What Are Flynn's Chances For Withdrawing His Guilty Plea?

Undercover Huber has an interesting thread today regarding Michael Flynn's chances to prevail on his motion to withdraw his guilty plea. You can view the thread unrolled here. What prompts UCH to these reflections is that Judge Sullivan has asked the parties

to address whether there needs to be an evidentiary hearing on Flynn's effort to withdraw his guilty plea.  

Hearing may include "testimony from Mr. Flynn and other witnesses under oath, subject to cross-examination"

As UCH puts it:

Might as well reschedule this to the 4th of July because if it happens, they'll [sic] be no need for any other fireworks

Sullivan cites the DC case of United States v. Cray (1995) as controlling precedent. Here's UCH's summary of the Cray holding, re what the standards are to allow a defendant to withdraw a guilty plea:

There will be 3 main components that Sullivan will use when deciding whether to accept Flynn's motion to withdraw his guilty pleas. Flynn will need to satisfy all three. 

1. Make a "legally cognizable defense" to the charges against him.

This will need to be an *affirmative* defense of being *innocent* (not just not guilty), that is legally sound, as well as factually accurate. Flynn has never done this - yet - to the lying to FBI charge. 

My guess is that Flynn's attorney, Sidney Powell, will rely heavily on two factors: The lack of predication behind the interview of Flynn, and the government's failure to produce the "original" 302--this would amount to the contention that Flynn was tricked into pleading to a set of facts in a "revised" 302 that misrepresented to him what actually took place at the interview. Flynn, of course, didn't take notes at the interview, but the TWO agents did.

2. Show either "an error in the taking of his plea" or some "more substantial" reason he failed to press his case rather than plead guilty. 

That's going to be a very heavy burden, as there was almost certainly no error in the taking of the plea given the factual record. 

Oh, and "more substantial reason" could be ineffective assistance of counsel, but that will have to go beyond counsel just not doing a good job - but egregious failures that had they not happened, would have caused Flynn to plead Not Guilty instead and go to trial. 

Here, I think we can be sure that Powell's emphasis will be on prosecutorial misconduct, but she will likely also argue strongly that the conflict of Covington (Flynn's first lawyers) played into the guilty plea.

3. If 1 & 2 are both shown, the Court will ALSO need to be satisfied that the Government would not be "substantially prejudiced" by the "delay in going to trial".

Flynn will have to show that the gov could still go to trial and not be adversely impacted - e.g. loss of witnesses.

That doesn't seem to be a problem--except that the government's witnesses have, in the meantime, lost all credibility. That fact may be used by Flynn in her other arguments.

UCH concludes:

Conclusion: withdrawing a guilty plea is a tremendous uphill battle, but let's see how it goes.

I don't want to raise false hopes. UCH is right: this is an huge uphill battle. On the other hand, Flynn is not without hope. The three factors above are case law. The case law presents the DC Court of Appeals views on how to interpret the Federal Rules of Criminal Procedure, specifically Rule 11(d)(2)(B):

(d) Withdrawing a Guilty ... Plea. A defendant may withdraw a plea of guilty ...: 

(2) after the court accepts the plea, but before it imposes sentence if: 

(B) the defendant can show a fair and just reason for requesting the withdrawal.

In other words, the three factors that UCH sets out are the Cray court's view on what a "fair and just reason for requesting the withdrawal" would be. Those words "fair and just reason" tell us right away that the facts of each case will--or should--weigh heavily in Sullivan's decision. With that in mind, here are the basic facts of Cray:

Lyman Cray, John Whitaker, and Steven Bridgeforth were originally charged with various drug and firearm offenses in an 11-count indictment.   Before their scheduled trial Whitaker pled guilty to two of the counts and agreed to testify against his codefendants. Bridgeforth and Cray then agreed to plead guilty on the same terms. When Bridgeforth and Cray appeared before the court to enter their guilty pleas, however, Cray's attorney told the judge that Cray had just changed his mind and decided to go to trial. ...

At some point during the recess, Bridgeforth and Cray were left together in a holding cell. After the recess, Cray's attorney informed the court that Cray had again reconsidered his position and would plead guilty after all. ...

During the Rule 11 colloquy, Cray admitted to each element of the crimes charged, fully agreed with the Government's proffer of evidence, and was advised of his possible sentence. When the court specifically said:  “You're not going to be able to take [your plea] back after today.   Do you understand that?”  Cray answered: “Yes, I do understand that.” When asked: “Has anyone forced, threatened, or coerced you in any way into making a guilty plea here this afternoon?” Cray responded: “No, sir.” To the question: “Are you entering your pleas of guilty to each of these crimes knowingly, freely, and voluntarily, of your own free will, because you are in fact guilty, and for no other reason?” Cray said:  “Yes, I am.” 

Nevertheless, some two-and-a-half months later but still prior to his sentencing, Cray came before the district court asking to withdraw his plea of guilty. This time Cray said that in pleading guilty “I just went along with my codefendant without really thinking about the consequences for myself.” His attorney explained further: “Basically, as I understand it, he's saying that when the attorneys were not present, it was the pressure that was being placed upon him by his codefendant in this case that led him to go along with this.” 

The district court held a two-day hearing on Cray's motion to withdraw his plea. Cray testified that Bridgeforth tried to convince him to accept the plea bargain so that Bridgeforth would not have to testify against him, and therefore be labeled a “snitch” in prison. Cray admitted that Bridgeforth had neither threatened nor physically intimidated him, but he maintained that he had pled only because Bridgeforth had pressured him to do so. “I've never turned my back on you, so you've got to help me and not turn your back on me.”) For his part, Bridgeforth denied having threatened, intimidated, or coerced Cray in any way. He testified that Cray told him he had decided to go to trial, and that Bridgeforth had simply replied: “Well, that's your right. You fight. I'm trying to take a cop.” Cray also testified that he had told his probation officer that he was guilty of only “some” of the offense behavior charged, though in response to questions from the court he acknowledged that he had made that statement with regard to the original 11-count indictment rather than the two-count information to which he ultimately pled guilty. 

At the conclusion of the hearing, the court denied Cray's motion. The court found that Cray had not made an adequate assertion of his innocence of the charges against him. In addition, specifically crediting Bridgeforth's testimony and finding Cray's statements false, the court found that Cray's claim that Bridgeforth had intimidated or coerced him into pleading guilty was false, and therefore concluded that Cray's guilty plea was knowing, free, and voluntary, and was taken in full compliance with Rule 11. Finally, the court found that the delay between Cray's guilty plea and the filing of his motion would substantially prejudice the Government's ability to prosecute the case.

I've provided this lengthy set of facts because I think Powell can reasonably argue that the facts in Flynn's case are very different from the Cray facts. Specifically, Flynn will be relying on credible claims of a conflict on the part of Flynn's first lawyers as well as government misconduct and undue pressure brought against a vulnerable family member by prosecutors to coerce a guilty plea. Judge Sullivan will have to decide whether that constitutes "a fair and just reason for requesting the withdrawal". Cray will no doubt offer guidance, but the facts should provide Sullivan with the latitude to tailor a "fair and just" resolution.

Another interesting aspect to this evidentiary hearing is that, since Flynn is claiming government misconduct, Powell should have the opportunity to cross examine various government officials, including Brandon van Grack:

Powell is going to get Van Grack on the stand. One and only time I ever had to testify as an AUSA was in exact same situation - defendant trying to W/D plea and something I had said in plea hearing was subject of my testimony and CX.

— shipwreckedcrew (@shipwreckedcrew) January 24, 2020

So, there is hope, even if by it's very nature such a motion is an uphill struggle. At the same time, Powell has prepared the case for an appeal.