by:  Don Samuel

At the heart of the punitive phase of our criminal justice system are the twin goals of deterrence and retribution.  At least, that is how we generally view the reason that defendants are subject to punishment.
 
But what about lawyers who engage in misconduct during the course of the proceedings?  How do we address their misbehavior?  The answer is: erratically, and often with forgiveness, and the granting of second (or third) chances.  At least, that is historically what happens when prosecutors violate the rules of the court, including violations of the constitutional rights of the defendants who are prosecuted.  
 
Consider, for example, Brady violations.  These are violations of the rules of discovery that govern practice in criminal cases: the Constitution requires that the prosecution team (including law enforcement officers and prosecutors) furnish to the defense any exculpatory information, or information that impeaches the testimony of a prosecution witness.  Sometimes, it is debatable whether a particular item of information really qualifies as “exculpatory;” but sometimes it is as clear as the day is long. 
 
What happens when a court finds out after trial that a prosecutor violated Brady and failed to reveal information that was exculpatory?  Generally, the answer to that question depends on how important the information was compared to the strength of the prosecution’s case.  Hypothetically, if the prosecution had a DNA sample or a hair sample that exonerated the defendant and the prosecutor or the police fail to reveal the evidence to the defense, then the defendant will be granted a new trial.  If the prosecutor had information that was comparatively insignificant, compared to the overwhelming evidence of the defendant’ guilt, nothing will happen.  But in neither circumstance the prosecutor who improperly withheld the information suffer any consequence.
 
Why do the twin goals of deterrence and retribution not apply in these situations?  When a defendant is charged with a crime, does the court ever respond, “Harmless error?”  If everybody in the system believes that compliance with the Constitution is important and that providing exculpatory information to the defense is an indispensable constitutional guarantee, why is there rarely any punishment for the misbehaving police or prosecutor who violate the command of Brady?  We are attaching a short summary of forty pages of decisions in the federal appellate courts in which the court found Brady violations, and yet, no consequences for the prosecutors.  And there also Georgia appellate decisions in which convictions were reversed based on Brady violations and not a hint of any sanction for the prosecution.  Where is the deterrence?  
 
That is the reason that a recent decision in New York is worth reviewing.  The case involved a federal prosecution of a man for violating the Emergency Economic Powers Act, as well as bank fraud, and money laundering.  The opinion is from he Southern District of New York. USA v. Nejad, 18-224 (S.D.N.Y. June 9, 2020). The defendant was convicted, but shortly after trial, the government moved to dismiss the charges – after conviction – apparently recognizing that Brady information was improperly withheld from the defense during trial.  Judge Alison Nathan was not satisfied with simply dismissing the charges.  She entered an Order demanding answers:  How did this happen?  Why did this happen?  What kind of training do the prosecutors have in the world-renowned SDNY United States Attorney’s Office?   
 
This reminds us of a case we handled in the Fourth Circuit in which the appellate court determined that Bradyinformation was withheld from the defense during trial. The Fourth Circuit was outraged (kind of) and insisted that a copy of the decision be personally delivered to the Attorney General of the United States. This is what the Fourth Circuit wrote in that case:
 
Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict. But that is not the true problem. The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants' convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony. Make no mistake, however. We may find such practices “harmless” as to a specific defendant's verdict, but as to litigants in the Eastern District of North Carolina and our justice system at large, they are anything but harmless. “No [one] in this country is so high that [she or] he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.
 
We urge the district court in the Eastern District of North Carolina to meet with the United States Attorney's Office of that district to discuss improvement of its discovery procedures so as to prevent the abuses we have referenced here. Moreover, if this sort of behavior continues in subsequent cases, this Court may wish to require that the United States Attorney for the Eastern District of North Carolina, as well as the trial prosecutor, be present at oral argument so that the panel can speak directly to her or him about any alleged misconduct. Sanctions or disciplinary action are also options.
 
To underscore our seriousness about this matter, and to ensure that the problems are addressed, we direct the Clerk of Court to serve a copy of this opinion upon the Attorney General of the United States and the Office of Professional Responsibility for the Department of Justice. The transmittal letter should call attention to this section of the opinion.
 
We do not mean to be unduly harsh here. But “there comes a point where this Court should not be ignorant as judges of what we know as men [and women].” … What we know is that we are repeatedly confronted with charges of discovery abuse by this office. What we know is that our questions regarding this abuse remain unanswered. And what we know is that such conduct is unacceptable. Appropriate actions need to be taken to ensure that the serious errors detailed herein are not repeated. Whatever it takes, this behavior must stop.  U.S. v. Bartko, 728 F.3d 327, 342–43 (4th Cir. 2013).
 
We are also reminded of the decision in the Shaygan case in the SDFla, where the district court denounced the misconduct of the prosecutors and their supervisors, who surreptitiously taped the defense attorney who was interviewing witnesses and did not reveal what they had done until the middle of trial.  The 45-page decision of the district court in that case is well-worth reading, though the award of attorney’s fees to the defense was later reversed by the Eleventh Circuit.  The punishment of the prosecutors who engaged in this outrageous behavior?  One prosecutor was transferred from the criminal division to the civil division of the US Attorney’s Office in Miami and another was demoted from her supervisory position.   
 
And who is unaware of the abundant Brady violations in the prosecution of the Alaska Senator, Ted Stevens, whose conviction was set aside at the request of Attorney General Eric Holder based on the prosecutors’ persistent violations of the Senator’s constitutional rights? 
 
But we ask, again, were prosecutors deterred from further discovery violations?  Is the government’s response simply, “The reversal of the conviction and the public shaming of the prosecutor is sufficient deterrence.” That certainly never works for us when we represent a defendant being sentenced in federal or state court.  Can you imagine a defense attorney arguing to a judge, “Please give my client a second chance, because there is no need to sentence him to jail, or impose a fine, because he has learned his lesson and he is ashamed and will not let it happen again.”  Or how about this:  “Please do not sentence my client to jail; his boss is going to talk to him and require him to take a short online course that instructs him not to commit felonies anymore … problem solved, case closed.” 

by:  Don Samuel

This morning, SCOTUS granted certiorari in a Texas death penalty case and found that the lawyer provided ineffective assistance of counsel, but remanded for further consideration by the Texas appellate court about the prejudice prong of the Strickland ineffective assistance of counsel test.
 
Also, in Georgia’s blockbuster Title VII case, the Supreme Court decided: An employer who fires an individual merely for being gay or transgender violates Title VII.  Justice Gorsuch wrote the opinion.

by:  Don Samuel

I used to think that the most common lawyer answer to client questions began with the qualifier, “It depends.” This generally is a prelude to a number of hypotheticals that demonstrate the lawyer’s knowledge of so many factors that would affect the answer to the client’s question:  “It depends which judge is assigned to the case.” Or “It depends on whether the statement is offered for the truth of the matter asserted, or not.”  Or “It depends on whether the co-defendant becomes a government witness.”  Or “It depends on whether the jury believes John or Joe.”  Or, "It depends if the expert prepares a written report or not."  
 
But now, I believe that the most common question asked by clients begins with the word, “When ...” (“When will the courts open?”  “When will trials be held?”  “When can I come to your office in person?”  “When will the judge rule on my Compassionate Release Petition?”) and I have determined through a sophisticated algorithm that since mid-March of this year, the most common lawyer answer to a client’s question begins with, “I don’t know.”   
 
Here is an exception:
 
I sent an email to a client on Friday that said, simply, “If you ask me one more question that begins with the word, ‘When …’ I am going to fire you as a client.”  
 
He responded, “When can I start asking you questions that begin with the word ‘When?’”
 
To which I replied, “You will need to ask your new lawyer that question.”

by:   Kristen Novay

Most of us lawyers may come out of quarantine feeling like we have forgotten how to practice law. As trial attorneys, it’s important that we keep our courtroom skills sharp in preparation for the inevitable back-to-back trials we will face when the courthouses re-open. Here are some helpful methods you can use at home with your children, partner, or loved ones to help you stay on the ball.
 

1. Keep your cross-examination techniques strong by practicing them on your family. For example, “Thank you for that information, dear, but you have yet to answer my question. Do you need me to repeat it for you?”
2. While you are working from home, train your children to ask to “approach the bench” before they discuss a matter with you. 
3. For appellate attorneys, insist that your children substitute the phrase “may I appeal” in lieu of bickering. For example, “Dad, may I appeal your order that 9 P.M. is too late for ice cream?” Then reverse yourself or sustain your original decision as you see fit.
4. Sprinkle some Latin phrases into your discussions! Fun for everyone and doesn’t need to be in the legal context. For example, “Before you eat that donut have you considered your summer corpus?”
5. When having a simple conversation or disagreement with your partner, helpfully suggest that their argument is based on “bad law” or some “Ninth Circuit nonsense.” The point is that it isn’t binding on you.
6. Randomly remind your family that they are “under oath.”
7. For those of you with pending cases in “less reasonable courtrooms,” put the family cat in a robe and let him decide disputes.
8. Is your partner spending too much on Amazon Prime? Train the family dog to sniff out packages, intercept them, and mark them as exhibits or use as evidence of his/her “lavish spending.” Was the package meant for you? No problem! Move to suppress it and explain the phrase “curtilage” to them. It’ll be a hoot.
9. For the prosecutors, take this time to sniff out the bad kids in the family. Offer to sell your child all the old Halloween or Easter candy for a reduced price by the kilo. Tell them you’ll accept machine guns instead of currency to seal the deal.
10. Use the Sentencing Guidelines for punishments. Bonus 5K if the kids snitch on a sibling!

 
If the above techniques don’t work—or work too well—we will happily represent your loved ones in the potential assault charges against you. 

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. Gore seems 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.’”

by:  GUEST BLOGGER:  KAMAL GHALI,  Bondurant, Mixon, Elmore

One premise of David Markus’s position appears to be that once DOJ decides to initiate a case, it remains DOJ’s case, regardless of the procedural posture of the case (investigation, indictment, conviction, sentencing, appeal, habeas).  And for that reason, a federal judge should have (almost) no authority to deny DOJ’s motion to dismiss an indictment under Federal Rule of Criminal Procedure 48(a) when a defendant consents to that dismissal.  But, to make a point related to Don Samuel’s response, is it really true that it remains “DOJ’s case” after a conviction?  
 
After all, a guilty plea requires the active participation of the judge, including his or her independent fact-findings about whether the guilty plea is knowing, voluntary, and has a sufficient factual basis.  A judge can only make this finding after the defendant swears, under penalty of perjury, to tell the truth.  In other words, a plea hearing isn’t just an adversarial proceeding.  It is designed, in part, to ensure that defendants aren’t being railroaded into admitting that they did something that they didn’t. (Even those who believe that the guilty plea process does a bad job at preventing innocent people from pleading guilty can at least agree that the point of such a hearing is to make sure that doesn’t happen.). Here, the judge found that Flynn, a well-educated, three-star general, and former National Security Advisor, who was represented by Covington & Burling, made a “knowing and voluntary” plea. 
 
Although a judge’s failure to dismiss criminal charges before a conviction might raise a host of serious issues, why should we assume that DOJ retains complete control over the matter after conviction?  Is DOJ’s active participation even required after a guilty plea? Or after a jury finds a defendant guilty beyond a reasonable doubt? Once there’s a conviction, the federal judiciary’s own fact-finding machinery kicks in.  And under the Federal Rules, the U.S. Probation Office, not DOJ, is required to conduct its own sentencing investigation.  See Fed. R. Crim. P. 32(c) (“Required Investigation”).  Although there are a number of statutorily-mandated factors a court must consider before imposing a sentence, DOJ’s opinion on the appropriate sentence is not one of them.  18 U.S.C. 3553(a).  While DOJ still carries obligations and responsibilities after conviction, including its continuing obligation to disclose Brady evidence, the Federal Rules of Criminal Procedure do not appear to mandate its active participation in sentencing.
 
But what does it even mean to dismiss the indictment after conviction?  Does the document initiating charges much matter after a jury verdict or a guilty plea?  To that end, the text of Rule 48(a) itself doesn’t purport to apply after conviction.  Fed. R. Crim. P. 48(a) (“By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent.”). Of course, there are cases applying Rule 48(a) to motions to dismiss after conviction. And there are other cases supporting DOJ’s position as well David Markus’s view that courts have limited authority to deny motions to dismiss.  See, e.g., United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016) (“A court thus reviews the prosecution's motion under Rule 48(a) primarily to guard against the prospect that dismissal is part of a scheme of ‘prosecutorial harassment’ of the defendant through repeated efforts to bring—and then dismiss—charges. So understood, the ‘leave of court’ authority gives no power to a district court to deny a prosecutor's Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution's exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution's desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant's alleged conduct. The authority to make such determinations remains with the Executive.”) (citations omitted).
 
But the only U.S. Supreme Court case to address the scope of Rule 48(a) after conviction acknowledges that a district judge has at least some authority to deny a motion to dismiss in certain circumstances. 
 
 In 1977, the U.S. Supreme Court wrote: 
 
Here, the Government filed a motion under Fed. Rule Crim. Proc. 48(a) seeking “leave of court” to dismiss the federal charges against petitioner. Under the standard applied by the Court of Appeals, the District Court was empowered to withhold leave if the Government's decision to terminate this prosecution clearly disserved the public interest . . . The salient issue, however, is not whether the decision to maintain the federal prosecution was made in bad faith but rather whether the Government's later efforts to terminate the prosecution were similarly tainted with impropriety. Our examination of the record has not disclosed (and we will not presume) bad faith on the part of the Government at the time it sought leave to dismiss the indictment against petitioner. The decision to terminate this prosecution, based as it was on the Petite policy, was motivated by considerations  which cannot fairly be characterized as clearly contrary to manifest public interest.
 
Rinaldi v. United States, 434 U.S. 22, 29–30 (1977) (citations omitted) (emphasis added).  The Supreme Court went on to reverse the district court’s denial of DOJ’s motion to dismiss an indictment (per Rule 48(a)) as an abuse of discretion. In dissent, Justice Rehnquist wrote, “Federal Rule Crim. Proc. 48(a) allows the United States to move to dismiss an indictment only ‘by leave of court.’ This proviso was specifically added as an amendment to the original draft, which had provided for automatic dismissal upon the motion of the United States, and would seem clearly directed toward an independent judicial assessment of the public interest in dismissing the indictment.” Id., at 34 (Rehnquist, J., dissenting) (emphasis added).  Notably, the majority took no issue with Justice Rehnquist’s history of Rule 48(a) as replacing a prior draft that would have required  “automatic dismissal” upon DOJ’s motion.  And the majority took no issue with the notion that a court has discretion to decide whether it is appropriate to dismiss the indictment (ruling only that the district court abused that discretion in the case before it).  But the Court didn’t spell out the scope of a district court’s discretion. 
 
I suppose there could be a rule that requires “automatic dismissal” of an indictment upon DOJ’s request, at any phase of the prosecution including after sentencing, provided that a defendant agrees.  But I don’t think Rule 48(a)’s text gives DOJ an absolute right to an immediate dismissal of criminal charges after conviction solely because a defendant agrees. This is not to say that Judge Sullivan’s decision to appoint Judge Gleeson doesn’t raise a host of other issues.  But it is to say that things change once a defendant is convicted. Of course, the judge could grant a motion to withdraw the guilty plea; he could set aside the conviction on various procedural grounds; and he could take a number of other steps to functionally stop this case. But given that a defendant swore under penalty of perjury that he committed a crime, that DOJ agreed that the defendant committed a crime, and that a federal judge found that the defendant committed a crime, there’s nothing inherently wrong with a judge asking hard questions about why this happened before he dismisses the case altogether.

by:  Don Samuel

In the previous post, I copied David Markus's argument (printed in the Washington Post) in favor of a prompt dismissal of the Flynn indictment.  I disagree.  Here are my reasons:

I have some disagreements with David Markus’s post (or maybe “disagreements” is not the right word; maybe I should say that the relationship between the judiciary and the parties is more complicated than he portrays).   There are various times that a judge rejects an agreement between the parties.  Most notably at sentencing.  If, as David suggests, the judge is only on the bench to adjudicate disputes between the parties, then why do judges routinely reject agreements as to sentences?  Why are “binding pleas” so rare in federal court.  If two lawyers, both of sound mind and discretion have reached an agreement regarding how a dispute should be resolved, then the judge should just say, “thank you” and go back to chambers.  But that is not what happens.  There are other contexts in which the court does more than just resolve disputes between two parties – that is, when judges reject agreements – such as tolling the speedy trial clock for the “ends of justice.”  Why do these things occur?  Because judges have a duty to the public to ensure once the court’s jurisdiction is invoked, the proceedings thereafter meet certain standards that are in the public interest, not just the procedures, but also the outcomes.  The public has a right to know; the public has a right to understand; the public has a right to be protected (from dangerous people and from dangerous prosecutors who need to be exposed). 
 
I don’t know what Judge Sullivan will ultimately decide.  But as a member of the public, I want to know what happened.   I don’t trust the current attorney general to provide an accurate dispassionate explanation; I very much trusted the former Administration’s AG and the prosecutors who initiated this case.  I don’t trust the defense lawyer in this case (the defense lawyer has no duty to me to be honest, of course).  David and I both know that 99% of the time, the court will permit a dismissal pursuant to Rule 48.  And that is because there is a good reason to dismiss the case.  But I don’t know if there is a good reason in this case.  And as a member of the public, I want to know.  I want to know if the prior DOJ is as diabolical as Trump portrays ("ObamaGate" he is screaming), or not.  (I think I know the answer, but I would like there to be a public answer, not AG Barr’s unreliable and dishonest claims).  In the end, perhaps it is right to dismiss the case.  But not because the judge is powerless to ask “why?”  

by:  Don Samuel -- David Markus

There are very few criminal defense lawyers who I admire more than David Markus in Miami.  His blog is inspirational.  So is his intellect and fierce advocacy.  He has written an opinion piece in the Washington Post expressing his view that the judge in DC should promptly permit the dismissal of the Flynn indictment.  I am reprinting David's argument below.  But I disagree with his conclusion. In the next post, I will explain the basis for my disagreement.  Here is David's argument:

​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.
 
In the case under discussion, the dispute was initiated by the federal government against Flynn. The charge was fairly limited as far as federal prosecutions go, a sole count of making a false statement, which carries a maximum five-year sentence (low by federal standards). Flynn had pleaded guilty to this charge and the prosecution had asked for no jail time.
 
But Flynn later filed a motion to vacate that plea agreement based on a number of arguments, including that recently disclosed documents show his innocence. After those documents came to light, the Justice Department filed its motion to dismiss. Because that ends the parties’ dispute and because granting the dismissal does not implicate the defendant’s rights, Sullivan should have simply granted the motion without further action.
 
Instead, now he has appointed a former prosecutor and judge to formally oppose the dismissal and intends to hear from third parties about the government’s decision to dismiss. That sets a dangerous precedent. Do we want judges asking prosecutors about the reasons for dismissal in an ordinary case or going so far as to appoint special prosecutors when a coequal branch has declined a case? There is simply no legal basis to get into the reason why the case is being dropped, even if it appears the reason was political.
 
Those arguing for Sullivan to force prosecutors and Flynn into a sentencing hearing say that because Flynn already had been adjudicated guilty, the judge should not dismiss the case. Like 90 percent of federal defendants, however, Flynn pleaded guilty instead of proceeding to trial. And not only that, but he agreed to waive his right to appeal, to waive any constitutional defects to his conviction and to become a government informant.
 
Defendants give in to those demands in the federal system because of the inordinate power that prosecutors have to influence a defendant’s ultimate sentence. If Flynn, who has no criminal record and the ability to hire good lawyers, would sign a deal such as this, imagine the pressure exerted on less-powerful defendants to give up all their rights. The reality is that deals like this are commonly signed in federal courts by the innocent as well as the guilty.
 
The critical question is not Flynn’s guilt or innocence. The point is that both sides want to vacate his plea deal and dismiss the charges. And no jury ever considered evidence of Flynn’s guilt. The only time that judges should weigh in on prosecutorial decision-making is when the executive branch overreaches in a case. In other words, the judiciary is meant to act as a check on prosecutorial power and to protect defendants, not to act as a check on prosecutors being too lenient.
 
Consider a recent Justice Department attempt in California to force a defendant to waive his right to later ask for compassionate release. In that case, Allan Funez Osorto and the Justice Department executed a plea agreement in which Osorto agreed not to ask Judge Charles Breyer for compassionate release for 180 days, even though the statute only requires waiting for 30 days.
 
Breyer rejected the deal, saying, “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.”
 
The judge added that if a defendant doesn’t take an offered deal, “he does so at his peril,” 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.” Breyer was right to check the government’s immense power, and Sullivan would be wrong to compel them to use it.
 
In the Flynn case, critics of the attorney general’s decision to drop the prosecution say it was likely political. They may be right. But those political issues will play out with the American public. The legal question is pretty straightforward. The Justice Department brought the case. It’s the department’s prerogative to drop the case, especially where Flynn also wants to vacate his guilty plea. That’s how the adversary system works.

by:  Guest Blogger BRUCE HARVEY

The unfortunate reality is that we do, indeed, live in a regulatory society.  There are fifty volumes of the CFR encompassing some 170,000 pages of federal regulations, covering over 90,000 federal regulations just since 1995.[i]  Don’t think they don’t apply to the criminal defense bar, because they do – in every area from environmental regulations to designer drugs.[ii]  Several prominent examples should bring this home to all of us.  First, the Federal Government has been regularly prosecuting licensed medical doctors (and pharmacists) for being “drug dealers in white coats” based primarily on 21 CFR 1306.04 which prohibits doctors from prescribing controlled substances unless it is for a “legitimate medical purpose” that comes within the “usual course” of medical practice.   See, e.g. United States v. Azmat, 805 F.3d 1018 (11th Cir. 2015); United States v. Feldman, 936 F.3d 1288 (11th Cir. 2019).  So, now the DEA and the executive branch get to determine, in the first instance, whether a licensed medical doctor is “legitimate” or not.
            
Likewise, it is the State Board of Pharmacy that is delegated to “add substances to or reschedule all substances” listed in the Georgia Controlled Substances Act. O.C.G.A. §16-13-22(a).  This is done through the Administrative Procedures Act in Chapter 13 of Title 50 of the Georgia Code.  Id.  Examples abound.
            
These regulations have traditionally been viewed as carrying the full force and effect of law.  See Chevron USA, Inc. v. Nat. Res. Def. Council, Inc. 467 U.S. 837, 843-44 (1984) (“Chevron”); Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979).  See also PDK Labs, Inc. v. DEA, 438 F.3d 1184, 1185 (DC Cir. 2006).  This much is granted.  But have recent decisions sounded the death knell for Chevron deference and the revival of the nondelegation doctrine?  Let’s examine.

The Constitution confers the legislative power on Congress.  See, Article I, Sec. I, and Sec. 8.  Thus, according to the Supreme Court, the nondelegation doctrine forbids Congress from delegating its Article I powers to administrative agencies.  See Wayman v. Southard, 23 U.S. 1 (1825).  However, that principle is observed more in the breach than in the observance.  Since 1935, the Court has consistently affirmed the constitutionality of statutes delegating regulatory powers to agencies.[iii]  So, the current reality is that although the Constitution confers the power on Congress, Congress does not make most laws.  Instead Congress delegates the power to make laws to administrative agencies.[iv] There is then, virtually no limits on Congress’s ability to delegate lawmaking power to agencies.[v]  So, why should we raise this now?

Last year the Court revisited the nondelegation principle in a criminal case.  A fractured Court ultimately decided both to uphold the delegation and not to modify the current status of the nondelegation doctrine.  But, the opinions strongly hinted that the Court will revisit the doctrine in the future.  Justice Kagan’s opinion reaffirming the current doctrine garnered only four votes.  Justice Gorsuch’s opinion excoriating the current doctrine as unconstitutional had three votes.[vii]  Justice Alito’s concurring opinion explicitly indicated his willingness to revisit the doctrine in a future case:  “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” Id. at 2131
           
 Justice Kavanaugh did not participate in Gundy.  However, in a later case, Paul v. United States, 140 S. Ct. 342 (2019), he wrote separately in a denial of certiorari with the express purpose of noting that, “Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases.”
            
There it is – the necessary missing vote.  Gundy is a classic example of how the make-up of the Court – and the extensive analysis of the nondelegation doctrine in Gundy – lead to an uncertain result hinging squarely on “further consideration in future cases”.  With all the analysis in Gundy, none of the opinions addressed whether delegation ought to be assessed differently when the scope of the delegation involves the power to determine what is criminal and what is not.[viii]
            
That omission is striking because there are many reasons to think that the power to delegate is – and should be – different when it comes to criminal law.  Indeed, in previous opinions the Court had explicitly acknowledged the possibility that a different test ought to apply to delegation involving criminal laws.  See Touby v. United States, 500 U.S. 160, 165-166 (1991).  See also Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 734 (6th Cir. 2013)(Sutton, J. concurring).

A full discussion of the reasons to treat criminal cases differently is beyond the scope of what we can do in a blog post.  But a number of legal doctrines distinguish criminal laws from other laws.  Examples include:

The vagueness doctrine: See Dimya, 138 S. Ct. 1204 @1212 (stating that the vagueness doctrine is “a corollary of the separation of powers – requiring that Congress rather than the executive branch or judicial branch define what conduct is sanctionable and what is not”);

The rule of lenity: An adjunct to the vagueness doctrine, statutes that delegate criminal rulemaking authority invariably contain ambiguities.  But agencies cannot make policy decisions without discretion.  What happens then, is a delegating statute sets out goals through an ambiguous statute and leaves it to the agency to decide the rules to implement the goals.

My concern is this.  It has always seemed surreal to combine executive and legislative powers.  That is, the same institution both writes and enforces the law.  Criminal laws are the means by which the government deprives its citizens of liberty.  Obviously, the executive branch has the exclusive power to enforce the criminal laws.  Congress can dictate what is illegal through legislation, but it cannot enforce the law.  The toothless nondelegation doctrine collapses that constitutional wall and allows the executive branch to both make and enforce the law.  This is, and has been, a titanic struggle between individual right and liberty and structural protections.  We know what side we are on.

[i] For example, in 2016 Congress passed 214 Public Laws, and agencies implemented 3,853 rules and regulations!

[ii] There are, of course, many lists of bizarre federal crimes, many of which are strict liability offenses.  I recently read that it is a federal crime “to make an unreasonable gesture to a passing horse” in a National Park.  The Author asks, how does the horse determine the reasonableness of the gesture?  See Chase How to Become a Federal Criminal, Atria Books, 2019.

[iii] See Barizai, Delegation and Interpretive Discretion, 133 Harv. L. Rev. 164 (2019).

[iv] Indeed, the delegation may be to a “coordinate Branch[es’]” which, in turn, delegates the Legislative task to an administrative agency.  See Mistretta v. United States, 448 U.S. 361, 372 (1989) (upholding the Sentencing Reform Act, which delegated to the Sentencing Commission the authority to set binding sentencing guidelines).

[v] The Court has upheld the constitutionality of such delegations as long as Congress provides an “intelligible principle” that guides the exercise of delegated authority.  See Whitman v. AM Trucking Ass’n, 531 U.S. at 457, 473.

[vi] Sex Offender Registration and Notification Act.

[vii] Id. at 2131 (Gorsuch, J., dissenting) joined by CJ  Roberts and Justice Thomas.

[viii] See Barkow, Separation of Powers and Criminal Law, 58 Stan L. Rev. 989 (2006) (arguing that other administrative law doctrines should apply differently to criminal laws).

by:  Guest Blogger, Rafe Banks

​       Some quick random thoughts prompted by Lawrence Zimmerman’s blog post.  Lawrence’s use of the term “grinding wheels” really struck home with me. 
            I don’t represent as many minorities as a lot of lawyers but I do see a lot of clients who, through circumstance or frankly their own actions, are being ground down by the wheels of the criminal justice system.
            Although I come from a relatively affluent background in a small southern town and had a stellar education, I feel for these people.  Sometimes you look at a situation and say, “That’s just unfair. I need to help.”   For those individuals I can take on a pro bono (or reduced fee) case to assist.  Fortunately, I have partners in the law firm that willingly allow me this privilege.  But pushing back against the grinding wheels is an uphill battle.  
            On occasion, I will run across a prosecutor who recognizes unfairness or the downward spiral the system itself creates.  Probation. Violation of probation.  Jail.  Violation of probation again.  PDC, etc.   I was a prosecutor many years ago and I hope I was able then to see unfairness and the traps the system sets for people.  Those prosecutors exist and I salute them - but they are the exception rather than the rule.
            Judges.  Just as with prosecutors, on occasion I will come across a judge that clearly recognizes unfairness and attempts to do the right thing.  Where there is the will there is a way.  Unfortunately again, this is the exception rather than the rule.  People get plugged into a pre-existing matrix because we have to move our cases along.
         However, even with all of it faults and inconsistencies, we still have the finest system in the world and I am proud to do my little part each day.
 
Rafe Banks