As I know a legal brief can be hard for folks to get through, even a short one at 23 pages, I thought I put together this thread to explain the central points that we're making in the amicus brief. To file this kind of brief, you ask the judge for leave to do so with a motion./1
Before you get that motion granted, you draft the brief and it's an attachment to the motion. You have to explain in the motion why you want to file the motion and basically what you're bringing to the discussion. Our motion is here: /2
You also have to explain who the amici is. Amici is latin for friend basically. It's an old legal form for people/organizations that aren't parties to a case to help the judge decide a question/bring a perspective from those who might be affected by the case but aren't in it. /3
Amici can be anyone or any group, but the idea is that have to have an "interest" of some kind in the case that makes what they have to say helpful to the court. Our amici list is here: /4
In our case, the amici group is composed of current & former lawyers, clerks & judges who are connected to federal court. In general the interest of the group was to address legal arguments to assist Judge Sullivan in understanding the law as we see it for Flynn's case. /5
Because of our interest in representing clients in federal court, we have a perspective on the roles of the government and the courts in federal cases, whether clients can be held in contempt for alleged perjury, and whether discovery in criminal cases satisfies due process. /6
Broadly, those are the 3 topics in our brief: (1) the separation of powers (the different roles of prosecutors & judges in a case), (2) contempt for perjury, & (3) disclosing exculpatory info to defendants during plea negotiations. Our brief is here:
The first issue (separation of powers) in this case concerns when it stops being proper for a prosecutor to dismiss a case. Everyone agrees that can't be done after appeal (unless the court of appeals sends the base back). So, the basic question is where is the cutoff line. /8
Some of the other amici groups argue that the cut-off line is at the guilty plea and some say after that -when the govt has filed its sentencing memo. They think the case is final "enough" at that point that prosecutors shouldn't be able to dismiss if the judge doesn't agree. /9
Our lawyers think it is clear that the cut-off line is when the judge actually enters the order of conviction. In every case that happens after the person pleads or is found guilty & the judge fixes the sentence, including fines, restitution, etc., when the whole case is done./10
That makes sense because sometimes things change between the guilty plea & the sentencing. Sometimes new evidence comes to light even after a jury trial. Sometimes the judge disagrees with a jury verdict & changes it. You have a right to seek to withdraw a plea. /11
Under the normal law, a case is not a final conviction that you can appeal from or that can be used against you in other cases until the court enters the order into the court record. Also, for example, if a person dies between the plea & sentencing, the case is dismissed. /12
Our lawyers think that until the case is actually final, the prosecutor is the one who gets to say that the case will keep going until the judgment order, or instead can chose to stop prosecuting the case. This isn't just a question of procedure, tho but of constitutional law./13
Our constitution divides the government into 3 branches, which are responsible for 3 different powers of government (hence the name - separation of powers). These are: I. legislative - the Congress; II. executive - the President & subordinates; & III. judicial - the courts. /14
To put it simply, the Framers separated the powers into t3 branches so that no 1 branch would have too much power. They operate as checks & balances against each other. The real intent of this is that it makes it difficult for any 1 branch of the govt to become too powerful. /15
The real point of the separation of powers is that it keeps the citizenry from being overpowered by any one branch of government. In a real sense, the separation of powers is a tool to keep us free. That is why it is important in every case, no matter the context. /16
In criminal cases, the executive - the prosecutor - has the exclusive power to charge crimes. The judiciary has the exclusive power to try crimes in court. Most of the time, these powers don't conflict in criminal cases. However, once in a while they do. This is such a case./17
The power to charge crimes carries w/it the powers to continue or stop the case also. This is especially true because the prosecutor is the 1 who has to put on the evidence to prove the case. The court can end a case, but only for legal reasons, not just because it wants to./18
Prosecutors decide all the time not to bring cases or stop them in mid-case & they do so for many reasons. Sometimes it's for law or evidence reasons, but sometimes it's because something makes it unjust to continue or because resources would be better used elsewhere. /19
The court has no role in that process. It's job is not to decide whether to bring, continue or stop cases. It's job is to use its procedures & law to make decisions in the cases that are brought & decide guilt or innocence as appropriate. It also pronounces sentences./20
In federal court, the two roles of the prosecutor & the judge bump up against 1 another in really only one procedural rule - Rule 48. That Rule says the govt can dismiss a case after it's been brought. It does not say at what point that power stops. /21
Even tho the Rule says it authorizes the prosecutor to dismiss cases, the rule isn't really the thing that gives the prosecutor power to do so. It is the Constitution that gives the prosecutor the power. It would be the same if there was no rule at all. /22
In terms of when the power stops, there is a Supreme Court case, Young, that says the prosecutor cannot use the power to stop a case after the defendant has appealed. At that point the judicial branch is doing its job of reviewing the trial for error. /23
That makes sense because once the person has been tried, gotten sentenced, had the judgment entered against him & has appealed, the case is only being checked by the courts of appeals to see if the lower courts did their job correctly; the prosecutor's job is done. /24
Up to the point the case is brought, the decision whether to prosecute is clearly executive. At the end, once judgment has been entered & the case has been appealed, the appeal is clearly judicial. The question in Flynn's case is who has the power in the time in between? /25
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