Dear KMAG: 20190831 Open Topic

I respect and understand the high opinion people have of Powell and this motion. I am NOT attacking any person for having those opinions. I also understand the justified high level of respect and support people have for General Flynn, a true hero who was coerced (IMO) into pleading guilty.
I hesitated about posting my personal opinion, wondering if it did more harm than good (as if my opinion amounts to a hill of beans anyway). But here are my opinions:
1) The motion is mostly a political document, not an actual legal argument. A lot of it is boilerplate. The references to Ted Stevens are dubious and in a sense highlight the lack of legal analysis. Stevens was convicted after trial. Flynn pleaded guilty. Yet there is no analysis beyond the boilerplate about the meaning of Brady in those two very different legal contexts. (Irrelevant but related note: Powell wrote a book about Stevens. Her relentless salesmanship of her book OT turned me off. How much of this motion was her book?)
2) With total respect for Ristvan, the footnotes and the other citations do not distinguish this motion as something special. They are, in effect, assertions of legal truisms or facts well known to the judge, and in a sense are rhetorical grandstanding. What the motion lacks is a compelling legal argument which distinguishes Flynn’s case from all others.
3) When Powell asserts that only a defense attorney can truly appreciate the exculpatory nature of evidence, she is implicitly admitting that she has no specific or particular argument with respect to Brady as applied to THIS case. And more generally, it is simply not the law it seems that there is some absolute right to have a defense attorney make the determination. For instance, I believe judges can make the decision without consulting attorneys.
4) It would seem that reality has to play a part. General Flynn pleaded guilty. He swore under oath to the truth of a fact. And he subsequently reiterated his sworn statement. If Flynn was coerced (as I believe he was) that fact was known to him and his lawyers when he pleaded guilty. That is reality. To the extent coercion is available to the government, it is a reality all across America and in many cases big and small. But that is a political question, one which is made very difficult to address because Americans love to cheer for their own destruction by routinely cheering the government getting bad guys by whatever means, with whatever laws available whether they make sense. IOW, getting the media approved “bad guy” is paramount.
5) Powell fails entirely to address what possible effect Brady material could have in the context of a guilty plea. And significantly, she said on TV she has no intention of seeking to withdraw the plea, which at least is a recognition of reality. She said she hopes the judge finds the entire prosecution was so corrupt that he dismisses the indictment without addressing the sworn plea. Things like selective prosecution sound great, and maybe that is a winner, but it seems an attorney has to weigh the possibilities of success, and it would be interesting to find out how often selective prosecution is a winner. Also, the subjective belief of FBI agents is legally irrelevant in any context (other than selective prosecution, maybe) and certainly irrelevant in the context of a sworn statement of guilt by the accused.
6) But here is my basic concern with Powell: whether she has the best interests of Flynn in mind. I do not know Sullivan well enough to say, but he would be one almost unique judge if his eventual sentence is NOT affected by all the extra work he needs to do, especially if he sees it as grandstanding and a waste of time.
7) And getting back to the coercive aspect of the plea: if the indictment IS dismissed, what sort of nasty things can and will happen which did not happen BECAUSE of the plea? You know, the nasty things which evaporated with the plea? That is an issue which every defense attorney must consider even in a case swimming with injustice, unfairness, political motivation and corruption.