Washington Post opinion piece on Michael Flynn

I wrote this editorial for the Washington Post today.  It was going up on the website just as the news broke that Judge Sullivan appointed Judge Gleeson to argue against DOJ's motion to dismiss.  Really interesting.  I'd love to hear your thoughts.  Here's the introduction:

U.S. District Judge Emmet G. Sullivan on Tuesday took action to delay the Justice Department’s move to drop charges against former national security adviser Michael Flynn. Sullivan says he expects legal experts and independent groups to weigh in on the department’s decision not to prosecute Flynn for lying to the FBI.

The judge’s ruling was a mistake: He should have immediately dismissed the case. Sullivan certainly should not heed those urging him to deny the Justice Department motion, which would force prosecutors and Flynn to a sentencing hearing or a trial that neither party wants. John Gleeson, a former judge, and two others thoughtfully argued this week that Sullivan should do just that. And on the heels of that opinion, Sullivan has appointed Gleeson to argue against the motion to dismiss and to explore whether Flynn should be held in contempt.

Judges, though, have no special interest in forcing prosecutors to prosecute. The nation’s court system is meant to adjudicate disputes between parties and to protect defendants from overreaching prosecutors. It is an adversary system, meaning that each side is responsible for presenting its own case.

"Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?"

That’s how Judge Charles Breyer ends this must read opinion in which he rejects a plea agreement where the government tried to get a defendant to agree to waive bringing a compassionate release motion until 180 days after asking BOP.

Breyer makes so many good points in his Order:

— that Congress said compassionate release should be available after 30 days, not 180.  So why should DOJ undue that provision.  (And even the 30 days can be waived in an emergency like this pandemic).

— Compassionate release isn’t only available in times of global crisis, like corona.  But there are lots of other times both for the individual and for other people in the family: “A terminal diagnosis. The death of a parent caring for his or her children alone while their other parent is imprisoned. An accident that renders a person unable to feed, bathe, or move without assistance. Compassionate release exists to address these calamities as well."

— It’s not good enough to say that this is a contract with parties bargaining because those parties are not on equal footing:  "It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table."  This is one reason why courts should be able to reject plea deals when they are too harsh but not when they are too lenient.  Courts are there to check the government’s immense power, as Breyer is doing in this case.

Read the whole thing.  In the meantime, here’s the introduction and the conclusion:

Must a term of imprisonment be set in stone, no matter what happens after it is imposed? Should a court be able to reduce a sentence when unforeseeable tragedies change its consequences? What if the defendant’s children are effectively orphaned by the death of their other parent? What if a debilitating injury makes it impossible for the defendant to care for him or herself in prison, or recidivate outside of it? What if a terminal diagnosis turns a brief term of imprisonment for a minor crime into a life sentence? What if a global pandemic poses a mortal risk to an immunocompromised inmate who nobody intended to die in jail? When should a court be able to consider such events and revise a previously imposed sentence accordingly? How difficult should it be for a defendant to request this type of relief?
Congress has provided one set of answers to these questions, in the First Step Act of 2019. See 18 U.S.C. § 3582(c)(1)(A). The United States attorney’s office has very different answers in this case, for this defendant. See Plea Agreement (dkt. 206) ¶ 5. Because those answers undermine Congressional intent and all but foreclose this defendant’s ability to request a critical form of relief, the Court rejects the proposed Plea Agreement.
***
It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table. See Erik Luna & Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413, 1414–15 (2010). As to terms such as this one, plea agreements are contracts of adhesion. The Government offers the defendant a deal, and the defendant can take it or leave it. Id. (“American prosecutors . . choose whether to engage in plea negotiations and the terms of an acceptable agreement.”). If he leaves it, he does so at his peril. And the peril is real, because on the other side of the offer is the enormous power of the United States Attorney to investigate, to order arrests, to bring a case or to dismiss it, to recommend a sentence or the conditions of supervised release, and on and on. See Robert H. Jackson, The Federal Prosecutor, 24 J. Am. Judicature Soc’y 18, 18 (1940). Now imagine the choice the Government has put Funez Osorto to. All that power—and the all too immediate consequences of opposing it—weighed against the chance to request release in desperate and unknowable circumstances that may not come to pass. That Faustian choice is not really a choice at all for a man in the defendant’s shoes. But the Court has a choice, and it will not approve the bargain.
That leaves only one question, which is why? Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion? Defendants released through the compassionate release program are less than a tenth as likely to recidivate as the average federal prisoner. Inspector General Report at 49–50. And the Department of Justice itself estimates that broader use of compassionate release could save taxpayers millions and free desperately needed space in BOP facilities. Id. at 45–48. The waiver of compassionate release is senseless.

The order reminds me of one of the first cases I had as a young public defender before Judge Norman Roettger.  For those of you who don’t know Roettger, he had a handlebar mustache and wore a gun around his ankle in court... The young prosecutor at the time put in an appellate waiver into the plea agreement as was his orders from above.  I told him we couldn’t agree to it.  But the prosecutor told me that he had no discretion to take it out.  Either we go to trial, plead straight up to the indictment, or agree to the provision.  I couldn’t understand why the prosecutor was being so difficult about it.  My supervisor at the time told me that Judge Roettger was vocal about not accepting these provisions and that we should just set it for plea and let the judge know what was happening.  So we show up for court and tell the judge about the proposed deal.  He asked the young prosecutor: “So do you work for the Department of Justice of the Department of INJUSTICE!!?? What if I commit legal error?  Shouldn’t the defendant be permitted to appeal and correct that legal error?!”  He then made the prosecutor scratch out that provision in front of a packed courtroom and took the plea agreement without it.  Quite a moment, especially for a young lawyer who was nervous about the gun making an appearance.

What a week in the world of white collar criminal law (UPDATED)

Last week was white collar law overload. Bridgegate (convictions reversed by SCOTUS). Varsity Blues (motion to dismiss for prosecutorial misconduct denied). Michael Flynn (prosecutors move to dismiss). And more.

Some random thoughts about these cases:

1. Why does it take the Supreme Court (9-0) to continue to reverse fraud convictions. The government is clearly overreaching with these statutes and yet lower courts almost never dismiss.

2. Same with respect to lower courts and prosecutorial misconduct. They almost never dismiss on prosecutorial misconduct claims, so it was no surprise that the district judge did not dismiss the Lori Loughlin case. Why not? How will prosecutors ever get the point that they should not engage in such behavior. Maybe the Loughlin lawyers will now file a motion to dismiss based on Bridgegate. After all, if fraud requires obtaining money or property, then lying to gain college admission may not be enough for wire fraud.

3. There has been lots of criticism for the in the Flynn case. But let's take a step back for a second. Remember that Flynn had moved to vacate his plea because the new DC prosecutors had recently turned over Brady material that had yet to be disclosed. We should be applauding the prosecutors for doing that. (A big shout out to Michael Sherwin, the DC supervisory prosecutor who made sure that disclosure happened after previous prosecutors did not disclose). If the judge had vacated the plea and allowed Flynn to go to trial, would the critics have been happier if the government had gotten spanked at trial? This was a distinct possibility because the lead witness for the government was former agent Peter Strozk. Imagine that cross! Comey would likely have also been a witness... Anyway, let's hope this materiality standard explained by Barr in the Flynn dismissal memo is used across the board for criminal defendants. Wouldn't that be a good thing? Of course our justice system should not be politicized, but there is quite a bit to grab onto in that Flynn motion to dismiss.

4. Some have said that the Flynn judge should deny the motion to dismiss. That is a bad idea and would set a very bad precedent. The Department of Justice brought the case. It's their prerogative to drop the case. That's how the adversary system works. Judges do not dismiss criminal cases when the defense asks. Now they aren't going to dismiss when the prosecutor asks? Rule number 1: never dismiss cases. Rule number 2: when in doubt, see rule number 1.

UPDATE 5. Mary B. McCord, an acting assistant attorney general for national security at the Justice Department from 2016 to 2017, wrote this op-ed in the New York Times, called "Bill Barr Twisted My Words in Dropping the Flynn Case. Here’s the Truth." I have to laugh in reading her piece. She complains that the 302 of her interview is "an interesting read" with "colorful adjectives" that "twist[s] her words." Now that's rich. The criminal defense bar has always said that 302 reports summarizing interviews are wholly unreliable and that interviews should be recorded. Prosecutors and investigative agencies like the FBI and DEA refuse to record and judges let agents testify from these reports about their interviews. McCord worked at DOJ for decades. Under her watch, thousands of non-recorded interviews took place and prosecutions relied on 302 and other interview reports to convict people. Now that she is reading her own 302, she complains. Welcome to the defense bar, Ms. McCord.

Blue Angels fly over Ferguson courthouse

First loop around downtown pic.twitter.com/L2AX1yg86z

— David Oscar Markus (@domarkus) May 8, 2020

Blue Angels flying over downtown Miami pic.twitter.com/ZBXcHVRLcp

— David Oscar Markus (@domarkus) May 8, 2020

Bridgegate convictions reversed

9-0 per Kagan.

Another example of the lower courts not stepping up and letting prosecutors run wild using fraud statutes.

Kagan's introduction:

For four days in September 2013, traffic ground to a halt in Fort Lee, New Jersey. The cause was an unannounced realignment of 12 toll lanes leading to the George Washing-ton Bridge, an entryway into Manhattan administered by the Port Authority of New York and New Jersey. For decades, three of those access lanes had been reserved during morning rush hour for commuters coming from the streets of Fort Lee. But on these four days—with predictable consequences—only a single lane was set aside. The public officials who ordered that change claimed they were reducing the number of dedicated lanes to conduct a traffic study.In fact, they did so for a political reason—to punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid. Exposure of their behavior led to the criminal convictions we review here. The Government charged the responsible officials under the federal statutes prohibiting wire fraud and fraud on a federally funded program or entity. See 18 U. S. C. §§1343, 666(a)(1)(A). Both those laws target fraudulent schemes for obtaining property. See §1343 (barring fraudulent schemes “for obtaining money or property”);§666(a)(1)(A) (making it a crime to “obtain[] by fraud . . . property”). The jury convicted the defendants, and the lower courts upheld the verdicts.The question presented is whether the defendants com-mitted property fraud. The evidence the jury heard no doubt shows wrongdoing—deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct. Under settled precedent, the offi-cials could violate those laws only if an object of their dis-honesty was to obtain the Port Authority’s money or property. The Government contends it was, because the officials sought both to “commandeer” the Bridge’s access lanes and to divert the wage labor of the Port Authority employees used in that effort. Tr. of Oral Arg. 58. We disagree. The realignment of the toll lanes was an exercise of regulatory power—something this Court has already held fails to meet the statutes’ property requirement. And the employees’ labor was just the incidental cost of that regulation, rather than itself an object of the officials’ scheme. We therefore reverse the convictions.

"Last week, likely for the first time in our history, we held no jury trials—not in my courtroom or in any other courtroom across the country."

That's how Judge Roy Altman starts this piece, "What we lose with jury trials on hold," in The Dispatch.  The whole thing is definitely worth a read.  Here's how it starts out:

Last week, likely for the first time in our history, we held no jury trials—not in my courtroom or in any other courtroom across the country. We have had jury trials, in every state in the union, for hundreds of years—since before we ratified the Constitution, before Jefferson wrote the Declaration of Independence. The jury trial is part of the fabric of who we are as a nation: John Adams first became famous for representing British soldiers before a Boston jury; Hamilton and Burr first grew to loathe each other in front of a New York jury; and Lincoln first perfected his plainspoken prose “riding circuit” with the judges and juries of rural Illinois. We will miss our jury trials—now more than ever—because they are, as Adams once called them, the “heart and lungs” of our democracy.
In political elections, our individual vote gets drowned out in a sea of thousands, or tens of thousands, or—in the context of presidential politics—even tens of millions of votes. But, in the jury room, as anyone who has ever seen 12 Angry Men knows, every vote counts—and not just as one vote out of 12. Because a jury’s verdict must (in most cases) be unanimous, in the jury room, any one vote counts as much as all the other votes combined. And that’s true whether the holdout vote is black or white, rich or poor, religious or agnostic.
In my courtroom, when I pick juries, I make it a point to look into the jurors’ faces as I call out their names. And, invariably, I see one unambiguous emotion imprinted there: horror. How—they seem to be thinking to themselves—could I have been this unlucky? Why—out of this cobbled-together collection of human beings—did this judge pick me? But, by the end of the trial, when I go back into the jury room to hand the jurors’ their certificates, and to thank them for their service to their community, I gaze into their faces again. And, this time, I inevitably see an entirely different emotion there—and that is gratitude. Why? Because, however toxic our politics might become—however much the national mood makes us feel as though we’re divided beyond repair—jury service reminds everyday people of how vibrant and alive our democracy truly is.

In other feel good news, you *have* to watch this graduation movie that UM Professor Ricardo Bascuas put together. It is truly incredible:

The law school asked faculty for short videos to mark graduation. Mine is a stringcite to key life lessons and a toast to our #ClassOf2020. #WeDontNeedRoads #WereAlreadyThere #LifeMovesPrettyFast #TakePleasureInTheDetails #BeExcellentToEachOther #DontGetCocky #DontCrossTheStreams pic.twitter.com/Ga7MFknn0k

— Ricardo Bascuas (@rbascuas) May 6, 2020

Finally, I wonder whether this was one of the advocates or one of the Justices.  Either way, I hope this doesn't happen to you during your next telephonic argument, let alone one in the Supreme Court:

LISTEN: Toilet flush during U.S. Supreme Court oral argument (h/t @nicninh) pic.twitter.com/He3QGMzvJI

— Jeremy Art (@cspanJeremy) May 6, 2020

Justice Ruth Bader Ginsburg is in the hospital

And now half the country is holding its breath until November, scared that the Court might tilt even more conservative.  From the AP:

Justice Ruth Bader Ginsburg was hospitalized Tuesday with an infection caused by a gallstone, but plans to take part in the court’s arguments by telephone Wednesday, the Supreme Court said.
The 87-year-old justice underwent non-surgical treatment for what the court described as acute cholecystitis, a benign gallbladder condition, at Johns Hopkins Hospital in Baltimore.
She is resting comfortably and expects to be in the hospital for a day or two, the court said.

But Ginsburg is a tough cookie.  She participated in oral argument yesterday and today, and says she will call in front the hospital tomorrow.  Here’s hoping for a speedy recovery!

It’s been an interesting two days of arguments.  Although I like the free-for-all of judges asking questions when they see fit, this format of asking questions by seniority has led to some interesting exchanges.  And we have seen Justice Thomas ask questions two days in a row!  Justice Sotomayor is all of us as she has forgotten to unmute her phone two days in a row. From AJC:

For a second straight day, Justice Clarence Thomas - who once went more than a decade from 2006-2016 without asking a single question in oral arguments - was instead a veritable legal chatterbox by phone."What has changed since this case was here last?" Thomas asked attorneys, in a case about rules related to federal funding for HIV/AIDS relief by overseas affiliates of U.S. non-profit groups.
***
“Justice Sotomayor?" Chief Justice John Roberts said, indicating that Sotomayor was next up for questions.After eight seconds of silence, the Chief Justice repeated himself."Justice Sotomayor?"There was a noise on the line, and an apology."I am sorry, Chief," Sotomayor said, sounding a bit sheepish. "Did it again."

Oops, I did it again...

May the 4th be with you. (UPDATED)

UPDATE -- the Supreme Court arguments were interesting this morning. The Court didn't collapse because there was live-streaming. The big news was that Justice Thomas asked questions! Here's some coverage.

Thomas asked the questions via audio teleconferencing in a case on whether Booking.com could trademark its namesake.

The last time Thomas, who is the only African-American and the only Southerner on the court, asked a question was in March 2019, in a case involving a black Mississippi death row inmate, Curtis Flowers, who was tried six different times for the 1996 murders of four people in a furniture store.

Before that, Thomas asked one question in 2016, less than two weeks after the death of Justice Antonin Scalia. That question came 10 years after the last time Thomas had chimed in during oral arguments.

"Could Booking acquire an 800 number that's a vanity number, 1-800-booking for example, that is similar to 1-800-plumbing, which is a registered mark?" Thomas asked to the U.S. government's lawyer, Erica Ross.

After Ross' response, Thomas followed up: "That could be true, but I'd like you to compare this to Goodyear," Thomas said, referencing a past case. "In Goodyear, you had a generic term, but you also had an added term, such as company or inc, which any company could use. With Booking here there could only be one domain address dot com, so this would seem to be more analogous to the 1-800 numbers which are also individualized."