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

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.”

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