February 22, 2018


No, a new court filing doesn't suggest that Michael Flynn is about to be exonerated (Philip Bump February 22, 2018, wASHINGTON pOST)

Evidence that could aid the defense could be impeachment evidence -- evidence undermining the testimony of a witness -- or exculpatory, meaning that it shows that the defendant might be innocent. The question is whether the Brady standard applies only to trials and not plea deals; Justice Clarence Thomas, for one, believes that it does.

"The Supreme Court has found before that for a plea case the government can require the defendant to sign in the plea agreement they're not entitled to impeachment evidence," Simpson said. Sullivan's previous version of his standing Brady order demanded that prosecutors turn over favorable evidence in plea cases and trial cases.

"In November, before Flynn was ever charged, he revised that order to try to reflect this sort of nuance in the Supreme Court holdings," Simpson explained. "He said, okay, in all trial cases, government, you've got to go ahead and hand over any favorable material. In plea cases, you have to hand over anything exculpatory." In other words, instead of requiring that prosecutors hand over both impeachment and exculpatory evidence in plea cases, they needed only to hand over exculpatory evidence.

The problem arose on Dec. 12 of last year, shortly after Sullivan took over Flynn's case. His clerks filed his standing Brady order -- but filed the old version, not the version that was updated in November. That mistake was uncovered and, last week, the new version of the standing Brady order was filed. In making the change, the error was noted:
"After this case was randomly assigned to the Court on December 7, 2017," the docket reads, "such an order was entered on December 12, 2017. Unfortunately, the prior version of the order was inadvertently entered rather than the Court's current version."

The current version actually demands less of federal prosecutors, Simpson notes. Before last week's filings, the government would have had to turn over impeachment evidence to Flynn's team as well as exculpatory evidence; now any impeachment evidence that might exist could be withheld.

Posted by at February 22, 2018 2:01 PM