyllic federal judge. He is just another righteous power-lusting bigot as unfortunately some become when provided with power. Eric Holder and his buddy Barack Hussein also come to mind.
Sully was appointed by W.J. Clinton, 1994.
The prosecutors should never have been in that courtroom prosecuting Flynn in the first place. They had nothing on Flynn.
Covington knew the feds had nothing on Flynn. How did they know? The prosecutors wouldn’t let them see any version of the 302, and they never saw the transcripts of the call. The prosecutors should have dropped the case. Instead, they said, look, we will do you a favor. You plead, and we’ll let you off with no jail time. Covington said, we know Flynn is not guilty, but this will stop the bleeding.
What was Sullivan supposed to think? I am not defending him, because he got it all wrong. He should have been leaning on Van Grack to drop the case if that was going to be the disposition. Here is the thing. Good, experienced judges lean on both sides. Sullivan only leaned on Flynn. Big, big mistake.
The whole country reads NYT, WSJ news, and WaPoop. The difference between Washington and the rest of the country is that in Washington, they believe what they read in those rags.
You have been warned.
Tom Grey:
But in this case the judge was being tougher than the prosecutors.
Re the Turkey dealing – Flynn did not plead guilty to improper FARA filings, nor did he plead guilty to anything having to do with his larger dealings with Turkey. However, in the plea, they included language connected with the FARA documents. It’s actually a rather confusing situation I already dealt with somewhat in this post which contains the following quote from this article.
The relevant portion is here:
I plan to discuss this further in Part III.
Cicero:
Who on earth thinks Sullivan is a “mildly idiosyncratic but still idyllic federal judge”?
The left thinks he’s idyllic, period. The NeverTrumpers probably twist themselves into pretzels to say the same.
I think that for both political and emotional reasons he’s WAY out of line. WAY. I think he not only should be removed from the case, but from the bench.
I think you could have covered this with one sentence- in the December 2018 hearing, Sullivan was showboating and giving the media their talking points for their news stories- this is why he forced Flynn to reallucute, and why he suggested he could be charged with treason. Sullivan was metaphorically dragging Flynn’s body through the streets behind a horse for all to see.
“Here, however, the prosecutors were recommending leniency. It was the judge who didn’t bu[y] it.”
Just to be clear, if we think the prosecutors were recommending leniency, we have bought into the baloney. The prosecutors had NOTHING on Flynn. They should have dropped the case. It is not leniency to bluff a three star general with a distinguished service record into pleading guilty to a felony when you know he is innocent. This was a political prosecution of an innocent man. There was nothing lenient about that disgraceful Mueller crew.
I wonder…
Why did his original attorney agree for him to plead Guilty instead of Nolo Contendre? If the “deal” were an honest one, I would think that such a plea compromise should have been considered.
Given the caveat that no one can legitimately be psychoanalyzed* long-distance (unless you are a Republican president, of course), this is a very persuadable analysis.
“I’ve often wondered what it takes to be a judge. Not the academic or job qualifications, but the personality makeup. It seems to me that, although there’s probably a wide variation among judges, a general tendency would be the need to have faith in one’s own decisions and in one’s ability to be fair. Corrupt judges, of course, would have other characteristics, but I’m speaking generally – and let’s hope that generally in this country most judges are not corrupt.” – Neo
Also true of our representatives to Congress and other public servants.
“Good people go to Washington to do good, and end up doing well.”
*I am of the opinion that very little formal psychoanalysis is legitimate, but it is nonetheless possible to adduce possible motivations for just about any behavior based on a sound understanding of history and human nature.
Generally, in this country, most judges aren’t corrupt; most police officers are not racist murderers; most bureaucrats are just trying to do a decent job; most lawyers are honest; and most journalists are not political hacks (unless in top level MSM positions).
They don’t make the news, and rightly so; however, the ones who do make the news (regardless of which way their actions are spun, accentuated, or diminished) are, by practical definition, the exception, not the rule.
I don’t give Sullivan much credit for judicial idealism. I don’t think any Federal Judge who is seated on the bench this long has much idealism to draw from. He sees cases in front of him every day knowing that plea deals have been reached and that the accused are often in a predicament whose workings they mostly don’t understand, and who are desperate to salvage whatever remains of their former life. His role carries the name of Justice, but more accurately I think it’s trying to fit life circumstances into a legal framework for assigning penalties or dismissals.
Likewise, us amateurs can only imagine the emotional charge that comes with being forced to plead something as the accused. The bizarre disconnect between the banality of court procedures and the immediate fate of future life-altering decisions must be jarring, disconcerting, overwhelming.
I think it more likely that Sullivan pulled every one into the bench to grill Flynn because he sensed that Flynn was getting cold feet about the plea and wanted to leave as little room as possible for future unknown considerations. While I don’t assign much honor to Sullivan and his record, I do admit I assign quite a bit of honor to Flynn on the other hand, mostly owing to his military service: my bias. His career accomplishments and service speaks for itself. I think Sullivan pulled them in and administered oaths to try to make it impossible for Flynn to reconsider his plea at any future date.
Because I think Sullivan had his agenda. I don’t believe that Sullivan on the bench is solely concerned with his immediate courtroom universe, and completely isolated from the bigger political world swirling around him. And I don’t assume his courtroom behavior is without any dramatic affect. He has extensive political connections both professionally and personally, and those weigh on his day-to-day work when he’s deciding a case of huge political import. Yes, I think he’s ‘Touchable’.
Neo. I know the diff between explanation and reason.
My view is that Sullivan did not get all conflusticated by the contradictory Moebius strips that made up the case and then vented his frustration on FLynn.
I think he went in there intending to screw Flynn any way he could…as a way of getting at Trump personally and the Trump election….but got confused about how he was going to do it. Hence the obvious frustration.
“Flynn did not plead guilty to improper FARA filings, nor did he plead guilty to anything having to do with his larger dealings with Turkey. However, in the plea, they included language connected with the FARA documents.” – Neo
Sounds suspiciously like the Mueller report, to paraphrase: “We found no evidence that Trump or anyone else committed an actual crime (not for lack of trying!), and we aren’t going to charge him obstructing our investigation (because he didn’t), but here are some reasons to believe he obstructed justice anyway.”
Nudge, nudge, wink, wink.
Roy Nathanson on May 27, 2020 at 8:05 pm said:
I wonder…
Why did his original attorney agree for him to plead Guilty instead of Nolo Contendre? If the “deal” were an honest one, I would think that such a plea compromise should have been considered.
* * *
I believe you answered your own question.
Richard Aubrey:
I have written several times – both in this post and in others on the subject – that political motives and personal/emotional motives are not mutually exclusive. I happen to think both are operating, and I have given evidence for that in 2 posts in the series so far, and there will be more forthcoming, I believe, in the third.
You seem to be saying no, it was ALL political. You’re entitled to that opinion. But I see no evidence that’s the case. I see evidence that my view – that both the political and the emotional were operating – is much closer to the truth.
Aggie:
I don’t give Sullivan credit for judicial idealism either. I don’t give him credit, period. I think, however, that many people – Sullivan among them – tell themselves lies in order to justify the moral compromises they make. So Sullivan, on some level, despite knowing about plea bargaining, tells himself that people don’t plead guilty who are innocent.
People can hold contradictory notions in their head at once. The emotional level is different than the cognitive level.
> AesopFan on May 27, 2020 at 8:17 pm said:
> Generally, in this country, most judges aren’t corrupt;
Depends on your definition of “corrupt”.
As a lawyer I can tell you most judges are “warped”. That act of deference has twisted their mental processes.
Let me explain … (copied from a previous post on the judiciary, but it applies more widely)
See you and I face consequences for our actions. If you or I have a bad day and are jerks to our co-workers or our clients, someone lets us know that we are acting inappropriately and we can correct our behaviour.
However, if you are a judge/prosecutor, and (to a lesser extent) cop, you have both immunity for your actions and the ability to fine/imprison people based on your arbitrary and capricious whim. As a result no one, including your staff, feels confident enough to let you know that you’re acting like a complete and total jerk, that your behaviour is unprofessional and “demean[s] or disrespect[s] the court”. See, the staffs’ reactions to the “Cash for Kids” scandal and the “Penis-Pump Judge” (tl;dr: the staff knew they were just too scared of the judges to speak out).
Without this feedback, it is easy for someone’s moral compass to become bent. Everyday there is pressure on everyone’s moral compass to be self-centered and inconsiderate of others (i.e. human nature). However, with most of us, there is that feedback or pressure in the opposite direction to behave like a proper human being or professional (i.e. others tell us to stop being a jerk). With the judiciary that feedback has been removed. As a result, the longer you stay in the judiciary the more your moral compass gets bent and the more shocked you become that your behaviour is inappropriate (after all no one told you it was).
Or to look at it another way, those of us in private practice have to internalize everything. We [lawyers, but most people in the US] work in a service industry and because we can’t control our clients or opponents (be they other attorney’s, bureaucrats, or judges), if we want something to change we have to figure out how to change our behaviour to get what we want.
If you’re a judge, you don’t have consequences for your behaviour (immunity, the right to inflict fines/imprisonment upon those that call out your bad behaviour). As a result you externalize everything. Everything becomes something someone else caused to happen (“I didn’t put him in jail, he forced me to hold him in contempt, by pointing out my way wasn’t the law!”). When nothing is considered your fault, how could anything you do be wrong?
As an aside, I read last year an article by a Federal judge about how sending people to jail, etc., wore him down emotionally. The idea that he was removing people from their familys, homes, etc. really got to him. And he stated that after a while he started to externalize his actions (“I didn’t put him in jail, he did”). Which made me realize that that dis-association from responsibility wasn’t purely an act of hubris, it was also an act of psychological self-defense.
.
.
So, I’ll elaborate on the above.
I have seen in prosecutors that the tendency to externalize everything results in them having total unshakable confidence in their decisions.
They have a psychological block preventing them from admitting that they are wrong. They can’t be wrong, because “wrong people” face consequences, and they have immunity from the consequences of their actions therefore they must be right.
It is the Tautological Templar syndrome.
To keep up this psychological defense, they sometimes need to ignore or (in worst cases) “edit” the facts to fit their world view and decisions as to who is guilty or innocent. They’re not concerned with “justice” they are concerned with being right.
.
This is why a good prosecutor or judge is a real treasure
Roy Nathanson:
We actually don’t know whether his first attorneys discussed a nolo contendre plea with the prosecutors and whether it would be acceptable. If it was not acceptable to the prosecutors, the plea deal would not have gone through, and the prosecutors would have left open the possibility of charging the son. I think they wanted a guilty plea or no deal.
And then, of course, Flynn’s original lawyers probably wanted a guilty plea, too, to get themselves off the FARA hook.
Also, the court has to accept a nolo contendre plea, as well, or it’s not possible to do it: “Under Federal Rule of Criminal Procedure 11, a plea of nolo contendere shall be accepted by the court only with its consent and only after it gives due consideration to the views of the parties and the interest of the public in the effective administration of justice.”
Amadeus 48:
Of course the prosecutors weren’t being lenient to Flynn generally. By “here,” I’m referring to that particular sentencing hearing only, in which they were recommending leniency in the sense of no prison term, as part of the deal.
There was nothing lenient about what happened to Flynn as a whole, of course.
momo:
You have described exactly – and probably much better than I did – the process I’m writing about in the first part of this post.
Team Mueller wanted a guilty plea to a felony, and so did the judge. Covington was more circumspect— they wanted no jail time because that was the deal. Look at the discussion of the Petraeus case at the sentencing hearing. Kelner raised it and Sullivan said he didn’t know anything about it but he disagreed with it. Sullivan was explicating his Flynn betrayed the flag idea, and Kelner pulled the rug out.
Neo said:
“It would take a very naive person to believe that only guilty people plead guilty, particularly as a result of a plea bargain.”
I think Tom Grey and Amadeus 48 addressed this already but I would add that its not that a large percentage of judges think only guilty people plead guilty. Rather, its that so many of them believe no one is innocent. A sizable percentage (possibly even a majority) of judges, prosecutors and cops believe everyone is guilty of something and no one is innocent. So we have to look at their beliefs on plea bargaining with that in mind.
That doesn’t change the fact that the plea bargain system is a monstrous injustice.
Also:
Neo quoted Judge Sullivan:
“I cannot recall any incident in which the Court has ever accepted a plea of guilty from someone who maintained that he was not guilty, and I don’t intend to start today. ”
Well, isn’t that something. That would mean that a Federal Judge hasn’t heard of an Alford Plea. Perhaps he meant that he, specifically, hasn’t allowed one in his court, as that is up to him. But I didn’t get that from his quote-He said the court not this court. Judge’s are possessive of their powers and their court.
For those who don’t know, an Alford Plea allows a defendant to plead guilty but still assert their innocence. They are used infrequently. In my mind, if the guilty plea system is a monstrous injustice, the use of the Alford is like injecting that monster with a dose of growth hormone.
Sullivan is a political animal. Flynn was ambushed and framed. The FBI and Justice people involved are dirty cops.
But from the beginning, Flynn was an idiot. For a sophisticated 3 star general who had run a substantial part of the intel apparatus, who by definition was steeped in the politics of the military, Intel and law enforcement communities, let alone the Obama Administration from which he was fired, he acted like a hick fresh off the farm. I have sympathy for him but don’t respect him.
I am just a regular guy without any legal background looking at this stuff, it appears to me that Sullivan is just following the party line, he is on the left and he got himself caught in a mess of stuff when he was just trying to push the Democratic party stuff on along and maintain confusion and he fell into a deep pit! !
momo on May 27, 2020 at 9:10 pm said:
> AesopFan on May 27, 2020 at 8:17 pm said:
> Generally, in this country, most judges aren’t corrupt;
Depends on your definition of “corrupt”.
As a lawyer I can tell you most judges are “warped”. That act of deference has twisted their mental processes.
* * *
Excellent comment and analysis.
I was thinking more of corruption in the sense of bribery, personal & partisan favors to one side or the other, and so forth.
I concede that “warped” applies for probably far too many.
The lack of accountability, and thus warping, also extends to anyone who can affect someone else’s life and livelihood without consequences.
CF the virus model makers, for a current instance, along with academic advice-givers in general; most politicians in “safe” seats; law enforcement officiers (I was specific about “not racist murders” for a reason); union officials; and so forth.
The list is pretty long and includes everyone who thinks people should be ruled rather than governed (h/t Judge McHaney).
Zooming way back here what I see is another example of the very broad and general inability of the Democrats (as well as the Never Trumpers) to accept that times have changed. I can remember Republicans in the late forties who still believed that FDR was an aberration and that the world would go back to ‘normal’ with the election of Thomas Dewey in 1948 or certainly with Taft in 1952. I remember my father (an FDR man all the way) walking around the house on the day after the ’48 election saying “I’ll be damned” and later General Eisenhower challenging the traditional Republican Taft and just prevailing after several ballots at the ’52 Republican convention. The era of big government had arrived and the old laissez faire world of the previous era was gone. Now the era of big government has hit the wall and no one has the answers, but I think Trump has gotten a far better start at finding them than he has been given credit for. Time will tell, but the old guard, including judge Sullivan, is – ironically – still quite innocently in the stage of denial. As innocent as the old farmers I grew up among who went to their graves having successfully ignored the IRS and it’s upstart requirements.
I am just a regular guy also but just can’t get over what type of person from the FBI or the DOJ, willingly prosecute and bankrupt a man with the knowledge they framed him. Did they not have religion, or parents or any sense of righteousness growing up that put that gnawing sense of this is just wrong in their heart?
Tom in CA–It is hard to explain. Somehow, we lost the thread. We need people in government who are willing to say, “We aren’t going to do that.” There are precious few today. I am a big fan of Dwight Eisenhower, Harry Truman, George Marshall, Ronald Reagan, George Schultz, and much of the post-war political establishment up until Bill Clinton, who seemed to me to have no moral compass at all (LBJ was the same. Nixon was very complicated). JFK was admirable in many ways and despicable in others. George HW Bush was a good guy to have on the team, but you didn’t want him in charge. Even the losers–Stevenson, Humphrey, McGovern, Goldwater, Ford, Carter, Mondale, Dukakis–were good people. They all, except maybe Clinton, Nixon, and LBJ, had things proposed to them that they knew were wrong and would not do. There are very few who would say no in public life now–William Barr is one. Self-restraint is a true virtue.
I think I’ll go with Occam’s Razor: he’s corrupt, abusive, partisan.
I doubt Sullivan is anyone idea’s of an “idyllic” judge.
Is there such a word as “idealic.” Doesn’t “ideal” suffice?
Tom in California. Every FBI agent now working either failed to resign after the Waco massacre, or applied for the job since. IOW, working for an agency which pulled off the Ruby Ridge catastrophe, Waco, tried to frame Richard Jewell and withheld exculpatory evidence on the Ted Stevens case doesn’t bother them. I’d hate to think–but I might force myself–that for some, those provide a bit of frisson to go along with the paycheck.
Good post and good comments.
Two matters, one is that Mueller who is probably senile and served only as a figurehead (Republican and former Marine) has a history with false convictions in the Whitey Bulgar cases.
Two, Every FBI agent now working either failed to resign after the Waco massacre, or applied for the job since.
I have a daughter who has been an FBI agent for 20 years. She leans left politically but told me in September 2016 that she would NOT vote for Hillary. I think that lower levels in the Bureau are uneasy about some of this stuff. Maybe not uneasy enough but they knew that the Clintons were dirty.
She was a lawyer doing family law and decided she did not want to do that after a client committed suicide. I doubt she even thought about Ruby Ridge or Waco. The DC headquarters has the DC poison in its system. A lot of people want to see somebody go to jail for all this stuff but you have to get past DC juries. Greg Craig knew he would get off on a similar charge because he is a Democrat and Clinton crony.
I wonder if Barr chose his team because they were NOT in DC. They will still have to get past DC juries, which come from the sort of jury pool we saw in Minneapolis last night.
Richard Aubrey–I, too, think that first, the FBI’ s actions in 1992 at Ruby Ridge, then the FBI’s actions at Waco in 1993–by one tally 75 civilians killed, some twenty five of them children–with no real consequences/punishment for those FBI agents involved (some, I believe, were actually promoted based on what they did in these deadly incidents)–showed that moral rot had set in at the FBI.
Neo:
Your Sullivan posts inspired me to check out the Wikipedia entry on Michael Flynn.
The entry reads (unequivocally) as an indictment against Flynn. It could have been written by an Andrew Weissmann staffer.
The entry’s citations are largely from the NYT and WaPo. Wikipedia believes Flynn to be A Very Bad Actor Indeed. It fills in the blanks re: Sullivan’s mindset.
The January 29th, 2017 telephone call between Flynn and Kisylak provided deep-staters with a rationale to knee-cap the incoming Trump administration (part of a comprehensive “insurance policy”).
Flynn’s gullibility regarding his FBI interrogators is genuinely puzzling. Did he really think Strozk and the gang meant him no harm?
I await Sullivan’s response. I don’t think he’s going down without a fight – but if he does – Flynn will have the opportunity to speak openly about this lamentable episode in American history.
Occam has been bandied about quite a bit, justifiedly.
Speculation is, understandably, rife. One is trying, after all, to understand the incomprehensible.
Gotta go with simplicity even with something as convoluted as this.
Motivations. Actions. Precedents, certainly.
(I’d be a bit careful, however, with the psychological speculation…)
While Andrew McCarthy, in a reasonable, well-considered column insists that Sullivan has to be permitted to serve as judge (and not removed from the case as some have argued) so as to be able to explain his latest “bizarre” decisions.
I wonder, though, whether Sullivan was the one who, after all the exquisite planning and monstrous, if impressive, execution (in several senses) of Flynn by the Mueller gang, was/is the ONE who was supposed to, officially (“legally”) put the finishing touches—the coup de grace—on this “magnificent” effort.
Except that now he can’t do that.
And he’s more than a bit worried that—as an honorable man(!)—he’s not going to be able to “fulfill” his side of “the bargain”.
So he’s playing for time, and doing his best.
Call it “fear”?
Wikipedia can NEVER be trusted on any political topic.
McCarthy is a good man but has a persisting nostalgia for the DOJ that makes it very hard for him to see the motives behind the latest scandal.
I agree that it is hard to understand Flynn’s gullibility. I have to assume that he thought the FBI was honest and patriotic.
Two matters, one is that Mueller who is probably senile and served only as a figurehead (Republican and former Marine) has a history with false convictions in the Whitey Bulgar cases.
Only Rod Rosenstein is, verifiably, a registered Republican. James Comey has lived most of his adult life in Virginia, which does not have party registration. No one asserting Mueller is a ‘Republican’ can tell you in which state he’s registered to vote. (I’ve tried locating him and failed).
In truth, all three men are Justice Department lifers, and they co-operate with crud like Andrew Weissmann to prevent elected officials from reforming that awful institution.
I have sympathy for him but don’t respect him.
I think if you’re ever ruined by malevolent characters, I’ll experience about half of these sentiments.
“I doubt she even thought about Ruby Ridge or Waco.”
And that in a nutshell is the problem
Mike K. (and Neo) –
My point in citing Wikipedia was to provide a comprehensive background to the case against Flynn. The Wikipedia position is clearly in line with the Obama/Comey G-Men/MSM/ and Sullivan viewpoints. I think Sullivan wholeheartedly embraces the deep-state line.
I hope Flynn prevails (and ASAP) – but until informed otherwise, I believe he was remarkably naïve in his communications with Comey’s and Weissmann’s henchmen.
Two matters, one is that Mueller who is probably senile and served only as a figurehead (Republican and former Marine) has a history with false convictions in the Whitey Bulgar cases.
Since he looks and acts like he was lifted from ” Triumph of the Will” I think his loyalty is to a different political partie
Barry Meislin
As I said earlier, some place, in a situation like this, any particular actor is known to be able to do….whatever it is he’s doing in his position. The Deepers know that there are things the particular actor cannot influence. They are supposed to have that covered–“locked up”–by fixing the other actors to whom the particular actor’s results will go.
To make an exaggerated case, the Deepers know Sullivan does not have a vote on SCOTUS. They either think this isn’t going that way, or forgot it might, or they have the fix in at SCOTUS. Or they figure if it goes that far, there’s nothing they can do anyway and they’ll take their lumps–whose arrangements are probably available for influence if necessary.
Point is, if the Deepers didn’t count on Sullivan’s inability–given the circumstances of the trial–they’re not as good as they think they are.
The conclusion is there’s something else waiting for Flynn if Sullivan can’t make his case.
No one asserting Mueller is a ‘Republican’ can tell you in which state he’s registered to vote. (I’ve tried locating him and failed).
I assume that assertion is based on him being appointed by Republicans, which means nothing as we have seen again and again. The same point is made about Sullivan.
Add in the racial component, the Bonfire of the Vanities moment of having a gen-u-wine guilty (he admitted it!) white defendant after years and years of watching black defendants plead guilty, and you’ve got your final answer. That’ll be the jumping off point to change the topic from the egregious miscarriage of justice which occurred here. Everything about this story makes me nauseous.
Wow…and part III coming? This is terrific digging, neo!
Since people have complained that they lack a concise, digestible summary of what Obamagate is all about, since it is a sprawling mess, and now that America Thinker touts this too, for that very reason, here’s the best bite-sized essay so far: Charles Lipson, poli sci prof emeritus at Chicago, via realclearpolitics, in three shorter sections: “What the Obamagate scandal means and why they matter”
https://www.realclearpolitics.com/articles/2020/05/27/what_the_obamagate_scandals_mean_and_why_they_matter.html
You can share this with uninformed and ill-informed friends.
Now, I take exception to the fact that it lacks a fourth part: Lee Smith and Obama’s zealotry for the Iran Deal. And this part of the puzzle puts treason on the table of damages and crimes.
But maybe it is just as well that it doesn’t.
Most people are ill-equiped and often uninterested in foreign affairs. Furthermore, documents than nail down more facts in this direction may yet be coming out. Right?
LeClerc and Mike K: re Wikipedia bias, perhaps you missed the story of Larry Sanger, a Wiki co-founder, and his conclusion that Wikipedia neutrality is dead because of Leftist bias on controversial topics from Obama versus Trump scandals to global warming.
Yeah, we’ve known this. But there are others and many others that I didn’t know. And having such an authorial imprimatur suggests that anyone who is going to be intellectually honest must examine the examples cited in detail.
Breitbart has a roundup with many links.
https://www.breitbart.com/tech/2020/05/26/wikipedia-co-founder-sites-neutrality-is-dead-thanks-to-leftist-bias/
It’s not only worth a bookmark for reference, it’s solid ammunition in Lefty debate and re-education.
PS I’m proud to say that I was banned from the site for a year for simply correcting one detail in the biographical entry at Wikipedia on Tucker Carlson. It’s therefore very good that it’s Fall from Authority into mal-repute accelerate.
TJ –
To clarify: I’m not citing Wikipedia as a trustworthy, unbiased source of info.
I’m citing it as an excellent representation of the Deep State’s animus towards Flynn and the Trump Administration writ large.
I assume that assertion is based on him being appointed by Republicans, which means nothing as we have seen again and again. The same point is made about Sullivan.
Well, the two U.S. Attorneys he worked for were prominent Republicans (in California and Massachusetts, respectively). The Attorney-General in office when he arrived was Edward Levi, a Democrat Gerald Ford had hired off the University of Chicago faculty. The 2d of the two U.S. Attorneys he worked for was…William Weld. He had a brief tour in the private sector and then was re-hired by….Richard Thornburgh. He had another brief tour in the private sector when (during Janet Reno’s tenure as Attorney-General) he was hired as a staff prosecutor in the US Attorney’s office in DC. This was a step down from previous positions he’d held, so I’ll wager there’s a story there. Reno then arranged for his appointment as U.S. Attorney in Northern California. George W. Bush appointed him FBI director in 2001. By some accounts, the only people Bush considered for the position were lawyers, not cops. Obama extended his appointment beyond the statutory 10 years, then hired Comey to replace him.
What was behind his return to the Justice Department in 1995 is something I’d like to know about. That aside, it appears his patrons were drawn from the pre-Reagan Republican establishment prior to that date, then from both parties after that date. George W Bush wasn’t much of a disciplinarian with his subordinates, so Mueller appears to have been uninjured by cock-ups (Stephen Hatfill, Bruce Ivins).
I’m puzzled to know why presidents reach for lawyers to run the FBI. In the years since Hoover’s death, the only career cops to run the agency have been Clarence Kelley (1974-78) and Louis Freeh (1993-2001).
When I think about Flynn’s fateful FBI interview, I think the secular situation is very important. We have to remember that since the election, there was a non-stop drumbeat of anti-Trump propaganda to the effect that the Russian intelligence services had swung the election to Trump and may well control him–I was flabbergasted when I saw Rachel Maddow say that near the end of MSNBC’s election night coverage. Wasn’t Maddow’s candidate the one who had flaunted the “reset” button? Hadn’t I heard Obama tell Medvedev to tell “Vladimir” that Obama would have more flexibility after he was re-elected? Didn’t Obama make fun of Mitt Romney for saying that Russia was the US’s premier adversary? Who was soft on the Russians? It wasn’t Trump.
When Flynn got the call from McCabe that he was sending a couple of guys over to get some things straightened out, he probably thought the FBI was there to help him get the facts straight about what had happened with Kislyak. Trump and Pence were being badgered about every meeting that anyone on the Trump campaign had ever attended where there were RUSSIANS! The FBI team–the execrable Strzok and the invisible Pientka–gave no warning that they were on a fact-finding mission to find reason to get Flynn fired or prosecuted. The agents had a transcript of the call, which they didn’t share with Flynn. It took them weeks to write up the 302 of the meeting to their bosses’ satisfaction. We don’t really know what Flynn said, or what they said to him.
I think Flynn was completely sandbagged.
One reason to watch that James Duane lecture (why you should never talk to the police) that I linked earlier in the comments is that it makes clear that the police are not required to tell anyone the truth while they are investigating a matter. They can lie their heads off. They can make things up. They can say that your friend, who they say is in custody (when he is not), has confessed and named you as his principal in a crime.
Flynn thought the agents were there to get his recollections of the talks with Kislyak. Flynn didn’t even know if they were authorized to receive confidential intelligence information or not. They pulled the classic “you won’t need a lawyer” thing. They were lying.
We all know now that he needed a lawyer.
“But from the beginning, Flynn was an idiot.”
No. Believing the best of your political rivals is not being an idiot.
Tho also yes. Gullible.
He truly believed, like our Andrew McCarty, that the FBI was being honest, and after the “full of lies & untruths” campaign, the State was ready to be lead by the Rep New Guys (Kids on the Block). Trump’s “Lock her up” was mostly rhetoric, tho I wished he had pushed for it, and still now I dream of it and think it’s not too late. (Maybe Hillary would plead nolo contender )
I suspect Flynn thought the FBI boot-lickers were ready to chat him up and start licking HIS boots. He was being stupid about bragging about intel audits.
I suspect Flynn IS blaming himself, and calling himself an idiot, for being so naively gullible, after knowing so well how dirty they could be. And think how helpless, and impotent, he’s been. “Being innocent is no defense.” He knew that, he knows that — he just didn’t think it meant him, too.
OK, in Trump’s case being innocent was enough – barely.
We’re not going to get justice. We’ll be lucky to have Trump re-elected, and some real reforms that make it a bit tougher next time.
Idealistically sad, but realistically, muddling thru has long been an American strength.
Fractal Rabbit on May 27, 2020 at 9:44 pm said:
“I wonder, though, whether Sullivan was the one who, after all the exquisite planning and monstrous, if impressive, execution (in several senses) of Flynn by the Mueller gang, was/is the ONE who was supposed to, officially (“legally”) put the finishing touches—the coup de grace—on this “magnificent” effort.”
Contreras was the one in on the deal, which led to him being forcibly recused when that came out, and thus unable to finish things off.
Sullivan may or may not have been read in, or even deliberately appointed; the tentacles of the Hydra were not on public display back then.
Until we know what Sullivan knew, and when he knew it (such a cliche, but it really fits all the actors), we won’t really be able to assess his motives and goals.
One thing I am fairly sure of: whatever rationale he crafts with his lawyer may be defensible, possibly persuasive, and false in some or all aspects where he doesn’t think he can get caught out.
Lawyerese, like media-speak, excels in rhetoric that never includes an untrue statement but taken as a whole is a lie.
AesopFan,
I don’t think that is me you’re quoting (5/28 @4:13pm) Doesn’t sound like me.
As a career prosecutor I have represented the Commonwealth during thousands of guilty plea hearings, and I have witnessed or read the transcripts of thousands more. I can hardly begin to wrap my mind around all of the pleadings, testimony, and sub-texts of everything that we do know at this point about the Flynn plea and Sullivan’s strange behavior and rulings. But here are a few observations:
First: Federal judges are notoriously impatient and tyrannical. They are used to getting anything and everything they want, yesterday. They receive very little push-back, even from defense counsel. They can easily go off on tangents or become convinced of something that just isn’t so, but it’s hard to get them back on track because they don’t listen if they don’t want to.
Second: When Sullivan says that he’s never taken a guilty plea from someone who is protesting his innocence, I understand that. It’s not rare to have an accused appear for his guilty plea hearing and then balk at the part where he is supposed to admit to the crime on the record. The judge should then explain that he doesn’t have to plead guilty but that he does have to admit that he did the specific offenses if he wants to plead guilty. The judge should also give the accused time to consult with his attorneys and, if necessary, bring him back on another day after he’s had time to talk it over with counsel. The judge will NOT take a guilty plea from someone who continues to assert their innocence. Oh, and the defendant is absolutely under oath the entire time that he’s speaking in court. However, it’s unheard of for a defendant to be charged with making false statements/perjury because he pleaded guilty even though he thought himself to be innocent. We have clear case law that recognizes that an accused may very well decide to plead “guilty” based on other factors besides their actual guilt, and this is not held against them.
The only exception is if the plea is a nolo contendere; that is, the accused only has to acknowledge that the government would prove the case that he did X, Y, and Z, and that he’s not going to contest that. Here, the Feds probably did not want to give him a deal if he pleaded nolo; they wanted an unambiguous admission of “guilty” because of the politics.
Third: It seems to me that there was confusion as to what Flynn’s “cooperation” was to consist of. Sullivan seems to think that the prosecutors did not make it as clear as they should have as to what cooperation was expected; he also seems to think that the cooperation that occurred was not sufficient. This is a tricky area. Normally, the prosecutor tells the court as part of the guilty plea hearing and before sentencing, “We need the accused to do *this exact thing* and if he does, then we will appear at sentencing and recommend that his sentence be X. If the prosecutor comes in at sentencing and says that they are satisfied that the accused fulfilled their part of the bargain, normally the judge will accept that at face value and go ahead and give the agreed-upon sentencing. But sometimes the judge wants to get further into the details of exactly how much the accused did to cooperate, and sometimes the prosecutor is unprepared to explain that to the judge. Here, it sounds like the judge felt somewhat sandbagged, felt the prosecutors weren’t as clear as they should have been, and also that Flynn isn’t being expected to do enough to justify a lenient sentence if Flynn was not also required to testify. It’s a gray area when the judge starts to agitate for an accused to do even more; that should ultimately be left to the prosecutor. The judge’s role is to accept or reject the agreement, not craft the agreement.
RigelDog:
Obviously a judge won’t take a guilty plea from a person simultaneously asserting his/her innocence. But Flynn was not doing that; he was NOT maintaining he was not guilty. So if that’s what Sullivan was talking about, it had nothing to do with what was happening at that moment.
I know that prosecutors are bound to turn over Brady materials, period. But bound by what? What happens if, as in the Flynn case, they say there are no such materials and the defense says there are, and they need to be turned over (and in fact, as we now know, there were such materials)? I found a case which said that when a person has already pled guilty and been convicted and the materials are requested later, the person is not entitled to them (don’t have time to search for it now). In Flynn’s case, Sullivan turned down a ton of such requests from Powell, saying that Flynn hadn’t proved the evidence listed would be exculpatory. How could a lawyer prove it would be exculpatory if the lawyer hadn’t seen it, and yet knew it existed? I’m referring to Sullivan’s decisions here.
Neo replied to me: “I know that prosecutors are bound to turn over Brady materials, period. But bound by what?”
Prosecutors are bound by case law and ethical duty to turn over Brady material. If they don’t, they can be sanctioned or disbarred.
“What happens if, as in the Flynn case, they say there are no such materials and the defense says there are, and they need to be turned over (and in fact, as we now know, there were such materials)?”
Nothing impels a prosecutor to disclose but the duty imposed upon them by law, perhaps augmented by a judicial order. If they don’t disclose they can lose their license to practice law. If they ignore a judge’s order they can be found in contempt of court and fined or even sent to prison (in Pa., up to six months). If they don’t disclose, any conviction they attain will be vacated if the violation is serious enough. A thoughtless, lazy, or dishonest prosecutor can hide important evidence and I suppose there’s a good chance they won’t be caught. As an officer of the court, they appear before a judge and assert that they have searched the files and nothing else is there. We had an interesting situation in Philadelphia where famous convicted cop-killer Mumia Abu Jamal, on one of his more recent, endless appeals, kept insisting to the judge presiding over the appeal that surely there must be evidence hidden in the DA’s files showing that the District Attorney who was in office at the time of Jamal’s conviction had acted improperly in deciding to seek the death penalty. We have over a hundred banker’s boxes of old files on this case by now, and we had several assistant district attorneys comb through every piece of paper and turn over any piece of paper that even had the prior DA’s name on it. The defense was still not satisfied and kept petitioning the judge to force more discovery. Finally the judge had our office bring over every single file box to his office, where his own clerks examined them. No smoking gun was found.
“I found a case which said that when a person has already pled guilty and been convicted and the materials are requested later, the person is not entitled to them (don’t have time to search for it now).”
I will get back to you on that. I left practice 2 years ago and can’t recall off the top of my head how the Brady violation would interplay with the attempt to withdraw the guilty plea.
“In Flynn’s case, Sullivan turned down a ton of such requests from Powell, saying that Flynn hadn’t proved the evidence listed would be exculpatory. How could a lawyer prove it would be exculpatory if the lawyer hadn’t seen it, and yet knew it existed?”
An attorney would do his or her best to present evidence and argument to convince the court that important evidence was being withheld, to state the obvious. It’s a terrible position to be in as a defendant if you really think that the state is hiding evidence and you can’t convince a court to do everything in its power to compel its production. You can appeal to a higher court and try to get them to remand to the trial court with an order that the court hold another hearing and make all efforts to find/consider the new evidence. In my experience, Sullivan’s behavior is bizarre. Even the most “pro-prosecution” judges I had cases before were adamant that discovery be liberally provided by the prosecution.
RigelDog:
Thanks, particularly for the last part of that. It certainly seemed to me that Sullivan’s denial of request after request after request for Brady materials was odd, but I didn’t know.
However, I found a couple of things that might interest you on this. Here’s an article from 2007. I don’t know whether what it says is still current, but this is on the first and second pages:
The article is 21 pages long. I’ve only read up to that part so far, because it’s so old I figured it might be outdated.
Here’s something newer (from one year ago), and although I don’t think it sheds too much light on the matter, it seems ominous:
And this is from this past March. It seems SCOTUS declined to hear the case.
Fractal Rabbit – mea culpa. I was quoting this and put your ID on by mistake.
Barry Meislin on May 28, 2020 at 9:17 am said: “…exquisite planning…”
Back from some research into Federal law, guilty pleas, and Brady material. It’s been fun!
First and foremost, Flynn’s case is in a post-guilty plea, pre-sentencing status. That makes all the difference in terms of the legal standards applied. Until he is sentenced, he is not “convicted.” The Federal rules of criminal procedure and case law provide that a person who wants to withdraw their guilty plea prior to be being sentenced should be permitted to do so in a fairly permissive manner. A claim of actual innocence will usually suffice. Here’s a quote from a good article on this topic, discussing a case with similar facts to Flynn’s where the government withheld important evidence: ” in United States v. Groll, the defendant moved to withdraw her guilty plea at her sentencing hearing based upon her legal innocence. After retaining new counsel, Groll learned that because the witness who had goaded her into selling drugs was actually a confidential informant, she
had a viable entrapment defense to the charges. Even though Groll had admitted the underlying facts that amounted to a crime during the guilty plea hearing, she asked the court to disregard that evidence because it was improperly obtained
through her entrapment. The court recognized that although ‘claims of innocence alone do not mandate permission to withdraw a plea … being legally innocent of the crime is a fair and just reason to withdraw a guilty plea” as long as such assertions are “substantiated by evidence.'” https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7096&context=jclc#:~:text='Federal%20Rule%20of%20Criminal%20Procedure,any%20fair%20and%20just%20reason.
In Flynn’s case, I don’t think he has actually made a motion to withdraw his guilty plea because he was still in great jeopardy as long as he didn’t have access to the complete evidence in the case and the government was still prepared to take him to trial. Then, the government stepped forward and made a motion to withdraw prosecution. Sullivan should simply acquiesce to the motion to withdraw the case. But if he does not do so, then Flynn would have to make a formal motion to withdraw the guilty plea and Sullivan would have to either grant it on argument or permit Flynn to have a full hearing to establish his grounds to be permitted to withdraw his plea and then make a ruling yea or nay. If Sullivan denied a this motion, then Flynn would have to appeal that ruling to a higher court. I don’t know if he would be permitted to make an interlocutory appeal but I assume so. Sullivan is being really stubborn here, because one way or another, Flynn will ultimately be permitted to withdraw his guilty plea, and the government will have to make a decision as to whether or not to try him. The government has already made it clear that it will decline to proceed. What’s scary is the possibility that if Sullivan isn’t stopped now, and Flynn has to go through another lengthy appeals process, that if/when Trump loses, the next US Attorney has the discretion to still press charges.
Neo: The Alvarez case is interesting but it concerns his civil suit against the city for the alleged misconduct on the part of the jail where he was held in that they did not provide all videotapes of the alleged assault he made on a guard. The good news is that Alvarez’s criminal conviction was indeed reversed on the basis of that same evidence. I wasn’t able to find a cite to the opinion that reversed his criminal conviction but reading over the pleadings in the civil action it was stated in passing as part of the procedural history.
I would recommend reading the Dissent in Alvarez v. City of Brownsville for a beautiful explanation of the state of the Federal law as to Brady material and guilty pleas, and why a Brady standard of mandatory disclosure should absolutely be a right possessed by a person who makes a decision to plead guilty.
Another relevant case made the (obvious to me) finding that, because guilty pleas must be entered into “knowingly,” that requirement is not satisfied when the accused was unaware of important evidence in his favor. United States v. Fisher, 711 F.3d 460 (4th Cir. 2013). That case involved a claim of legal innocence–police did find drugs and a gun in Fisher’s house and Fisher pleaded guilty, but later the head officer was convicted of having lied to obtain the search warrant. The court held that not knowing about the officer’s lies made Fisher’s guilty plea unknowing.
Finally, evidence is considered Brady material if it relates to either factual innocence or to legal innocence. Factual innocence is something like, there’s DNA or a videotape that shows I did not commit this crime. Legal innocence is something like, the government knew but did not disclose to me that the witness against me had a prior perjury conviction and my attorney would have been able to impeach their credibility if she had known. It seems to me that Flynn now has access to both kinds of Brady material. As to factual innocence, his lawyers did not have the transcripts of the telephone calls, which show no Logan Act impropriety, and they did not have full access to the 302s in order to compare what the FBI claims were “lies” about the telephone conversations with the actual content of the calls. As to legal innocence, there is a ton of impeachment evidence now relating to bad government actors. From what I’ve read so far, even those jurisdictions that will draw a line between Brady non-disclosure before a plea and non-disclosure before a trial will still give greater weight to evidence that shows factual innocence and allow relief on that basis.
RigelDog:
So do you think that, if the Flynn case hadn’t had the Barr intervention and all that resulted from that, and it had just involved Sullivan denying Flynn all the Brady material without all the national attention, Sullivan’s rulings would have been reversed on appeal for sure?
RigelDog:
Thanks for the work you’ve done and I’m glad you found it interesting.
By the way, Flynn apparently did move to withdraw his guilty plea, back in January.