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Politics : Politics for Pros- moderated -- Ignore unavailable to you. Want to Upgrade?

To: Alan Smithee who wrote (715509)	5/21/2020 6:00:46 PM
From: carranza2	Read Replies (1) \| Respond to of 794193

There is a lonely 1977 Supreme Court case (US v. Rinaldi) interpreting Rule 48 (a), requiring leave of court for the DOJ to dismiss a criminal case. It involved a bank robber who was prosecuted and convicted in State Court, then prosecuted again in Federal Court contrary to a DOJ policy not to prosecute defendants who had been convicted of the same offense in State court, the so-called Petite doctrine. While there are exceptions to the Petite doctrine, the prosecutor seems to have lied to the Court, by telling it that the federal case was authorized as an exception by the DOJ. When the lie came to light, the DOJ moved to dismiss the case, relying on Rule 48(a). Amazingly, the Judge refused, the Court of Appeals agreed with the trial court, and the case ended up at the Supreme Court. The Court held that it was not the lie concerning the Petite doctrine on the part that the prosecutor that mattered, but whether the decision to end the prosecution was motivated by considerations which cannot fairly be characterized as "clearly contrary to manifest public interest." It held that it did not, because the decision to terminate was based on Petite. So, what exactly does the phrase considerations which cannot fairly be characterized as "clearly contrary to manifest public interest" mean? Damned if I know, but it certainly seems to give the trial judge the kind of discretion that the DC Circuit in the Fokkers case said doesn't exist. The very practical issue of what to do if the trial court denies the DOJ leave to dismiss the case has not been to my knowledge ever decided. How can it be forced to prosecute? However, this is not yet relevant in Flynn's case because Sullivan has not yet decided whether to grant the leave to dismiss the case or the motion Flynn filed to withdraw the guilty plea. This means that if the DC Circuit - populated primarily by Democratic Judges and three Trump appointees (two of which have recused themselves in similar cases) - decides not to hear the case because there is no decision denying leave that Sullivan has issued, Flynn may well still have to go through a hearing on whether he can withdraw his guilty plea. And you and I and every jackleg DC lawyer know that Sullivan will not allow Flynn to do so - even if the DOJ wants leniency. I'm beginning to think that Powell might have made a mistake when she moved to get the Court of Appeals involved in the motion for leave to dismiss. If she sought appellate relief after Sullivan had actually denied leave, her case would be a whole lot stronger. And I'm now also beginning to think that the motion to recuse Sullivan was ill-advised because it is not a slam-dunk winner. If you take that kind of a shot at a federal judge, you'd best be 100% sure that you'll win because the consequences of losing are dire. I hope I'm not overthinking this situation, but it seems to me that Flynn is definitely not out of the woods. If a couple of things don't go his way, he's in very big trouble. Powell's strategy is risky, risky, risky. I of course hope she wins, but it isn't all clear sailing by any means.