Judges Call Out Prosecutors For Overreach; Call Out Third Judge For Suggesting Courts Shouldn't Challenge Government

from the 'I-just-don't-think-we-should-be-doing-our-job' dept

Wed, Jun 3rd 2015 2:47pm — Tim Cushing

What started out as a headline-making gang bust for the feds and the Baltimore Police Department has ended with severe reprimanding of government prosecutors -- at least in one defendant's case.

In late 2011, the FBI announced the arrest of 22 members of the "Dead Man Incorporated" gang, led by Perry Roark. According to the indictments, DMI originated as a prison gang back in 2000 and the multiple arrests were the result of a 6-year investigation.

John Adams, aka "Little Johnny," was one of the 22 defendants. His conviction for -- among other things -- assault and murder has just been remanded to the district court by the Fourth Circuit, thanks to the overreach of prosecutors. Unfortunately, the details are scant because nearly the entire proceedings have been sealed. Even the Fourth's opinion has been sealed, but a redacted summary of the court's findings shows the judges' displeasure at the government's handling of Adams' prosecution.

All of the judges concur, with only one taking exception to this particular footnote from the sealed opinion.

We are somewhat surprised that the government failed to confess plain error on appeal and thereby enhance the integrity of judicial proceedings. We are again reminded of the Supreme Court’s decision in Berger v. United States, where the United States Attorney was properly described as representing a sovereign “whose obligation.... in a criminal prosecution is not that it shall win a case, but that justice shall be done.” See 295 U.S. 78, 88 (1935). As Justice Sutherland further explained, the public must have “confidence that these obligations . . . will be faithfully observed,” and that prosecutors will strive to ensure fairness and justice.

Judge Agee's minor dissent (to the footnote only) questions whether the court should be in the business of second-guessing the government's appeal efforts.

This case does not present one of those rare occasions when we should disparage a coordinate branch for doing what the Constitution and its statutory mandate charge it to do. The Government here faced a claim of unobjected-to [redacted] error. Certainly, it is “difficult” for the ordinary defendant to establish plain error. Puckett v. United States, 556 U.S. 129, 135 (2009). And some of our prior decisions suggested that reversal in circumstances like these was especially unlikely. Of course, we have ultimately rebuffed the Government’s position. But the vacatur alone should be enough of a rebuke. Thus, I join the majority except as to footnote ten, preferring to leave that portion of the opinion unsaid.

The details of the prosecutorial behavior that resulted in the court's opinion may be "secret," but the other judges' disappointment in the prosecutors is not. Judge Davis, however, is equally disappointed in his colleague's refusal to participate in one of the primary functions of the judicial branch: to act as a check against government overreach.

Our friend seems to think we are somehow being too harsh on the government, and perhaps operating outside the bounds of our adjudicative responsibilities, as well, in making the comments in that footnote, writing, in part:

Thus, “[i]t should be a rare occasion when judges criticize, and thereby intrude into, a legitimate exercise of prosecutorial discretion.” United States v. Bonner, 363 F.3d 213, 219 (3d Cir. 2004) (Smith, J., concurring).

[...]

Unlike judges, such as our concurring friend, who apparently believe it is never appropriate for those of us in the Judicial Branch to express reservations or disapproval of manifestly irregular, if not illegal, “strategic choices” by prosecutors, I believe judges need to say more, not less, to the political branches about the serious deficits in our criminal justice system.

Davis continues, scoffing at the suggestion that calling the government out for its bad behavior will somehow negatively impact its prosecutorial aims.

Contemporary discord in this country we all love, especially in stressed communities where interaction with the criminal justice system is a regular and dispiriting occurrence for many residents, might well be reduced if we judges better used our voices to inform and educate the political branches about how the decisions they make actually operate down here on the ground floor of the criminal justice system. In an era of mass incarceration such as ours, any fear that restrained judicial commentary on dicey prosecutorial practices or “strategic choices” might result in “the Government [] becom[ing] a less zealous advocate,” ante at 24-25, is most charitably described as fanciful.

Davis points out the obvious: this is exactly what courts are supposed to be doing. They're not just simply processing plants for potential inmates. They're also the last hope anyone has that they'll receive the full use of their guaranteed rights. Allowing the government to walk away from its unscrupulous behavior without passing comment on it turns the court system into just another prosecutorial tool. Davis finishes up his criticism of Judge Agee's statement by flipping the intent of this post-9/11 adage on its head:

In sum, when judges “see something” judges should “say something.”

134360R1 P (PDF)134360R1 P (Text)

Adams Docket (PDF)Adams Docket (Text)

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Filed Under: dead man incorporated, doj, fourth circuit, john adams, overreach, perry roark, prosecuturs

16 Comments

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Padpaw (profile), 3 Jun 2015 @ 2:57pm

how does a criminal gang end up getting its court precedings sealed? Are they supporting terrorism now or are people just supposed to expect secret courts with secret evidence and secret verdicts in every day court cases that have nothing to do with national security and everything to do with jailing people just because they have the power to do so with next to no versight
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That One Guy (profile), 3 Jun 2015 @ 3:18pm

Once more, with feeling this time
Do it right, do it within the law, or don't bother.

If cops and prosecutors can't be bothered to stay within the law, then all they're doing is making sure that people that might have been taken off the streets are instead having the cases against them thrown out. Either make the case within the constraints of the law, or stand back and let people who actually know how to do their jobs do it for you.
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lucidrenegade (profile), 3 Jun 2015 @ 3:36pm

Re: Once more, with feeling this time
But it's just to darn hard to do it that way.

/s
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That One Guy (profile), 3 Jun 2015 @ 3:48pm

Re: Re: Once more, with feeling this time
Where's the 'Sad but true' button when you need it, given that is pretty much the very excuse they most often bring out to justify ignoring or stretching the law, 'It's too hard to do it legally'.
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Anonymous Coward, 3 Jun 2015 @ 3:52pm

While it makes us feel all warm and fuzzy to see bad prosecutors get a rare rap on the knuckles there are no real consequences.
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Rapnel (profile), 3 Jun 2015 @ 4:18pm

Re:
When the risk of embarrassment to the prosecution threatens national security.
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Anonymous Coward, 3 Jun 2015 @ 4:39pm

This case was brought in 2011. I find it doubtful that there's anything here that legitimately still needs to be sealed. Any related investigations should have been either closed or completed by now.
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Anonymous Coward, 3 Jun 2015 @ 4:44pm

Compare Milke v. Ryan
See Milke v. Ryan

"it was the prosecutor’s “duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case... "
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Spaceman Spiff (profile), 3 Jun 2015 @ 7:20pm

As a Roark
As a bonafide Roark, I hope Perry kicks these dickheads up where the sun don't shine! What schmucks (that's from the Jewish side of the family)!
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Rekrul, 4 Jun 2015 @ 6:53am

We are again reminded of the Supreme Court’s decision in Berger v. United States, where the United States Attorney was properly described as representing a sovereign “whose obligation.... in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

A prosecutor is supposed to seek justice, not just win the case? What a quaint notion...
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Anonymous Coward, 4 Jun 2015 @ 8:01am

"Suggesting Courts Shouldn't Challenge Government"

Due to the fact that the judicial branch of the government is actually part of the government, what exactly does this mean?
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Anonymous Coward, 4 Jun 2015 @ 8:37am

Re:
...A prosecutor is supposed to seek justice, not just win the case?...

Sometimes JUSTICE is the case decided for the defense.
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David, 4 Jun 2015 @ 10:30am

Why doesn't that one judge get it?
That is exactly the reason the Judiciary is a Third Branch of government - explicitly as part of check-and-balance against their other two. Wow, someone needs to be unseated from the bench.
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Anonymous Coward, 4 Jun 2015 @ 12:30pm

Here It Is Again
"We are somewhat surprised that the government failed to confess plain error on appeal"

Once again, the executive branch is referred to as "the government" when it's only one of three (supposedly) co-equal branches thereof. With this thinking coming from the other branches of the government, it's no wonder the executive, for decades now, has considered itself the sole authority. We need to stop referring to the executive branch as "the government."
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Pragmatic, 8 Jun 2015 @ 6:24am

Re: Re: Re: Once more, with feeling this time
[Sad but True]

They've become convinced that due process is an impediment to justice and this crap will continue till they realize it's not.
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Rekrul, 9 Jun 2015 @ 8:09am

Re: Re:
Sometimes JUSTICE is the case decided for the defense.

Not in the mind of the prosecutor. To them every defendant is guilty and "justice" is locking that person up.
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