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4th Circuit overturns prison sentence but only publishes footnote

The 4th U.S. Circuit Court of Appeals has vacated and remanded the sentence of a member of a Maryland-based prison gang charged with multiple counts of murder and racketeering, but the panel’s reasoning in John Adams’ case is unknown because the opinion is sealed—except that is, for one footnote from the decision.

Adams was indicted, along with 21 other members of Dead Man Inc., in November 2011. Indicted DMI members were accused of orchestrating four murders as well as smuggling drugs, cellphones, and other contraband into prison, according to prosecutors. Several of Adams’ co-defendants are serving lengthy prison sentences, with Perry Roark, DMI’s reputed leader, serving a life sentence.

But “nearly all of the record” in the case is under seal, according to the appellate opinion, including district court proceedings for all of the defendants and portions of appellate briefs in Adams’ case and oral arguments before the 4th Circuit, which took place in January. What Adams was sentenced for and for how long is not found in the online court record, and a spokeswoman for the U.S. Attorney’s office declined to comment on the case or the appellate court ruling.

Steven Klepper, editor-in-chief of the Maryland Appellate blog, said it’s unusual for the 4th Circuit to issue an opinion with any redactions.

“I hope that the 4th Circuit ultimately redacts as little as possible, because it’s problematic to have a published decision that isn’t public,” said Klepper of Kramon & Graham in Baltimore.

Judge Robert King, in an order accompanying the published concurrences, encouraged the sides, “particularly the government,” to determine on remand whether sealing some or all of the case record is still necessary.

“Public access to judicial proceedings is consistent with the First Amendment and the common-law tradition that court proceedings are presumptively open to public scrutiny,” wrote King, who also wrote the sealed opinion.

A lot of fuss over one footnote

The appellate panel, in the published footnote, said it was “somewhat surprised” prosecutors did not confess plain error on appeal and “thereby enhance the integrity of judicial proceedings.”

Judge Steven Agee, in a concurring opinion, disagreed with the footnote, arguing prosecutors have broad discretion for a reason.

“If we too eagerly and too often comment on the Government’s strategic choices, then the Government could become a less zealous advocate — and our adversarial system of justice would suffer for it,” Agee wrote.

That drew a strong rebuke from Senior Judge Andre Davis, who wrote judges should be more outspoken if they see “serious deficits” in the criminal justice system. Davis said judges in their opinions might be able to ease tensions between law enforcement and communities by explaining how government decisions are affecting the “ground floor” of the 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 becoming a less zealous advocate’ is most charitably described as fanciful,” Davis wrote.

The concurring opinions include three blacked-out sections, one of which covers more than half a page.

Amy Lee Copeland, a Georgia lawyer who represented Adams on appeal, had no comment on the 4th Circuit’s decision. Paul Hazlehurst, a public defender who represented Adams at trial, did not respond to a request for comment.

The case is John Adams v. United States of America, No. 13-4360.

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