Vanity question about DOJ authority and the Brady rule

FR ^ | conservatism_IS_compassion

[conservatism_IS_compassion]

Judge Sullivan is enforcing the Brady rule against the Mueller prosecution of Flynn. But in general only a judge can give a Brady warning which puts teeth in the Brady rule. IANAL but I wonder:

1. Can AG Sessions order the Muller Special Persecutor team to submit to Brady rule sanctions even if the judge in a particular case does not impose it?

2. If the Brady rule is SCOTUS precedent, what prevents any criminal defense - in a Mueller case or any other - from asking the judge to issue a Brady warning to the prosecution? And if the judge declines, why would a defense not take exception on grounds that Brady is a constitutional right?

[pgkdan]

Aren’t prosecutors required to follow Brady without a specific ruling? Not that they do...but aren’t they supposed to share all evidence with the defense?

[Robert DeLong]

Won’t swear to it because I am not a lawyer, but reading it leads me to believe that the defendant himself can demand evidence favorable to a defendant as part of due process. Thus I would think the AG could demand it as well. Refusal is not an option. Purposely omitting information is prosecutorial misconduct. Judge Sullivan went a step further and demanded Mueller turn over even evidence which is favorable to the defendant but which the government believes not to be material.

[Robert DeLong]

I think only if the defendant or his lawyers request it. You would think that would be the first hing a lawyer for someone charged would request as SOP.

Brady disclosure consists of exculpatory or impeaching information and evidence that is material to the guilt or innocence or to the punishment of a defendant. The term comes from the U.S. Supreme Court case Brady v. Maryland, in which the Supreme Court ruled that suppression by the prosecution of evidence favorable to a defendant who has requested it violates due process.

[moehoward]

Not sure what you’re asking.

Discovery is SOP. What’s unusual here is Judge Sullivan ordering ALL evidence for in camera review whether Mueller thinks it’s material or not.

[organicchemist]

While I am not a lawyer, I have carefully watched My Cousin Vinnie several times and I believe you are correct.

[NutsOnYew]

Aren’t prosecutors required to follow Brady without a specific ruling?

Yes, it is required. I believe this is what happened and why Sullivan leaves no doubt. When Sullivan assigned a special prosecutor after the Ted Stevens debacle, He wanted to prosecute the DOJ attorneys that withheld exculpatory evidence. But, the SP said Sullivan should not prosecute because he had not put in writing that he expected the Brady rule must be followed (even though it's the law). So, Sullivan did not prosecute the two DOJ scumbags, but he has issued the Brady statement in every one of his cases since then.

[conservatism_IS_compassion]

Discovery is SOP.

That is my understanding. But Judge Sullivan has been prostelising for all judges to give a Brady warning ever since 2008, when he presided in a trial in which the defendant actually was not given all exculpatory evidence, and the judge found he was unable to adequately sanction the prosecutors for their abuse of the defendant’s rights.

Judge Sullivan even put a special prosecutor on the case to try to punish the prosecutors - and was told that without having been given a Brady warning, the prosecutors could skate with, basically, a slap on the wrist.

[BipolarBob]

I agree and I slept at a Holiday Inn Express recently.

[moehoward]

“...he was unable to adequately sanction the prosecutors....”

I suppose “adequately” may have been subjective. The rules for failure to comply include “..any other order that is just under the circumstances.”

[conservatism_IS_compassion]

I suppose “adequately” may have been subjective. The rules for failure to comply include “..any other order that is just under the circumstances.”

. . . which sounds good - until you understand that what would be "just under the circumstances” of having given the Democrats a filibuster-proof majority in the Senate by wrongly convicting the 40th Republican senator would be pretty harsh. And that is what happened in Judge Sullivan’s courtroom.

And Sullivan wasn’t even able to disbar the miscreant, or even to get him removed from being a prosecutor.

[moehoward]

“And Sullivan wasn’t even able to disbar..”

Of course not. That’s a Bar Association matter.

Perhaps you could add a link to the case you are talking about.

[conservatism_IS_compassion]

“Perhaps you could add a link to the case you are talking about.”

I tried unsuccessfully to make this link work yesterday, in HTML - but it seems to work if I just avoid HTML altogether and allow FR to create the link:

http://www.cardozolawreview.com/content/denovo/Sullivan.37.symposium.pdf

[moehoward]

“Noting that, “[i]t should go without saying that neither Judge Sullivan, nor any District Judge, should have to order the Government to comply with its constitutional obligations, let alone that he should feel compelled to craft such an order with a view toward a criminal contempt prosecution, anticipating its willful violation,” Mr. Schuelke nevertheless recommended that, without disobedience of a “clear and unequivocal” order, the prosecutors not be charged with criminal contempt.”

Nonsense. Was this investigator named Comey ? This mealymouthed rationale sounds eerily similar to his excuse for not charging Clinton.

[conservatism_IS_compassion]

Nonsense.

Now you know what put the bee in Judge Sullivan’s bonnet about issuing the prosecutor an explicit Brady warning from the bench at the first opportunity.

Again, why doesn’t Jeff Sessions institute a Brady warning requirement for any Special Persecutor? And why does any criminal defense attorney anywhere pass up the opportunity to pressure the judge to issue one at the start of every trial?