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USA v. Flynn Part II: David Markus Responds: "Don and Kamal, You Have Not Convinced Me. The Judge Should Promptly Dismiss the Flynn Case."

by: Guest Blogger David Markus

First, let me congratulate Don on a wonderful addition to the blogosphere. Like trial lawyers, we bloggers are a dying breed. Second, let me thank him and Kamal for their thoughtful posts on my Washington Post piece. One reason I love blogging is that it gives us a chance to really explore issues that other social media platforms, like Twitter, aren't as good at. And third, I apologize for the length of this response.

I understand that there are some strong feelings on both sides of this one, especially because it involves Trump and Flynn. What I was trying to do in my argument was to take politics out of it. What do we want judges doing in cases that aren’t political where both the government and the defense agree that dismissal is warranted? It seems pretty obvious, at least to me, that judges should simply dismiss in those cases.

If that’s the case, then we should want the same result here, perhaps even more so. Judges simply are not equipped to deal with these sorts of political hot potatoes. And when they try to, it typically results in the public losing confidence in the judiciary. Bush v. Goreseems to be the best example of that.

Don makes the point that as a member of the public, he would like to know the reasons DOJ is dismissing. Me too! But Rule 48 is not meant as a fact-finding mission for the public. The criminal justice system is set up to protect the rights of the defendant. The public, not so much. And that’s a good thing. We don’t want to give the public standing to raise objections to plea agreements or other criminal case resolutions. The legislative branch can have hearings to find out what happened. And the public will certainly be able to exercise its will at the ballot box in November.

Don also raises the point that judges often reject agreements between the parties, including at sentencing. Fair enough. But I really believe that judges should not be able to go above the sentencing recommendations of the parties. Lower, yes. But not higher. If the parties say that the defendant is not a leader, then who is the judge to say otherwise. In our adversary system, it’s up to the parties to present their case, not some non-lawyer, wanna-be-cop probation officer. The judiciary is there to protect defendants, not to protect prosecutors. Judges are free to reject deals, like Judge Breyer did recently in the California case I discussed in the WaPo piece, but only to help and protect the defendant’s rights. Not to prod prosecutors into prosecuting or for more severe sentences. Prosecutors have enough power. If they want to dismiss a case, let’s let them dismiss and move on the next one. Our criminal justice system is bad enough as it is. We don’t need judges acting as backstops for prosecutors. They can take care of themselves.

Kamal also raises interesting points, the central one being that things are different because Flynn pleaded guilty. I don’t agree, especially here where Flynn moved to set aside his guilty plea. Our system, unfortunately, not only permits innocent people to plead guilty, it encourages it. If you haven’t read it, take a look at Judge Jed Rakoff’s essay: Why Innocent People Plead Guilty.

That’s why Kamal’s point that a plea hearing requires the active participation of a judge “to ensure that defendants aren’t being railroaded into admitting that they did something that they didn’t” might sound nice but isn’t based in what happens every day in every courtroom around the country. Sadly, that hearing is very pro-forma. Lawyers coach their clients how to get through it without getting asked a lot of additional questions. Lawyers tell their clients to do what they have to do so that they can get the benefits of pleading guilty (like avoiding decades in prison or avoiding having a family member charged, as Flynn reportedly did).

As for the cases he cites, Kamal agrees that the D.C. Circuit’s Fokker case supports my position. Although the Supreme Court case he discusses, Rinaldi, declined to address the issue of whether a trial court had the discretion to reject a motion to dismiss where the defendant consented, it did explain that “[t[he principal object of the ‘leave of court’ requirement is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant's objection.” In other words, the leave of court provision in Rule 48 is there to protect defendants, not prosecutors or the public.

I will conclude with the point that Justice Ginsburg raised just this month in United States v. Sineneng-Smith. A 9-0 Supreme Court (9-0!) reversed the Ninth Circuit for violating the party presentation principle, which says that judges should only decide the issues presented to them by the parties. Justice Ginsburg explained: “[C]ourts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.’”