Wednesday, June 24, 2020
D.C. Circuit Panel Grants Writ of Mandamus in Flynn Case
Today a panel of the D.C. Circuit issued a 2-1 decision in In re Flynn, granting in part Michael Flynn’s petition for a writ of mandamus. Judge Rao authored the majority opinion, joined by Judge Henderson. Judge Wilkins dissented in part.
The majority “order[s] the district court to grant the government’s Rule 48(a) motion to dismiss the charges against Flynn” and vacates the district court’s order appointing retired EDNY District Judge John Gleeson as an amicus curiae to argue against the government’s motion to dismiss the charges. The majority refuses, however, to grant Flynn’s request to order reassignment of the case to a different district court judge.
It’s a politically important case, obviously, but the competing views on when a writ of mandamus is an appropriate method of appellate court intervention are worth a read in their own right.
https://lawprofessors.typepad.com/civpro/2020/06/dc-circuit-panel-grants-writ-of-mandamus-in-flynn-case.html
The In re Flynn decision demonstrates a long out-of-date view of the prosecutor’s office that permeates American criminal procedure. It continues the view that the prosecutor “owns” the prosecution. Hence, contrary to the principle of legality, we give prosecutors almost total discretion whether to prosecute. This decision extends that control further. Had Flynn been imprisoned would this court have said the prosecutor could change its mind and let Flynn out-of-jail? Once the prosecution brings the case, further handling should be the province of the judiciary and due process.
Posted by: James R Maxeiner | Jun 25, 2020 5:51:21 AM