appeals Court

Appeals Court Weighs Whether to Permit Inquiry Into Flynn Case Dismissal – The New York Times

Politics|Appeals Court Weighs Whether to Permit Inquiry Into Flynn Case Dismissal

A majority of the judges on a federal appeals court signaled that they may allow a court hearing into the Justice Department’s decision to drop the case.

Credit…Brendan Smialowski/Agence France-Presse — Getty Images

Charlie Savage

WASHINGTON — A Justice Department lawyer urged an appeals court on Tuesday to block a judge from scrutinizing its decision to drop the prosecution of President Trump’s former national security adviser Michael T. Flynn, arguing that the “spectacle” of examining its motives in a public hearing would damage the executive branch.

But a lawyer for the judge overseeing the case, Emmet G. Sullivan, appeared to walk back expectations that he would engage in a searching inquiry about what lay behind the decision to drop the charge against Mr. Flynn, suggesting that he did not have a basis to conduct extensive fact-finding and that he might limit a hearing to mainly discussing legal issues.

Those were two takeaways from nearly four hours of oral arguments before the full Court of Appeals for the District of Columbia Circuit. It was the latest chapter in a twisting legal and political saga over the case against Mr. Flynn, who has twice pleaded guilty to lying to the F.B.I. about his conversations with a Russian ambassador in December 2016.

In May, the department moved to drop the case. Its stated rationale has shifted across several filings, but centers on the idea that Mr. Flynn’s lies were not material to any legitimate investigation and that the F.B.I.’s aggression in questioning him might give a jury a reason to acquit him. That stance dovetails with Attorney General William P. Barr’s disdain for the Trump-Russia inquiry.

The case has since been consumed in a legal fight over whether Judge Sullivan had no choice but to dismiss it since the Justice Department no longer wants to pursue it, or whether the federal rules of criminal procedure empower him to scrutinize whether Mr. Barr sought to drop it for illegitimate reasons and — if Judge Sullivan were to decide that was the case — whether he could instead sentence Mr. Flynn anyway.

Judge Sullivan appointed John Gleeson, a retired federal judge who had criticized Mr. Barr’s move in a Washington Post opinion column, to provide arguments critiquing it. Mr. Gleeson filed a scathing brief contending that prosecutors’ stated rationale made no sense and must be cover for a corrupt and politically motivated decision. The department has denied that accusation.

Judge Sullivan had scheduled a hearing to discuss the issue when the process was derailed by a surprise decision by a three-judge panel on the appeals court in June. It voted 2 to 1 to grant a request by Mr. Flynn’s lawyer, Sidney Powell, that the appeals court immediately order Judge Sullivan to dismiss the case without review.

But the two judges in the majority on that panel — Neomi Rao and Karen L. Henderson — have shown more willingness than their colleagues to interpret the law in Mr. Trump’s favor. Last month, the full court voted to erase the panel decision and rehear the issue, an intervention that suggests it is likely to let Judge Sullivan hold the hearing after all.

Questions from the judges on Tuesday further bolstered the impression that a majority of them on the full court appear likely to reject Ms. Powell’s request. But even so, it was less clear that letting the process play out would force the Justice Department to divulge significant new information about what led to Mr. Barr’s decision.

Judge Sullivan’s lawyer, Beth Wilkinson, has argued that he has the authority to explore whether the proposed dismissal served “due and legitimate prosecutorial interests” or was instead contrary to the public interest, suggesting that he needed to examine “the facts and circumstances.” The Trump administration has reacted with alarm to the notion of an intrusive factual inquiry requiring it to show what went into Mr. Barr’s move to dismiss the charge beyond the rationale it has cited in public filings.

On Tuesday, Jeff Wall, the acting solicitor general, urged the court to again order the case dismissed immediately. But even if the court instead lets the judge proceed, Mr. Wall said, it should instruct him not to pry into what was behind the statements the Justice Department made in its court filings because, he argued, the constitutional system of separation of powers is “meant to guard against oversight and scrutiny of this core executive discretion.”

But while also arguing that the Justice Department did not have to explain its thinking, Mr. Wall suggested that Mr. Barr might have had a secret reason for dismissing the case.

“The attorney general, of course, sees this in a context of nonpublic information from other investigations,” he said, adding: “It may be possible that the attorney general had before him information that he was not able to share with the court. And so what we put in front of the court were the reasons we could, but may not be the whole picture available to the executive branch.”

On behalf of Judge Sullivan, Ms. Wilkinson argued against imposing any restrictions or instructions on what kind of questions he could ask at the hearing, assuming he is allowed to hold one. Among other things, she noted that because the written briefs are not complete, it is not clear what all the issues are.

But she also repeatedly emphasized that to date he has not ordered any steps that would require the submission of internal Justice Department documents or sworn declarations. And she noted that if he asked about internal deliberations at the hearing and Justice Department lawyers declined to answer, he might choose not to pursue the matter.

Ms. Wilkinson also argued that orders like the one Ms. Powell has requested — a so-called writ of mandamus — are supposed to be for extraordinary situations in which there is no other remedy. Here, if the normal process plays out, Judge Sullivan might decide to dismiss the case, she noted — or, if he decides not to do so, that ruling could then be appealed.

Ms. Powell argued, as she has before, that Judge Sullivan has no authority to second-guess the Justice Department’s decision to drop the case, and that it was improper for him to appoint Mr. Gleeson and schedule a hearing rather than immediately ending the matter. She also accused him of displaying bias against her client.

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appeals Federal

Federal appeals court tosses Tsarnaev death sentence, orders new penalty-phase trial – The Boston Globe

The court found that at least two of the 12 jurors did not fully disclose what they knew about the high-profile case or discussed it on social media before they were chosen to decide Tsarnaev’s fate. Crucially, O’Toole Jr. erred when he refused to press the jurors on the social media posts, instead relying on their claims that they could serve impartially, the court held.

“A judge cannot delegate to potential jurors the work of judging their own impartiality,” the ruling stated.

The ruling does not impact Tsarnaev’s convictions in the 2013 bombings, which killed three people and wounded more than 260 others.

“Just to be crystal clear … Dzhokhar will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him,” the court wrote.

But relatives of the victims in the attack were enraged by the decision.

“I just don’t understand it,” said Patricia Campbell, whose daughter Krystle was killed in the bombings near the finish line of the Boston Marathon. “It’s just terrible that he’s allowed to live his life. It’s unfair. He didn’t wake up one morning and decide to do what he did. He planned it out. He did a vicious, ugly thing.”

She said she was not sure whether she would return to court to try to persuade another judge to reimpose the death penalty.

“I don’t even know if I’d waste my time going,” Campbell said. “The government’s just wasting money. He should be dead by now for what he did.”

Bill Richard, whose 8-year-old son Martin was killed in the bombings, declined to comment. He referred the Globe to an essay he and his wife, Denise, wrote shortly before Tsarnaev was sentenced to death, in which they called for his life to be spared.

“We are in favor of and would support the Department of Justice in taking the death penalty off the table in exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal,” they wrote at the time.

They added: “We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.”

A spokeswoman for US Attorney Andrew E. Lelling’s office said prosecutors are reviewing the ruling and would have more to say in the coming weeks. Two of Tsarnaev’s appellate lawyers couldn’t immediately be reached for comment.

Tsarnaev, now 27, was sentenced to death in 2015 for his role in the bombings two years earlier that killed three people and wounded hundreds more. He and his older brother, Tamerlan, also killed an MIT police officer while they were on the run.

Tamerlan Tsarnaev died in a confrontation with police in Watertown days after the blasts. Dzhokhar Tsarnaev eluded police initially but was captured later the same day.

In the ruling, the court found that O’Toole Jr. had mishandled the process of voir dire, when jurors are asked questions to determine whether they are suitable, particularly in cases that have received intense media coverage.

“Decisions long on our books say that a judge handling a case involving prejudicial pretrial publicity must elicit ‘the kind and degree’ of each prospective juror’s ‘exposure to the case or the parties,’” the court wrote.

Despite “a diligent effort,” O’Toole Jr. did not meet that standard, the court held.

The defense had argued at trial that Dzhokhar was led in the marathon plot by his domineering, violent older brother; prosecutors contended that Dzhokhar was a willing participant who became radicalized on his own.

The ruling also suggested jurors should have been told about Tamerlan’s alleged involvement in a triple murder in Waltham.

“If the judge had admitted this evidence, the jurors would have learned that Dzhokhar knew by the fall of 2012 that Tamerlan had killed the drug dealers in the name of jihad,” the decision read. “They also would have known that it was only after these killings that Dzhokhar became radicalized as well: Evidence actually admitted showed that Dzhokhar first flashed signs of radicalization — as is obvious from his texts on jihad — after spending a holiday break with Tamerlan several weeks or so after learning about the Waltham murders.”

The omitted evidence “might have tipped at least one juror’s decisional scale away from death,” he added.

Thompson was joined on the three-judge panel by Judges Juan R. Torruella and William J. Kayatta Jr.

Travis Andersen can be reached at Follow him on Twitter @TAGlobe. David Abel can be reached at Follow him on Twitter @davabel. Tonya Alanez can be reached at or 617-929-1579. Follow her on Twitter @talanez. Milton J. Valencia can be reached at Follow him on Twitter @miltonvalencia.

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appeals Court

Full D.C. Appeals Court Agrees To Take Up Michael Flynn Legal Case – NPR

Former national security adviser Michael Flynn’s legal odyssey continues after the full U.S. Court of Appeals for the District of Columbia Circuit agreed to hear oral arguments in the case next month.

Manuel Balce Ceneta/AP

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Manuel Balce Ceneta/AP

Former national security adviser Michael Flynn’s legal odyssey continues after the full U.S. Court of Appeals for the District of Columbia Circuit agreed to hear oral arguments in the case next month.

Manuel Balce Ceneta/AP

The full U.S. Court of Appeals for the District of Columbia Circuit says it has scheduled oral arguments in the case of former national security adviser Michael Flynn on Aug. 11.

A smaller panel of judges within the D.C. Circuit ruled earlier that a lower-court judge must terminate the case against Flynn, as requested both by his attorneys and — in an unusual wrinkle — the Justice Department.

That lower-court judge, U.S. District Judge Emmet Sullivan, said he wanted to probe the reasons for the government’s move, but the smaller appellate panel ordered him to stop that work and simply end the matter.

Sullivan asked for the full appeals court to consider the case, and it agreed on Thursday.

Next installment in long saga

Flynn’s legal odyssey has been churning for years — he pleaded guilty to lying to the FBI about his conversations with Russia’s then-ambassador to the United States in the waning days of President Barack Obama’s administration. Flynn then became what the government called a model cooperator in the Russia investigation.

That relationship soured, however, after Flynn replaced his legal team.

Flynn’s attorneys began to press for the revelation of more material they called pertinent to his case and sought to withdraw his initial guilty plea. In their eyes and those of supporters, the actions of the FBI and Justice Department were improper.

In the meantime, William Barr became attorney general and amid broad Republican political antipathy toward the legacy of the Russia investigation, took a sympathetic view of Flynn’s case.

So Barr and the Justice Department told Sullivan they wanted to abandon the prosecution of Flynn even after his admission of guilt, prompting the judge to initiate an investigatory and advisory process aimed at learning how the government had reached that decision.

A former judge appointed by Sullivan to give him an assessment about the government’s position called it an abuse of power by an attorney general obviously acting favorably toward a friend of the president.

Barr, meanwhile, defended his handling of the Flynn matter then and now, including at a hearing this week before the House Judiciary Committee.

The full D.C. appeals court likely will assess whether Sullivan can go ahead with the consideration and investigation of the government’s change of heart; the smaller panel of judges ruled that he had overstepped himself and violated the privilege of the executive branch to reach decisions about prosecutions confidentially.

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appeals proceed

US appeals to proceed with 1st federal execution in 17 years – Fox News

WASHINGTON (AP) — Determined to proceed with the first federal execution in nearly two decades, the Justice Department plans to appeal a judge’s ruling that would halt authorities from carrying it out on Monday.

The family of the victims in the case had requested that it be called off because their fear of the coronavirus would keep them from attending. Not that they wanted to see the killer die; they have long asked that he be given a life sentence instead, and their pandemic objection could postpone the execution indefinitely.

Daniel Lee, 47, had been scheduled to die by lethal injection on Monday. Lee, of Yukon, Oklahoma, was convicted in Arkansas of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell.


But Chief District Judge Jane Magnus-Stinson ruled Friday that the execution would be put on hold because the family’s concern about the pandemic, which has killed more than 130,000 people and is ravaging prisons nationwide.

About an hour after the judge’s ruling, the Justice Department filed its notice to appeal to the 7th U.S. Circuit Court of Appeals and filed court papers asking the district judge to stay the order pending the appeal. The 7th Circuit, based in Chicago, includes Indiana, which is where the execution was to take place at the federal prison in Terre Haute.

The Justice Department argues that it is likely to win an appeal. It contends that executions require extensive planning and coordination with other law enforcement officials and says dozens of staff members were already being brought in from other facilities ahead of Monday’s planned execution.

“These preparations cannot easily be undone,” the filing says.


Attorney General William Barr has said part of the reason the Trump administration wants to resume executions is to deliver a sense of justice to the victims’ families.

But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf.

“For us it is a matter of being there and saying, `This is not being done in our name; we do not want this,’” said relative Monica Veillette.

The relatives, including Earlene Branch Peterson, who lost her daughter and granddaughter in the killing, have argued that their grief is compounded by the push to execute Lee in the middle of a pandemic.

“The harm to Ms. Peterson, for example, is being forced to choose whether being present for the execution of a man responsible for the death of her daughter and granddaughter is worth defying her doctor’s orders and risking her own life,” the judge wrote.

The injunction delays the execution until there is no longer such an emergency. The court order applies only to Lee’s execution and does not halt two other executions that are scheduled for later next week.

The decision to resume executions has been criticized as a dangerous and political move. Critics argue that the government is creating an unnecessary and manufactured urgency around a topic that isn’t high on the list of American concerns right now.

The family hopes there won’t be an execution, ever.

“The family is hopeful that the federal government will support them by not appealing today’s ruling, a reversal of which would put them back in the untenable position of choosing between attending the execution at great risk to their health and safety, or forgoing this event they have long wanted to be present for,” said Baker Kurrus, an attorney for the victims’ family.

The relatives would be traveling thousands of miles and witnessing the execution in a small room where the social distancing recommended to prevent the virus’ spread is virtually impossible. There are currently four confirmed coronavirus cases among inmates at the Terre Haute prison, according to federal statistics, and one inmate there has died.

“It feels disingenuous to me for someone to say they’re doing this in our family’s name and for us and no one’s taken into account our well-being and health,” Veillette said.


In an interview with The Associated Press earlier this week, Barr said he believed the Bureau of Prisons could “carry out these execution without being at risk.” The agency has put a number of additional measures in place, including temperature checks and requiring witnesses to wear masks.

The federal prisons system has struggled in recent months to stem the exploding coronavirus pandemic behind bars. As of Friday, more than 7,000 federal inmates had tested positive; the Bureau of Prisons said 5,137 of them had recovered. There have also been nearly 100 inmate deaths since late March.

Lee’s attorneys also sought the delay on grounds that they’ve been forced to choose between their own health and adequately defending their client.

Chevie Kehoe, whom prosecutors described as the ringleader of the killers, recruited Lee in 1995 for his white supremacist organization. Two years later, they were arrested for the killings of the Muellers and young Sarah in Tilly, Arkansas, about 75 miles (120 kilometers) northwest of Little Rock. At their 1999 trial, prosecutors said Kehoe, of Colville, Washington, and Lee stole guns and $50,000 in cash from the Muellers as part of their plan to establish a whites-only nation.

Lee’s attorneys also cite evidence from his trial that Kehoe was the man who actually killed Sarah.

The executions appeared set to happen following a Supreme Court decision refusing to block them and a lower court affirming the ruling. It’s not clear what will happen with the other scheduled executions, which are scheduled next week for Wednesday and Friday.

Wesley Ira Purkey, of Kansas, who raped and murdered a 16-year-old girl and killed an 80-year-old woman, is scheduled to die Wednesday. Dustin Lee Honken, who killed five people in Iowa, including two children, is scheduled to be executed Friday.

Keith Dwayne Nelson, scheduled to be executed in August, was convicted of kidnapping a 10-year-old girl while she was rollerblading in front of her Kansas home, raping her in a forest behind a church and then strangling her.

DeMillo reported from Little Rock, Arkansas.

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