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.

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?

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.

Barry Meislin on May 28, 2020 at 9:17 am said: “…exquisite planning…”

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:

One facet of current discussions of Brady in the context of guilty pleas, though, is distinct from discussions of Brady in the trial setting. Brady v. Maryland and its progeny clearly impose a due process duty on prosecutors to disclose in cases in which guilt is determined through trial. In contrast, whether Brady applies when guilt is determined by guilty plea has been and continues to be uncertain.

This article has three objectives. The first is to provide an overview of the development and current status of the law on the question of whether Brady v. Maryland applies in the context of guilty pleas. The second is to set forth the reasons why I fear that failure to disclose Brady material in the guilty plea context contributes to wrongful convictions.2 My final objective is briefly to critique Justice Breyer’s majority opinion in United States v. Ruiz, the only United States Supreme Court case to date that has addressed Brady in the guilty plea context.

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:

George Alvarez’s December 2018 petition maintains that department’s failure to turn over the video evidence that eventually resulted in Alvarez’s declaration of innocence was a Brady violation of the longstanding holding of Brady v. Maryland, which requires prosecutors to turn over exculpatory evidence. It tasks the Supreme Court with taking up the question of “whether due process requires the government to disclose exculpatory evidence before entering a plea agreement with a criminal defendant…

More than 9 of 10 convictions in the United States result from plea bargaining, which in some cases has resulted in the convictions of innocent people. A nationwide team of reporters examining guilty pleas has been exploring the phenomenon. The team has identified more than 130 cases nationwide in which defendants entered guilty pleas despite significant evidence of their innocence.

Alvarez and his attorneys are now asking the U.S. Supreme Court to step in, stating a “rule that permits the government to suppress exculpatory evidence to encourage an innocent defendant to take a plea deal cannot be squared with due process.”

And this is from this past March. It seems SCOTUS declined to hear the case.

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.

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.

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.

I don’t think that is me you’re quoting (5/28 @4:13pm) Doesn’t sound like me.