Michael Flynn DC Circuit Court of Appeals Hearing - June 12, 2020

how hard will this be to follow along? Why is the judge bringing up hypo's with a White LEO and a Black VICTIM??? Let me try to follow this exchange. 5 hours later. Lets type it all out to read it, because listening to this reminds me exactly of why lawyers are toxic.

this is really long, so long it is in 3 parts:

Part 1

Judge Robert Wilkins, BHO appointee, brings race into the hearing

Deputy Solicit General Jeffery B. Wall, arguing ambu chaser

FF to 40:54 for audio

Judge Wilkins: What Fakker made clear there are different considerations at different stages of a criminal case to the extent you credit that Fakker is binding on Rule 48a and here we have 2 different district judges that as a part of their obligations under rule 11 made factual findings as to materiality and the basis for plea etc. and so the gov't motion doesn’t just implicates the gov't position, it implicates those rulings that 2 district court judges have made so the case is not in the same posture as it would be prior to complete agreement in that respect.

Lawyer Wall: I absolutely agree with part of that Judge Wilkins. It is certainly true, there are different concerns at different stages, and Fakker says that accepting the plea agreement does call on the courts authority because it has to ascertain whether there is a factual basis for the plea but it contrasts that with dismissal and take a case like into the part i disagree with is once you've crossed that plea line and a defendant has pleaded that suddenly that everything that follows invokes the courts authority in some way that changes the calculus and Fakker says this is not true and the best example of this is is in Re??? United States seventh circuit. District court wasn’t just a plea. a sentence. and in light of the sentence the gov't wanted to dismiss some of the charges because they no longer wanted to precede with them and the district court was upset about that and wouldn’t allow the gov't to dismiss and the 7th circuit said look it doesn’t matter even if the gov't is trying to get around the district courts sentencing authority it's the master of its own case and it gets to decide when to bring and when to dismiss charges.so I agree with rule 11 acceptance of a plea agreement if that were what was before the court. That’s different. but this and Fakkers language is crystal clear about this it's about accepting DPA's and dismissing on rule 48a's and i quote "are not formal judicial actions imposing or adopting terms " on defendants or parties. They are not formally signing off on anything. When Judge Sullivan grants this Rule 48 motion as he is required to he is not taking back anything he has done before he is not expressing any opinion on the gov't case, he is not saying he agrees or disagrees he is just acknowledging a coequal branches exercise of its APOUR executive power.

Judge Wilkins: I have a question about your position, the US position on its representations in support of a rule 48a motion. It is your position that the gov’t does not have to state all of its reasons in support of dismissing its case, only those that it chooses to share with the court.

Lawyer Wall: it is Judge Wilkins, but I don’t think any of that turns on that here that you would have to agree with me on that. I think we could have come in and just moved to dismiss without providing an explanation to the district court, we do that at times in dist. Court routinely grant them, no courts ever reversed in a case like that. But here we did, we went beyond what we needed to do under the circumstances we provided a robust explanation as to the district court as to whatever rule 48 might require on a procedural matter and we cleared that hurdle and as Ms. Powell said I think this is one of the most robust Rule 48 motions that you will find.

>>9588525

Part 2

FF to 44:59 on video for next section

Judge Wilkins: So so to understand my concern suppose you have a case where a federal law enforcement officer has pleaded guilty to um a criminal or civil rights violation for using excessive force. And then the gov’t says they have uncovered some Brady evidence and um they moving to dismiss based under 48a AFTER the guilty plea, but part of the reasoning of the authorities was that is to why they would not be able to prove this case beyond a reasonable doubt plus was the defendant is black, I’m sorry the VICTIM is black, the defendant, law enforcement officer is white and they did not believe the jury would believe the black victim over the white officer without corroborating evidence and that’s unfortunate but that’s the reality and so that was one of their reasons for dismissing but they thought that wouldn’t play well so they didn’t say that in the motion they just said that the exculptatory evidence was the reason their dismissing. IS THAT PROPER???

Lawyer Wall: so two point Judge Wilkins, one is legal and one is practical. The legal one is that there is an easy one to deal with that here given the Mandamus posture. I think Fakker is clear that the gov’t as long as it provides any reason at all, and it is not an unconstitutional reason, can DISMISS. So yes I think that that motion there should be granted and the easy way to deal with that with the Mandamus posture is to say look even if you think there is room for some kind of a Richards like rule or we think there’s

Phone issue Beep beep

Lawyer Wall: it is not clear and indisputable

Judge Wilkins: I’m sorry I couldn’t hear please repeat the last 10 seconds

Lawyer Wall: if you thought that it wasn’t clear under Fakker whether the court could allow that type of explanation you could try to leave that open and just say whatever that might be just on the merits it is clear and undisputable whatever the bar is the gov’t met it here thru its full and fulsome explanation. And the Practical thing I would say is I certainly hope the gov’t has NEVER filed a motion that or like that and I am not aware of it, but even then, YES, the court should have to grant it, because the gov’t, whatever its motive does not want to proceed, what you would see, it other defendants walking in, attaching that motion and bringing Armstrong claims stating the gov’t is making racially based decisions in its prosecutions and based on your hypothesis they’d have pretty good grounds for that. I think there are remedies for this other than having to contort Rule 48 to get into what the executives motives are

Judge Wilkins: if there’s remedies for it you can’t know there are remedies unless it is happening. And if the gov’t does not have to disclose all of its reasons then you never know that it’s happening. And if the district court isn’t allowed to ask whether there are any other reasons you would never know that it’s happening, right?

Lawyer Wall: but that would be equally true in a case like Fakker judge Wilkins. I mean the District court could always say the US Attny has cut a sweetheart deal with the corporate defendants here and so I want to get some briefing and I want some argument and hearing on whether there was improper and influence brought to bear on this and the point of Fakker is that it ISNT to the courts to POLICE whether the executive has pure or impure motives. The remedy for those occur in political and public arena’s, retaliation from the other branches, dismissal of corrupt executives officials even impeachment if it comes to it, but Rule 48 as Fakker says is not the mechanism for policing the kind of harms that your worried about and if a court could do this sort of thing you’re talking about then I think Fakker has to be a dead letter because with respect to Rule 48 or a DPA a court concerned with the executives motives could always inquire and I understand that inquiry to be exactly what Fakker shuts off.

>>9588534

Part 3

FF to 52:20

more race from Judge Wilkins

Judge Wilkins: so even if the prosecutor was dismissing the case because it did not believe that a white police officer should have to answer for using excessive force on a black defendant, and they say that in their pleading under Rule 48a the district court still has to grant the motion?

Lawyer Wall: Judge Wilkins I don’t think that the court can force the executive to keep THAT case alive because in the absence of a case or controversy, because as I tried to day earlier it may as well be a basis for dismissing OTHER prosecutions, but even if you disagree with me on that the reason why your hypothetical has force is because it is an UNCONSTITUTIONAL MOTIVE, it is the kind of thing that can qualify for Armstrong and you can bracket that question off if you think Fakker isn’t as catagorical as I do, BECAUSE THERE IS NOTHING LIKE THAT HERE, and I don’t think you can leverage that Judge Wilkins as to say if we can inquire ….. –interrupted—

Judge Wilkins: What does “leave of court mean then?” What work at all does Leave of Court do then?

Lawyer Wall: Well it does work with, of course, opposed motions to dismiss, and the work that it does as a far smaller set of unopposed motions in a situation like this is it allows the court to make sure that if the considered decision of the executive you don’t have a prosecutor who’s been bribed and it’s the consideration of the defendant, that the defendant has been poorly counseled, imagine a situation in which the defendant agrees to a dismissal w/out prejudice, even when the gov’t has repeatedly been bringing charges and dismissing them on the eve of trial I think certainly a district court is warranted in asking a defendant “Are you sure about this?” because it sure seems like the gov’t keeps yanking your chain???

MORE RACE

Judge Wilkins: Why isn’t it the case if the government makes a considered but RACIST decision that it just not want to have a WHITE OFFICER stand trial for excessive force against a BLACK VICTIM that the district court can just deny motion and then the political chips can fall where they may, and perhaps, from the pressure from the public, or congress or whatever, the district court may not be able to itself to force gov’t to prosecute the case, but maybe thru the operation of the legistlative branch, or other pressures thru the public and the media, a new prosecutor is appointed, and the case proceeds? Why isn’t that exactly what leave of court should do??????

Lawyer Wall: Judge Wilkins, your question recognizes the answer…….

AND I AM DONE

FUCK LAWYERS!!!

>>9588534

when you spend hours typing a post and don't redtext the first time Judge Wilkins brings race into the hearing…

FF to 44:59 on video for next section

Judge Wilkins: So so to understand my concern suppose you have a case where a federal law enforcement officer has pleaded guilty to um a criminal or civil rights violation for using excessive force. And then the gov’t says they have uncovered some Brady evidence and um they moving to dismiss based under 48a AFTER the guilty plea, but part of the reasoning of the authorities was that is to why they would not be able to prove this case beyond a reasonable doubt plus was the defendant is black, I’m sorry the VICTIM is black, the defendant, law enforcement officer is white and they did not believe the jury would believe the black victim over the white officer without corroborating evidence and that’s unfortunate but that’s the reality and so that was one of their reasons for dismissing but they thought that wouldn’t play well so they didn’t say that in the motion they just said that the exculptatory evidence was the reason their dismissing. IS THAT PROPER???

>>9588538

good links to terms being argued today:

lots of articles online leading to this today.

summaries of Rinaldi vs UD; Rule 48; US vs Fokker.

Rinaldi vs US

In 1977, in Rinaldi v. United States, the Supreme Court addressed a district court’s decision to deny a Rule 48(a) motion. The defendant, who had been convicted of robbery in state court, was tried and convicted for offenses arising out of the same robbery in federal court. The Justice Department filed a Rule 48(a) motion to dismiss the federal charges, but the district court refused to give leave of the court because, the judge wrote, the prosecutor had acted in bad faith by misrepresenting his original authorization from the Justice Department to file charges.

rule 48

In 2016, the D.C. Circuit reemphasized that a district court reviews a Rule 48(a) motion “primarily” to protect a defendant from dismissals that are part of a scheme of prosecutorial harassment to repeatedly bring and then dismiss charges.

US vs Fokker

The D.C. Circuit decision, U.S. v. Fokker Services, concerned whether a district court could properly deny a motion to delay a trial under the Speedy Trial Act’s exception for deferred prosecution agreements between the parties “with the approval of the court” because it concluded that the deferred prosecution agreement at issue was too lenient.

https://www.lawfareblog.com/justice-department-wants-drop-flynns-case-can-judge-say-no

writ of mandamus

Powell asking for this to free Flynn. Court overstepped, Free Flynn.

>>9588578

left is when DeBlasio was 1st termer. 2nd was nothing to hide.