If an appeals court orders a lower court to throw out a case, can this be appealed by the lower court? Background On June 24th, 2020 in a 2 - 1 vote, a Washington appeals court ordered Judge Emmet Sullivan to throw out the case against Michael Flynn because both the prosecution and the defense wanted the case dismissed: By a vote of 2-1, the three-judge panel on the appeals court ruled Wednesday that the lower-court judge, Sullivan, had intruded on the Justice Department's &quot;charging authority&quot; by seeking further investigation after the department moved to dismiss Flynn's case. An attorney appointed by Sullivan to counsel him about the government's decision in the case called the move to dismiss an abuse of power by the Justice Department because it was interceding in the case of a friend of President Trump. Question Since the Judge now has an attorney, can this Judge appeal to the Supreme Court (or appeal again starting from a different court jurisdiction) to potentially allow him to continue his decision to review if the Michael Flynn case should be dismissed?
The Main Answer: The Judge Can't Appeal; But Other People Can Since the Judge now has an attorney, can this Judge appeal to the Supreme Court (or appeal again starting from a different court jurisdiction) to potentially allow him to continue his decision to review if the Michael Flynn case should be dismissed? Not exactly. It is potentially subject to appeal, but not by the judge. But the question contains an understandable and natural false premise that confuses the issue. The attorney appointed by the Court to present the position abandoned by the Justice Department is not a lawyer for the judge (who has absolute immunity from liability). Instead, the attorney is someone appointed to provide additional representation to &quot;the People&quot; on the theory that the Justice Department in unable to fully represent the interests of &quot;the People&quot; due to an alleged conflict of interest. The attorney appointed by the judge to present a position that the Justice Department abandoned, might have standing to do so, but the judge himself or herself, while listed as the Respondent in the case, is only a nominal party and not a true real party in interest. Also en banc review of a panel decision of the U.S. Court of Appeals can be raised sua sponte by any judge in the Circuit, without prompting from any part for further review (which is what happened in this case). The Archaic Federal Writ of Mandamus Practice Explained There is a general rule that says that only final decisions of trial courts can be appealed to an appellate court.&lt;1&gt; Thus, usually, a criminal defendant can only appeal from a criminal case after the criminal defendant has been convicted of a crime and sentenced for that crime. But, this general rule has exceptions. A request for a writ of mandamus is one way to get around this general rule. A writ is a court order directed at a government official by a court having jurisdiction over the official, usually, but not always, in a matter in which the government official is not alleged to have done anything making the government official eligible for punishment personally. For example, a writ of execution, is a court order directing the sheriff or some other government official, to take action to enforce a court order awarding someone a money judgment that the prevailing part seeks to have the sheriff involuntarily seize. A request for writ of mandamus (i.e. for an order directing a government official subordinate to the court to take a non-discretionary action in a court case) is structured in the old fashioned approach used in federal court as a lawsuit against a judge brought in a court with supervising authority over the judge. But, in substance, this is a legal fiction and formality used (in this context, writs of mandamus are used in more than one way) to provide review of trial court decisions prior to the entry of a final decision on the merits in a case (something also called an &quot;interlocutory appeal&quot;). This process was established in the All Writs Act of 1789 (now codified at 28 U.S.C. § 1651) that applied to the federal courts the process in place immediately prior to the adoption of the United States Constitution in 1789 in the courts of the American Colonies. The procedure used in the pre-constitution courts of the American colonies was borrowed from English common law procedural practices then in place. The English practice was in turn originally established during or not long before the reign of King Edward II (reigned 1307 to 1327 CE). Those procedures have then evolved over time. This procedure was formally established in the U.S. in the federal courts by case law interpreting the All Writs Act (the All Writs Act itself is only a sentence or two long). Put another way, the All Writs Act gave the federal courts the authority to order other government officials (including but not limited to judges) to do things to carry out federal court orders, in the same broad circumstances where English common law courts has the power to do so, and using the same procedures. Originally, a writ of mandamus really was a lawsuit against a judge, and there are contexts where a writ of mandamus is sought against a government official other than a judge that continue to be a lawsuit against a government official. But, now that is just a formality and not a real lawsuit in this context, and that has been the case in cases involving writs of mandamus filed against judges for hundreds of years. &lt;1&gt; A direct appeal of right from a final criminal conviction is a relatively new innovation in the federal courts in the U.S.. The right to bring a direct appeal of right of a criminal conviction secured in federal court did not exist until 1890. And, the right to bring a direct appeal of right of a criminal conviction is not constitutionally guaranteed by the U.S. Constitution or the Bill of Rights, it exists solely by virtue of a federal statute. Prior to 1890, most judicial review of federal criminal convictions was conducted via writs of habeas corpus (which has much narrower grounds upon which relief can be granted) or via Presidential pardons. The Modern Approach Used In Many Jurisdictions Contrasted The modern approach designed to avoid the confusion associated with nominally suing the judge, is to create a court rule replacing the old fashioned legal fiction of writ of mandamus practice, in which someone files an interlocutory appeal captioned (in a criminal case) as People v. Defendant, or as Defendant v. People (depending upon who files first) which is handled essentially like an ordinary appeal but with shorter deadlines and the requirement that grounds for considering the appeal at all prior to a final order in the case be established. For example, in Colorado, where I practice, the equivalent procedure to a writ of mandamus with the judge named as Respondent in a federal court, is called a &quot;Colorado Appellate Rule 21 motion&quot;. Further Appellate Options Appeals from interlocutory writ of mandamus rulings made by a panel of a U.S. Court of Appeals are a fairly esoteric corner of federal appellate procedure, and I am not intimately familiar with the ins and outs of it, but there is a process by which someone with standing could seek further appellate review of the U.S. Court of Appeals panel's ruling. The interlocutory appeal in this case was handled by a three judge panel of one of the United States Courts of Appeal. There are two main ways that a ruling of a panel of one of the United States Courts of Appeal may be further appealed. One is to seek en banc review of the decision by all of the judges of the circuit of the U.S. Court of Appeals whose panel heard the case. The other is to appeal either from an en banc decision or directly from the panel decision, to the U.S. Supreme Court. In both circumstances, further appellate review of discretionary, the en banc panel or the U.S. Supreme Court, as the case may be, first decides the preliminary question of whether to consider the further appeal at all, and then, if that is answered in the affirmative, considers the merits of the issue or the issues raised in a further appeal. In a case of national interest involving separation of powers in which the panel issued a divided ruling, it isn't unthinkable that there would be further discretionary review of the ruling if it was sought by someone with standing to do so. The most controversial aspect of the panel ruling in this case, highlighted by the dissenting opinion, is that the Justice Department and criminal defense attorney filed the writ of mandamus before the trial court judge had a chance to consider and rule upon the motions filed in the trial court. Normally, a writ of mandamus is not considered &quot;ripe&quot; to file until a judge actually rules on a motion with a court order which the person seeking the writ alleges was mistaken, rather than before the judge gets to consider whether or not to grant that motion in the first instance as was done in this case. To paraphrase the dissenting opinion, the dissenting judge felt that the appellate court panel jumped the gun in an unprecedented and irregular manner that deprived it of jurisdiction to decide the issue because it was not yet ripe for decision. Other Ways This Could Have Been Litigated As an aside, it is also worth observing that there were multiple procedural options available in this case to prevent his client from being sentenced and to force the case to be dismissed. The writ of mandamus was brought by the Justice Department seeking to enforce its own institutional privileges. But, the more conventional approach in a case with a similar fact pattern in federal court, would be for the criminal defense attorney to file a separate lawsuit against the warden of the jail where his client is being held (who is also a nominal defendant under a different legal fiction, and who also has absolute immunity, but would be defended in the lawsuit by the Justice Department absent an alleged conflict of interest like the one present in this case) seeking a writ of habeas corpus ordering the warden to release his client, possibly before a different judge, and subject to direct appeal once resolved, rather than an interlocutory appeal via a writ of mandamus. But, it isn't often that the Justice Department seeks to withdraw its prosecution against a criminal defendant who has already pleaded guilty in a proceeding in which the factual basis of the plea has already been established on the record in open court and the case is ripe for sentencing to a serious felony sentence. Update As Of August 3, 2020 This case was selected for en banc review by the entire DC Circuit based upon the petition of the dissenting judge in the three judge panel that decided the case. The Order states: ORDER Upon consideration of the petition for rehearing en banc, the responses thereto, and the vote in favor of rehearing en banc by a majority of the judges eligible to participate, it is ORDERED that this case be reheard by the court sitting en banc. It is FURTHER ORDERED that the court’s order filed June 24, 2020, be vacated. It is FURTHER ORDERED that oral argument before the en banc court be heard at 9:30 a.m. on Tuesday, August 11, 2020. The parties should be prepared to address whether there are “no other adequate means to attain the relief” desired. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004). A separate order will issue regarding the allocation of oral argument time. Per Curiam
A lawsuit would be unsuccessful. Prosecutors have discretion to prioritize whichever offenses they think are most important, and they are generally immune from civil liability. This is a political grievance, and it comes with a political remedy; voters can recall the DA or vote for a new one when his term ends.
I don't believe your premise is necessarily true. As the Supreme Court has held, a defendant can be prosecuted for perjury after being convicted for another offense at trial: The conviction of Williams, at a former trial, for beating certain victims is not former or double jeopardy. Obviously perjury at a former trial is not the same offense as the substantive offense, under 18 U.S.C. § 242, of depriving a person of constitutional rights under color of law. . . . It would be no service to the administration of justice to enlarge the conception of former jeopardy to afford a defendant immunity from prosecution for perjury while giving testimony in his own defense. United States v. Williams, 341 U.S. 58, 62 (1951) (emphasis added). Now as a practical matter, trying a convicted person for perjury is most likely rare, since the prosecutor has already obtained a conviction for the underlying offense. Starting another prosecution for perjury might be excessive or unnecessary. But that doesn't mean it's categorically prohibited. Note also that perjury by the defendant can be considered by the judge to enhance the defendant's sentence. United States v. Dunnigan, 507 U.S. 87, 96 (1993).
The Supreme Court does not handle hypotheticals. The court has interpreted Article III Section 2 Clause 1 of the Constitution, the Case or Controversy Clause as a limit on the powers of the judicial branch. The courts have jurisdiction over various types of cases and controversies but only those listed in the Constitution. This limits courts to hearing actual cases and prevents them from issuing advisory opinions. Additionally, in order to bring a case, the plaintiff must have standing to bring the suit. You can't sue the government just because you don't like a law (well, you can, your suit will just be dismissed because it lacks standing). You have to show That you have been, or will imminently be, injured (injury-in-fact) That there is a direct correlation between that injury and the law (causation) And that a favorable court decision will redress the injury (redressability) As a practical matter, the courts are already overwhelmed by the number of actual cases that come up and the Supreme Court can only hear a tiny fraction of the cases they are asked to hear. If they added the ability to hear hypothetical cases as well, the court could easily be overwhelmed by Senators and Representatives asking them to weigh in on every remotely controversial bill or amendment before Congress or interest groups bringing cases for speculative grievances.
Generally speaking, ex parte communications with a judge (i.e. communications to which all parties to a case are not notified) are prohibited, both by law and as a matter of judicial and attorney ethics, subject to some narrow exceptions (e.g. applications for arrest warrants prior to the arrest warrant being carried out). Generally speaking, communications with the court (which is to say with judges or their subordinates) are made a matter of public record, and if the communication is about a particular case, all attorneys in the case must be given notice of it (if someone is not represented by an attorney, the notice goes to the defendant rather than their non-existent attorney). The attorney may then communicate the communication to their client, and generally speaking should communicate it to the client. I don't see anything in the question that suggests that this proposed communication would fall outside the general rule. But, the question isn't very specific and I wouldn't rule out the possibility that an exception might apply in a case with very unusual facts. Also, usually, a request to reconsider a sentence has to be made by a formal motion filed by the prosecutor or the defendant. Generally speaking, a third-party cannot file that motion unilaterally. A third-party or victim would usually only have input into the decision through the prosecutor's office. Third parties and victims are not generally permitted to file motions to reconsider sentences that have been imposed even in states with "victim's rights" statutes, but can publicly provide input to the court before a sentence is imposed, usually at the behest of either the prosecutor or the defendant. Furthermore, generally a criminal defendant has a constitutional right to not have a sentence made more severe after being sentenced the first time around. Reconsideration of a sentence once it is imposed may only be in the direction of leniency. Once a sentence is imposed, it can't be reconsidered to be made more harsh.
You are quoting standards that are applicable during an appeal. So in this case, the defendant was brought to trial, was found guilty by a jury, and is now appealing that conviction. During that initial trial, the evidence was supposed to have been weighed neutrally. In an appeal, the appellate court is not attempting to re-litigate the entirety of the case. That would be costly and slow in addition to burdensome on witnesses that might have to be called again to testify. Instead, it defers to the trial court for things like the determination of facts. The standards you quote show that an appellate court is only going to overturn a lower court's verdict as insufficient if the lower court's ruling is manifestly unjust. The prosecution and the defense presented evidence on a particular element of the crime at trial. The jury determined that the prosecution met its burden, and proved the element beyond a reasonable doubt. The appeals court is not going to substitute its judgement for that of the jury particularly when the jury had the opportunity to assess the credibility of different witnesses that may not be possible from a simple text-based transcript. If the trial court convicted and the appeals court determines that the conviction was reasonable if the evidence was viewed from the standpoint most favorable to the prosecution, then the sufficiency standard would be met and the appeal would be denied. The appeals court would only overturn the verdict as insufficient if no reasonable juror could possibly have concluded that the state met its burden of proof given the evidence presented.
There's also the matter of admitting its over is not admitting he lost. Trump could be saying privately that he thinks all possible attempts to contest were blocked, but that since almost all were blocked for non-evidentiary reasons, he can still hold that had the cases progressed to the evidentiary portion the outcomes would have been different. From an apolitical example, just because someone cannot be tried because of statute of limitations, doesn't mean they didn't do the crime... just that the prosecution didn't charge them in a timely manner. The prosecutor, upon getting the decision from the judge that the trial won't even happen, could say to himself or a client &quot;It's all over&quot; while still believing they had the guy they accused dead to rights for the crime. There is further issues with the Politico report that could negate this as evidence of Mens Rea (the first matter is for some reason the link to the report is not working for me, so pardon my ignorance of the details in the article). I'm supposing that Donald Trump did not tell the reporter this story himself, but rather a likely unnamed source that is close to Trump. Here the problem in court would be a matter of evidence (Trump would say he never said this... Politico can't refute that claim by saying we know a guy who says you did... the guy who said Trump said it could testify, but as of yet, we don't have any identity at this stage in the game... the burden of proof is on those who say Donald Trump said something that He himself says he never said or doesn't recall saying. The net result is that the statement attributed to Donald Trump would not be evidence to Mens Rea in any prosectuion right now because there is no specific person attributing the hearsay statement to Trump when Trump denies saying it (it is not hearsay to introduce statements agains opposition's intrest at trial, but the testimony to such evidence needs to be made by a person who was privy to the statement when it happened (they don't need to be the party that the comment was made to... just had to have a valid way of hearing it first hand). With all verbal statements, the larger context also applies, so access to the larger conversation as well as Trump's state of mind in the moment he said it to help infer ultimate meaning. Did Trump think he actually lost because he accepted the results OR did he think lost because he was cheated and denied a chance to be heard in court or have his evidence considered beyond pretrial determinations? The quote could be said in either context and mean totally different things as evidence to the two specific crimes you accuse him of. It's not something to dismiss off hand, but at this stage it is also not a smoking gun. Remember the classic Twilight Zone episode &quot;To Serve Man&quot; and that a single lone statement can have multiple meanings... assuming the most appealing meaning can have disasterous results when the statement is put into a broader context.
Can a corrupt sheriff cause all cases from his department to be dismissed while he was in charge? There have been cases of mass dismissals when the corruption by the law enforcement officer involves a pattern and practice of falsification of evidence provided to courts in those cases. One of the most notable such cases was this one: More than 24,000 convictions in 16,449 cases tainted by former state chemist Sonja Farak have been dismissed in a court case brought by the ACLU of Massachusetts, the Committee of Public Counsel Services (CPCS), and law firm Fick &amp; Marx LLP. The new numbers appear in a report issued by a court-designated “Special Master.” . . . For nearly nine years, former state chemist Sonja Farak used drugs that she stole from or manufactured in the Amherst Lab, causing thousands of people to be wrongfully convicted of drug crimes based on unreliable evidence. Since her arrest in 2013, Farak’s lab misconduct has been compounded by prosecutorial misconduct, including by former prosecutors with the Attorney General’s Office who – according to a judge’s findings – intentionally deceived a court and defense lawyers about the massive scope of Farak’s misconduct. In 2017, the ACLU of Massachusetts and CPCS, together with Fick &amp; Marx LLP, called for dismissal of every case tainted by Farak and subsequent years of prosecutorial misconduct. In April 2018, the Supreme Judicial Court ordered that thousands of convictions be dismissed. But, misconduct in how detainees are treated in jail does not go to the guilt or innocence of those defendants and therefore would not usually lead to mass dismissals. A prosecutor could decide on a non-legal basis that a defendant has suffered enough from mistreatment in jail and dismiss the charges, and sometimes this is done on an isolated basis. But, mistreatment of detainees would rarely if ever be a basis for a mass dismissal of charges and would be in the sole discretion of the prosecutor as an exercise of discretion not compelled or suggested by any legal requirement.