Martha Bayne
@marthabayne.bsky.social
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Writer, editor, dancer, souper. Coeditor of NOTHING COMPARES TO YOU: WHAT SINEAD O'CONNOR MEANS TO US. Various responsibilities @ University of Illinois Press, South Side Weekly, Theater Oobleck, Soup & Bread. Essays @ marthabayne.substack.com. .
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![MEMORANDUM OPINION
By way of context, a federal prosecutor is the representative not of an ordinary party
to a controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all. The obligation to govern impartially
concerns, above all, the state’s exercise of coercive power—meaning its power to
deprive its subjects of life, liberty, or property . . . As a representative of the state,
a prosecutor’s exercise of coercive power must be impartial . . . [in] that
prosecutorial power may not be exercised vindictively—meaning that the
prosecutor may not punish a defendant for exercising a protected statutory or
constitutional right.
United States v. Zakhari, 85 F.4th 367, 384–85 (6th Cir. 2023) (Kethledge, J., concurring)
(citations and quotations omitted). This context frames review of Defendant Kilmar Armando
Abrego Garcia’s (“Abrego”) motion to dismiss his indictment for vindictive and selective
prosecution. (Doc. Nos. 104–05). The Government opposes the motion (Doc. No. 121), and
Abrego has replied (Doc. No. 127). Abrego’s motion is not ripe for decision because he seeks
discovery and an evidentiary hearing because there is some evidence of vindictiveness here. For
the reasons that follow, the Court holds that the totality of events creates a sufficient evidentiary
basis to conclude that there is a “realistic likelihood of vindictiveness” that entitles Abrego to
discovery and requires an evidentiary hearing before the Court decides his motion. United States
v. Andrews, 633 F.2d 449, 457 (6th Cir. 1980) (en banc), cert. denied, 450 U.S. 927 (1981).](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:36eqtmzysqf7wsslczw4uxcd/bafkreiclc53pe2byz6kvt66crm25ic7v2jcpxabvsdr25eh53lt5cmgl7e@jpeg)
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