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Prof Triggernometry
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Has Judge Emmet G. Sullivan just turned the Flynn case into a Brady case?
UNITED STATES OF AMERICA, )
)
)
v. ) Criminal No. 17-232-01 (EGS)
)
MICHAEL T. FLYNN, )
)
Defendant. )
)
ORDER
Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and its
progeny, the government has a continuing obligation to produce
all evidence required by the law and the Federal Rules of
Criminal Procedure. See id., 373 U.S. at 87 (holding that due
process requires disclosure of “evidence [that] is material
either to guilt or to punishment” upon request); Kyles v.
Whitley, 514 U.S. 419, 437-38 (1995) (holding that the
obligation to disclose includes producing evidence “known only
to police investigators and not to the prosecutor” and that “the
individual prosecutor has a duty to learn of any favorable
evidence known to others acting on the government’s behalf . . .
, including the police”); United States v. Agurs, 427 U.S. 97,
107 (1976) (holding that the duty to disclose exculpatory
evidence applies even when there has been no request by the
accused); Giglio v. United States, 405 U.S. 150, 153-55 (1972)
1
See United States v. Ruiz, 536 U.S. 622, 633 (2002)(government not required “to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant”); United States v. Moussaoui, 591 F.3d 263, 286 (4th Cir. 2010)(noting that the “Supreme Court has not addressed the question of whether the Brady right to exculpatory information, in contrast to impeachment information, might be extended to the guilty plea
context”)(emphases in the original); United States v. Ohiri, 133 F. App’x 555, 562 (10th Cir. 2005) (“By holding in Ruiz that the government committed no due process violation by requiring a defendant to waive her right to impeachment evidence before indictment in order to accept a fast-track plea, the Supreme Court did not imply that the government may avoid the consequence of a Brady violation if the defendant accepts an eleventh-hour plea agreement while ignorant of withheld exculpatory evidence in the government's possession.”); McCann v. Mangialardi, 337 F.3d 782, 788 (7th Cir. 2003)(noting that “given th[e significant distinction between impeachment information and exculpatory evidence of actual innocence], it is highly likely that the Supreme Court would find a violation of the Due Process Clause if prosecutors or other relevant government actors have knowledge of a criminal defendant’s factual innocence but fail to disclose such information to a defendant before he enters into a guilty plea”); United States v. Nelson, 979 F. Supp. 2d 123, 135-36 (D.D.C. 2013)(“Because the prosecution suppressed exculpatory evidence before Nelson pled guilty, Nelson’s due process rights were violated to his prejudice and his guilty plea was not voluntary and knowing.”); Buffey v. Ballard, 782 S.E.2d 204, 221 (W. Va. 2015)(finding “that the DNA results were favorable, suppressed, and material to the defense," and therefore "the Petitioner’s due process rights, as enunciated in Brady, were violated by the State’s suppression of that exculpatory evidence”). But see United States v. Conroy, 567 F.3d 174, 179 (5th Cir. 2009)(disagreeing with the proposition that, based on Ruiz, “exculpatory evidence is different [from impeachment information] and must be turned over before entry of a plea”).
https://www.courtlistener.com/docket/6234142/20/united-states-v-flynn/
My opinion, Judge Sullivan could very well rule that prosecutorial misconduct has occurred in the Flynn case.
UNITED STATES OF AMERICA, )
)
)
v. ) Criminal No. 17-232-01 (EGS)
)
MICHAEL T. FLYNN, )
)
Defendant. )
)
ORDER
Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and its
progeny, the government has a continuing obligation to produce
all evidence required by the law and the Federal Rules of
Criminal Procedure. See id., 373 U.S. at 87 (holding that due
process requires disclosure of “evidence [that] is material
either to guilt or to punishment” upon request); Kyles v.
Whitley, 514 U.S. 419, 437-38 (1995) (holding that the
obligation to disclose includes producing evidence “known only
to police investigators and not to the prosecutor” and that “the
individual prosecutor has a duty to learn of any favorable
evidence known to others acting on the government’s behalf . . .
, including the police”); United States v. Agurs, 427 U.S. 97,
107 (1976) (holding that the duty to disclose exculpatory
evidence applies even when there has been no request by the
accused); Giglio v. United States, 405 U.S. 150, 153-55 (1972)
1
See United States v. Ruiz, 536 U.S. 622, 633 (2002)(government not required “to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant”); United States v. Moussaoui, 591 F.3d 263, 286 (4th Cir. 2010)(noting that the “Supreme Court has not addressed the question of whether the Brady right to exculpatory information, in contrast to impeachment information, might be extended to the guilty plea
context”)(emphases in the original); United States v. Ohiri, 133 F. App’x 555, 562 (10th Cir. 2005) (“By holding in Ruiz that the government committed no due process violation by requiring a defendant to waive her right to impeachment evidence before indictment in order to accept a fast-track plea, the Supreme Court did not imply that the government may avoid the consequence of a Brady violation if the defendant accepts an eleventh-hour plea agreement while ignorant of withheld exculpatory evidence in the government's possession.”); McCann v. Mangialardi, 337 F.3d 782, 788 (7th Cir. 2003)(noting that “given th[e significant distinction between impeachment information and exculpatory evidence of actual innocence], it is highly likely that the Supreme Court would find a violation of the Due Process Clause if prosecutors or other relevant government actors have knowledge of a criminal defendant’s factual innocence but fail to disclose such information to a defendant before he enters into a guilty plea”); United States v. Nelson, 979 F. Supp. 2d 123, 135-36 (D.D.C. 2013)(“Because the prosecution suppressed exculpatory evidence before Nelson pled guilty, Nelson’s due process rights were violated to his prejudice and his guilty plea was not voluntary and knowing.”); Buffey v. Ballard, 782 S.E.2d 204, 221 (W. Va. 2015)(finding “that the DNA results were favorable, suppressed, and material to the defense," and therefore "the Petitioner’s due process rights, as enunciated in Brady, were violated by the State’s suppression of that exculpatory evidence”). But see United States v. Conroy, 567 F.3d 174, 179 (5th Cir. 2009)(disagreeing with the proposition that, based on Ruiz, “exculpatory evidence is different [from impeachment information] and must be turned over before entry of a plea”).
https://www.courtlistener.com/docket/6234142/20/united-states-v-flynn/
My opinion, Judge Sullivan could very well rule that prosecutorial misconduct has occurred in the Flynn case.