Lawless Judge

Back in 2018 I was involved in a minor criminal case where the State kept having a problem getting their chief witness to court.  On their third attempt I asked the Court to dismiss with prejudice.  Before the Judge ruled on my motion the State announced that it was moving to dismiss.  Since the State has an absolute right to dismiss in Illinois, the Judge noted, “I’m sorry Mr. McClarey but I don’t think I have any choice but to grant the State’s motion.”  I agreed with the Judge and the motion was granted.  I was in some hopes that the State would not file a new information against my client, but it did.  They finally got their witness to court, I took her and her daughter’s testimony apart on cross examination, and the same Judge who had granted the motion, found for the Defendant at trial.  (I had mentored the Judge when he was  a young attorney and I rejoice that he has risen to the Bench, where he is one of the better judges I have appeared in front of over the past thirty-eight years.)  I told my son after the trial, he had recently passed the bar and assisted me in the trial, that even though I was not going to charge our client for all our time on the case since I thought it unfair to have her bear the burden of the State’s inability to get their witness to court on several prior occasions, the case still had served a useful function for us:  it is never a bad thing for a Defense attorney to remind the prosecution, every now and then, why it is a good idea, from their perspective, to offer fair deals in attempting to resolve a case with a particular law firm.

This trip down memory role is courtesy of Federal District Judge Emmet Gael Sullivan in the General Flynn case.  Throughout the case Judge Emmet has manifested an extreme dislike for Flynn.  When his first defense team had convinced Flynn, God only knows why, to plead guilty, and a sentencing hearing was being held, Judge Sullivan demonstrated appalling prejudice when he made the following remarks:

“All along, you were an unregistered agent of a foreign country while serving as the national security advisor to the president of the United States,” Sullivan told Flynn, referring to the other case, for which Flynn was not charged.

“That undermines everything this flag over here stands for,” the judge said. “Arguably you sold your country out.”

Sullivan told Flynn that if he did not accept an offer to postpone his ongoing sentencing hearing, “I cannot assure you that if you proceed today, you will not receive a sentence of incarceration.”

“This is a very serious offense,” said Sullivan.

“A high ranking senior official of the government making false statements to the Federal Bureau of Investigation while in the White House,” Sullivan said.

“Very serious crime,” Sullivan told the 60-year-old retired Army lieutenant general. “Can’t minimize that.”

“I’m not hiding my disgust, my disdain,” the judge said.

“Hypothetically could he have been charged with treason?” Sullivan asked prosecutor Brandon Van Grack.

Go here to read the rest.  For suggesting that a man who had spent his life defending the country should be charged with treason, in a more morally sane time Flynn would have been able to challenge the Judge to a duel.  More to the point, the Court’s remarks were beyond belief in a hearing where he was accepting an agreed resolution to a criminal case, and, doubtless, constituted reversible error.  Some judges, sadly, mistake their office for a bully pulpit with themselves free to give vent to every passing thought that enters their fool skull.

In addition to being a bully and a blow hard, judging from his actions in this case, the Judge simply isn’t very competent at his job.  The Judge fouled up beyond recognition his simple task of accepting a guilty plea and stomped all over Federal Rule 11 of the Federal Rules of Criminal Procedure.  Go here to take a gander at it.  Now doing a proper job of accepting a guilty plea is a Judge 101 level task of being a Judge, but Judge Emmet botched that relatively simple job.  Go here to read an article by an experienced Federal prosecutor on some of the mistakes the Judge made.

Thus it is of absolutely no surprise that the Judge has gone completely Looney Toons in regard to the Government’s motion to dismiss the Flynn case with prejudice.  Instead of doing what he is required to do, sign the Order dismissing the case and bring this bad farce to an end, the Judge is soliciting amicus curiae (“friend of the court”) briefs from left wing groups:

Previously the Judge had denied attempts by groups in support of Flynn to file amicus curiae briefs.

Additionally, the Judge has done the following, which I believe is unprecedented in any criminal case I am aware of:

According to The Washington Post, Sullivan has asked retired New York federal Judge John Gleeson to determine if Flynn “should face a contempt hearing for perjury after he pleaded guilty to a crime for which he now claims to be innocent.”

Additionally, Gleeson has been asked to make a non-binding recommendation whether to order Flynn, who pleaded guilty to a crime and now claims innocence, to explain why he should not be found in criminal contempt for lying under oath in his guilty plea.

Sullivan wrote in his order:

The Court exercises its inherent authority to appoint The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the government’s Motion to Dismiss.

It is further ORDERED that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.

The Honorable John Gleeson and two others wrote an op-ed which appeared on Monday in The Washington Post entitled, “The Flynn case isn’t over until the judge says it’s over.”

The Justice Department’s move to dismiss the prosecution of former national security adviser Michael Flynn does not need to be the end of the case — and it shouldn’t be. The Justice Department has made conflicting statements to the federal judge overseeing the case, Emmet G. Sullivan. He has the authority, the tools and the obligation to assess the credibility of the department’s stated reasons for abruptly reversing course.

The department’s motion to dismiss the Flynn case is actually just a request — one that requires “leave of the court” before it is effective. The executive branch has unreviewable authority to decide whether to prosecute a case. But once it secures an indictment, the proceedings necessarily involve the judicial branch. And the law provides that the court — not the executive branch — decides whether an indictment may be dismissed. The responsible exercise of that authority is particularly important here, where a defendant’s plea of guilty has already been accepted. Government motions to dismiss at this stage are virtually unheard of.

Sounds impartial, doesn’t he?

Go here to read the rest.  Judge Sullivan is a disgrace to the black robe he wears.  I am sure General Flynn’s attorney will be filing the necessary motions to seek the removal of the Judge from the case.  We keep hearing that Trump is the problem for his behavior, his violation of norms of conduct which we should expect from a President, and then his adversaries, and Judge Sullivan is clearly in that category, keep demonstrating that they are not bound by any rules in their crusade against Orange Man Bad.