Court Vacates Something for Reasons Unknown - But Is Unhappy With the Government

US v. Adams: Adams was charged with . . . something. Based on a check of the docket sheet on PACER, it was multiple counts of conspiracy, racketeering, and murder. I have no idea what the outcome of the proceedings were, however, because most of the documents below are sealed. But I assume he was convicted of something, since he appealed.

Good news for Adams - he won. On plain error review, no less. But, again, I have no idea how or why, because the court's nearly unanimous opinion is, likewise, sealed (although, to be fair, it urges the district court to revisit whether the documents should stay sealed). What isn't sealed, however, is the Fourth Circuit's sealing order, which has little to do with sealing (on which the panel was unanimous), and everything to do with questioning why the Government put up a fight on appeal.

The opinion, written by Judge King, contains a footnote (set forth in the sealing order) that expresses surprise "that the government failed to confess plain error on appeal and thereby enhance the integrity of judicial proceedings." It invoked Berger v. US and the old chestnut that a prosecutor's first duty was to justice.

Judge Agee joined all of the panel opinion except that footnote. In a concurrence issued as part of the sealing order (and itself partially redacted). He emphasized the Government's "'broad' prosecutorial discretion," that said discretion applies on appeal, and that 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." Of course, we have no idea if Judge Agree is correct, since we don't even know what the issue(s?) on appeal was, much less what the Government's argument was.

Senior Judge Davis issued his own concurrence, joining Judge King's opinion "in full." He contrasted himself to Judge Agee, "who apparently believe[s] 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," and instead "believe[s] judges need to say more, not less, to the political deficits in our criminal justice system." He goes on to say (internal citation omitted):

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,' is most charitably described as fanciful.