A 'plain error' unconfessed, an appeals ruling sealed, and a murderer will be resentenced

Appeals court slaps Maryland U.S. Attorney, seals opinion; murderer to be resentenced

A convicted murderer faces resentencing in federal court after an appeals court vacated his sentence and chastised prosecutors—and then sealed their ruling. John Henry “Little Johnny” Adams, a convicted enforcer for the fearsome Dead Man Inc. gang, had a hand in at least four murders in Baltimore, according to federal prosecutors.

But it is not clear what he has pleaded guilty to, what his old sentence was, and what, exactly, the prosecutors did that was questionable.

In June, a three-judge panel voted to send Adams' case back to Judge Richard D. Bennett in the federal district court in Maryland "for further proceedings based on this ruling." The ruling itself was sealed except for footnote number 10, which suggested that the prosecutors should not have fought the appeal at all. It reads, in part:

"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 U.S. 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.'"

Judge G. Steven Agee dissented on the footnote, saying his colleagues—Judge Robert B. King, who wrote the opinion, and Senior Judge Andre M. Davis, who joined it in full—were being too hard on Maryland U.S. Attorney Rod Rosenstein. "Sometimes the government may press an argument on appeal that, from our position, seems less convincing," he wrote. "But we should expect some aggressiveness, as the Government is obliged to 'prosecute the accused with earnestness and vigor.'"

A big chunk of Agee's published opinion is obscured under black ink, redacted.

Judge Davis, who served as a district judge in Maryland until 2009, wrote a rejoinder to Agee, saying, in part, "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 defects in our criminal justice system."

The appeals judges noted that "nearly all the record of this matter . . . remains sealed." In its (sealed) footnote 11, the appeals court advises the Maryland District Court to "consider alternatives to sealing the [entirety of the] record" and carefully "weigh the competing interests at stake." They advise the prosecutor to notify the courts "if sealing this record (in whole or in part) is no longer necessary."

So much of the case is sealed that even experts had trouble interpreting the publicly available parts of it. Two experienced lawyers City Paper consulted thought the ruling overturned Adams' conviction.

However, "The order does not reverse the conviction," says U.S. Attorney Rod Rosenstein, in an email to City Paper. "The sealing order prevents us from discussing the details of the case. The legal issue was raised for the first time on appeal. The government agreed that the district court committed an error, but argued that the district court's error did not meet the legal standard of a 'plain error.'"

Rosenstein says the matter turns on a technical point. "A party who does not object in the district court – when the court could easily correct the error – forfeits the right to appeal, with limited exceptions," he writes. "When a defendant raises an error that was not challenged in the district court, the court of appeals will consider the claim only if the district court committed a 'plain error,' which means that the court of appeals will reverse only if there was (1) an error; (2) it was clear or obvious; (3) it affected the defendant's substantial rights; and (4) it must be corrected to vindicate the fairness, integrity or public reputation of judicial proceedings."

The appeals court has so ruled.

Adams was indicted along with 21 other alleged members of Dead Man Inc. in 2011. The defendants were charged with murder conspiracies, assaults, extortion, drug dealing, and criminal conspiracy under the Racketeer Influence Corrupt Organization Act, known as RICO. Adams was charged in a superseding indictment with murdering James Flanery, who was beaten and stabbed to death by a group of men on South Hanover Street in February 2009; Tony Geiger, shot in the head on Old Riverside Road in June 2009, on the city line with Anne Arundel County; Eugene Chambers, shot several times inside his home in the 1600 block of Cypress Street; and Walter Milewski, who was shot to death on the 4800 block of Carmella Drive, in Baltimore County the day after Chambers was killed.

Authorities believe that Milewski was sent to kill a fellow gang member named Jeremy Ridgeway, killed Chambers instead in a case of mistaken identity, and so was killed for that. According to a story in The Sun, prosecutors said in open court they had a lot of wiretap evidence and took more than 20 people to the grand jury—of whom all but two or three were DMI members.

Several lawyers say the appeals court's words—and the whole case—are unusual.

"It is unusual for a court to use the sort of language it used in this case to criticize the prosecution," says Michele Nethercott, director of the Innocence Project at University of Baltimore. "The government always has the choice as to whether they defend a particular action or event on appeal and some of the judges were suggesting that since the error was so clear in this case it was unseemly for the government to continue to defend the conduct on appeal."

Nethercott says it's not that unusual to see a complex criminal case sealed on the district court level, but "sealing of the appellate opinion is more uncommon and especially problematic in a published opinion that could contain precedent but no one knows what the opinion says."

Jan Paul Miller, a white-collar defense lawyer in Illinois who served as an assistant U.S. attorney in Maryland from 1995 until 2002, concurs. "It's unusual frankly for the district court case to have as much sealed as this case apparently has sealed," he adds.

"This case is particularly interesting and unusual because the Fourth Circuit issued the sealed opinion, but did not seal one of the footnotes," says Steven H. Levin, a defense attorney with Levin and Curlett in Baltimore. "And it appears that the footnote was not sealed because of the concurring opinions which addressed the substance of the footnote, but not the opinion itself.

"Although the Fourth Circuit issued the opinion sealed, it appears that the Court invited the District Court to reconsider whether the sealing order could be amended or lifted on some of the trial documents or prior proceedings. Ironically, this invitation seems to appear in Footnote 11, at least part of which is also sealed."

Levin says "Judge Davis' concurrence is probably the most interesting part of the unsealed portion of the opinion."

Davis wrote with passion: "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 judges 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 sum, when judges 'see something' judges should 'say something.'"

Adams submitted a handwritten motion on July 29 to "terminate counsel for resentencing." In it he says Pat Woodward, his lawyer, "was part of the initial defense team that led to the erroneous sentencing and caused Adams to be harmed." Woodward did not immediately return City Paper's phone call. Adams was represented on appeal by Amy Lee Copeland of Rouse and Copeland in Savannah, Georgia. She did not immediately return a reporter's phone call. 

Responses to Adams' pro-se motion are due in court by Aug. 17.


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