Flynn to Withdraw Plea?

Discussion in 'Politics' started by Taco Gratis, Jan 14, 2020.

  1. Taco Gratis

    Taco Gratis Clear eyes. Full hearts.

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    • alcoholica

      alcoholica I'm what Willis was talking about

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    • Swamp Donkey

      Swamp Donkey Bring Back Mohamed, Slev and Assquish
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      This one is straight off A Few Good Men.

      Motion to withdraw plea, Your Honor.
      Overruled.
      Objection.
      Noted.
      Motion of withdrawal the plea your honor.
      THE MOTION IS OVERRULED.
      WE STRENUOUSLY OBJECT.
      Well if you strenuously object perhaps I should reconsider.




      ........


      Right.
       
      • Swamp Donkey

        Swamp Donkey Bring Back Mohamed, Slev and Assquish
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        Maybe they should drink a little.

        [​IMG]
         
        • alcoholica

          alcoholica I'm what Willis was talking about

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          i mentioned you, but i think ADG was in lock step with you too
           
        • Swamp Donkey

          Swamp Donkey Bring Back Mohamed, Slev and Assquish
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          That is just bc we studied law in law school.
           
          • alcoholica

            alcoholica I'm what Willis was talking about

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            This whole time I just thought you were bangin' grannies there.
             
            • DaveFla

              DaveFla Well-Known Member
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              • AlexDaGator

                AlexDaGator The Hammer of Thor
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                It CAN be done, but is really rare. Like recent UGA national championships rare.

                The only one I can recall is when an immigrant pled then later found out the conviction would result in a deportation order so he begged to withdraw his plea on the basis that he thought the punishment was limited to the agreed-upon sentence and he didn't know he would also be kicked out of the country by the Feds.

                IIRC, the Judge felt sorry for him and let him withdraw his plea.

                Usually, when a formal plea is entered, you sign a document that confirms the plea is knowing, voluntary, etc., it lists all the rights you are knowingly waiving, everything. Even with that document, the Judge will ask the defendant a series of questions on the record, did you read and understand the plea form, you understand you're giving up your right to a trial by a jury of your peers, you understand you're giving up the right to testify on your behalf, etc. Then they will ask for a "factual basis" for the plea. That's usually stipulating to the facts proving the elements of the crime being pled to.

                The reason they do this is it would work to every defendants' advantage to enter a plea then later withdraw it after witnesses have moved, memories have gotten hazy, a new, more lenient judge or prosecutor is assigned, etc. It would double the judicial system's workload. They really want to nail down pleas.

                It appears here that Flynn pled and agreed to a factual basis, then, when he showed up at sentencing, he tried to argue against the factual basis. Let me give you an example. Let's say you agree to plea to a DUI. You enter a plea and agree to a factual basis (that you were driving a vehicle while impaired due to the influence of alcohol or drugs). Then, when it is time to sentence you, you ask the Judge for leniency because you weren't really drunk, you were just tired from a long, hard day at work. That pisses the Judge off because you conceded that you were impaired by alcohol when you entered your plea.

                I'm pretty sure in a case this big, they were very careful.

                It's not enough to show that the prosecutors were biased against the defendant. All prosecutors are biased against all defendants. It's not enough to show that the prosecutors may have overstated the quality of their case, or threatened other legal action to get a plea to a different count. That's all part of the horsetrading aspect of negotiating plea deals.

                HOWEVER...if there is evidence of prosecutorial misconduct, I mean REAL misconduct like hiding actual exculpatory evidence, then the Judge would want to punish the prosecution by allowing withdrawal of the plea and might even impose other sanctions. That's almost unheard of though. Is that the case here? I'm not familiar enough with the details to say one way or the other but it is a really high hurdle. Judges don't want to set dangerous precedents that might come back in bite them in the ass over and over and over again in the future. If they let Flynn withdraw his plea because of buyer's remorse, how can they hold the line against the thousands of future defendants who will want to do the same?

                This may also be a case of "be careful what you wish for". Unless there really is misconduct by some of the attorneys, I mean the kind of stuff that results in Bar discipline for them, Flynn could end up worse off than he was originally.

                We'll see.

                EDIT:

                I did a google search for circuit criminal plea form and this one popped up from St. John's County. It's State, not Federal, but you get the picture. This looks pretty similar to what we used to use when I was a prosecutor, but this also includes specific warnings related to Jimmy Ryce, Immigration, and DL suspension.
                http://www.circuit7.org/Circuit Judges/HMM_plea_form.pdf



                Alex.
                 
                #9 AlexDaGator, Jan 15, 2020
                Last edited: Jan 15, 2020
                • alcoholica

                  alcoholica I'm what Willis was talking about

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                  Great explanation, as always, but I wasn’t really arguing against you and Law. I was sincere when i mentioned Law said he couldn’t. I actually appreciate having two lawyers on here provide the legal perspective. Your mention of misconduct does make you wonder as Flynn was the first head to roll out of all of this. It would be understandable if they played loose and fast and got sloppy on the first one. After all, they probably all got wood thinking they were going to remove Trump from office.
                   
                  • wrpgator

                    wrpgator Well-Known Member
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                    Sidney Powell sent me the following in an email this morning *(well her website did, I signed up for email updates after reading her excellent book 'Licensed to Lie' ;-)

                    "Today, General Michael T. Flynn has exercised his right to move to withdraw his plea of guilty because the government has engaged in bad faith and vindictive conduct, and it has breached the plea agreement pursuant to which he has cooperated for two years. The government only recently learned of this motion, and it has not replied on the withdrawal. It agreed yesterday to a continuance of 30 days because of the many developments, including the prosecutors recent filing and its production in December of 637 pages of 302s and handwritten notes that we have long been promised. Gen. Flynn is innocent of all charges, the government’s allegations are false, and evidence the government released only recently needs to be reviewed and addressed. Mr. Flynn was always truthful, and future filings will make that clear. Gen. Flynn has been targeted by vindictive and unprincipled prosecutors.

                    The November 2017 plea agreement contracted between Gen. Flynn and the government that, so long as Gen. Flynn met the terms of cooperation set forth in the plea—which required TRUTHFUL testimony—the government would file a departure motion with the court. In good faith, Gen. Flynn performed his side of the bargain. The government acknowledged this substantial cooperation both in its original sentencing memo and in its statements to the court at the December 2018 hearing.

                    In the summer of 2019, Gen. Flynn refused to perjure himself for the prosecutors in a case against a former partner in his private business. This refusal to be coerced into a lie led the government to file a new Sentencing Memorandum in which it reversed course and withdrew both its representation that Gen. Flynn provided substantial assistance and its recommendation for a departure, as contractually mandated by the plea agreement.

                    The government’s attempt to withdraw its prior motion and change its position is a breach of the plea agreement—a contract. Pursuant to Puckett v. United States, 556 U.S. 129 (2009), Mr. Flynn’s counsel must move to withdraw the plea to protect his constitutional rights. When the government breaches its agreement with a defendant, counsel is obligated to seek the appropriate remedy—here, withdrawal of his plea.

                    For these reasons, and for further substantive and serious reasons that will be filed at a later date, Gen. Flynn has instructed his counsel to withdraw his guilty plea. Gen. Flynn is innocent of the charges against him. He has fulfilled his commitments to cooperate with the investigation in good faith. The same cannot be said for the prosecution. We will work now to reclaim his good name for his sake and that of his family, and to help restore trust in our justice system by standing up against the scandal and abuses of his unjust prosecution."
                     
                  • AlexDaGator

                    AlexDaGator The Hammer of Thor
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                    Interesting.

                    You don’t just agree to testify truthfully in exchange for a break in your sentencing. There is usually a “proffer” of exactly what that truthful testimony will be.

                    It seems the key to her motion is Flynn’s testimony.

                    I’d be looking for two things; was there a proffer and did his testimony match the proffer.


                    Alex.
                     
                    • wrpgator

                      wrpgator Well-Known Member
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                      Alex, have you read Sidney Powell's book 'Licensed To Lie'? The playbook for prosecutorial coercion are essentially the same for Flynn.
                      They made Flynn's life a living hell, ruined him financially and leveraged him by making his son a subject of the investigation. He may have simply pleaded guilty (and accept culpability and the consequences therof) to avoid a protracted and costly legal battle, and to avoid having his son go through the same process. When gov't prosecutors come after you, there's very little hope for a private citizen.
                      Will Michael Flynn Plead Guilty And Cooperate To Protect His Son?
                      "Federal prosecutors leveraging one family member against another is a page directly out of a four-decade old prosecutorial playbook used successfully in Wall Street prosecutions. One need not look beyond the Enron prosecutions and guilty pleas of Andrew and Lea Fastow, husband and wife, and the Drexel-related guilty plea of Michael Milken, with Lowell Milken (his brother) averting prosecution, to find the use of this tactic in high profile white-collar prosecutions, that is outside of organized crime and gang prosecutions.
                       
                      • Taco Gratis

                        Taco Gratis Clear eyes. Full hearts.

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                        To my non-legally trained eyes, all the verbiage about "bad faith and vindictive behavior" means nothing. If there's a substantive argument that the government breached the plea agreement, that's reason to withdraw the plea.
                         
                        • AlexDaGator

                          AlexDaGator The Hammer of Thor
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                          I only have a little Federal court experience, and none of that is Federal criminal.

                          With George Zimmerman and Casey Anthony, we basically got to watch the trial, see all the evidence, some of us were personal friends or acquaintances of the attorneys and judges. With Flynn, I'm just not that familiar with all the evidence against him. That's why I'm writing in generalities rather than specifics. I don't know if there was a proffer, I don't know if his testimony matched his proffer. I can tell you that Federal criminal cases are almost never lost at trial. Defense attorneys call them "long pleas" or "slow pleas" because the cases are pretty airtight. The defense attorneys go through the motions, taking depositions, reviewing evidence, hiring experts, etc., then they try to negotiate the best plea deal they can.

                          I completely understand the power of the State to grind a defendant to dust financially, especially in a case like this.

                          I'm also familiar with horse trading in negotiating pleas.

                          Clearly, the Flynn case isn't your run-of-the-mill narco trafficker or tax cheat.

                          I feel bad for the guy. I do believe he got caught up in a politically-motivated prosecution with the ulterior motive of trying to get him to pin something (anything) on Trump. The fact is, if the Government went through any political figure's life with a fine toothed comb, they would find multiple crimes. If they did find a real crime supported by real evidence, that other stuff doesn't really matter.

                          The best solution here might be a Trump pardon.

                          Alex.
                           
                          • Gator By Marriage

                            Gator By Marriage A convert to Gatorism
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                            Interesting is what I thought as well. I'd be willing to bet the testimony in question was not part of the original proffer. I.E., the government came up with something new in their investigation after Gen. Flynn gave the government his proffer (and probably signed his plea agreement) and the prosecutors/investigators had reason to believe it was something Gen. Flynn would be able to testify to a certain way and his version of events was different.
                            Judge Sullivan, BTW, is not a man to be trifled with and if thinks there is any validity to this, I suspect he'll give Gen. Flynn a hearing. Judge Sullivan is very familiar with misconduct by government lawyers; he presided over the Ted Stevens case and later held four govt. attorneys in contempt (civil) and ultimately set aside Stevens' guilty verdict (at DOJ's request). Having said all that, getting him to agree to allow the plea to be withdrawn will still be a heavy lift.
                             
                          • Taco Gratis

                            Taco Gratis Clear eyes. Full hearts.

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                            Sullivan grants delay, schedules sentencing hearing for guilty plea.

                            EOawnxRX4AEUh0m.jpg
                             
                          • Gator By Marriage

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                            And that is the start. A continuance on the sentencing..
                             
                          • Taco Gratis

                            Taco Gratis Clear eyes. Full hearts.

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                            Or is it the judge saying, "I'll play your game, but let's not kid ourselves about where this ends up"?
                             
                          • Detroitgator

                            Detroitgator Well-Known Member
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                            Until you've been through it, yes, you may understand the power to do it, but you won't understand the being ground. And it's not "into dust," it's into a deep, deep, hole with the dust at the bottom.
                             

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