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Judges Split Over Criticizing Prosecutor

In this case filed under seal, a dissenting judge takes issue with a footnote that chides a federal prosecutor for failing to confess plain error on appeal in order to enhance the integrity of judicial proceedings.

The court’s opinion in this matter is filed under seal due to the sensitive nature of its contents. Premised on the conclusion that the district court committed plain error, the court’s opinion vacates and remands for further proceedings. Judge Agee joins in the court’s opinion except as to footnote 10, which reads: “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.’”

Senior Judge Davis joined in the court’s opinion in full.

The concurring opinions of Judge Agee and Senior Judge Davis each discuss footnote 10. Those concurring opinions are attached to this order, although Judge Agee’s concurring opinion is partially redacted for the same reason the court’s opinion is hereby sealed.

Nearly all the record of this matter – including most of the proceedings conducted in the district court, a portion of the public docket, substantial aspects of the appellate briefs, and the oral argument of this appeal – has been and remains sealed. As specified in footnote 11 of the court’s opinion, the district court should, on remand, consider alternatives to sealing the entire record. The parties – particularly the government – should notify the district court and this court if sealing the record is no longer necessary.


Agee, J.: It should be a rare occasion when judges criticize and thereby intrude into a legitimate exercise of prosecutorial discretion. Prosecutorial decisions are particularly ill-suited for judicial review. 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.

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 error. It is difficult for the ordinary defendant to establish plain error. 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. I join the majority except as to footnote 10, preferring to leave that portion of the opinion unsaid.

Davis. S.J.: I am pleased to join in full Judge King’s excellent opinion for the panel. A brief word is in order, however, in response to our good friend’s concurring opinion, in which exception is taken to the unexceptional observations set forth in footnote 10 of the majority opinion. 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. He quotes a comment in a concurring opinion by Judge Smith in U.S. v. Bonner, 363 F.3d 213 (3d Cir. 2004), that it “should be a rare occasion when judges criticize, and thereby intrude into, a legitimate exercise of prosecutorial discretion.”

Although Judge Smith in Bonner concurred in the reversal of the suppression order, he also specifically and explicitly approved a portion of Judge McKee’s full-throated dissent, in which Judge McKee strongly criticized state and federal prosecutors for decisions our friend apparently would view as mere “strategic choices” that should lie beyond the reach of a legitimate thoughtful critique by the members of the Third Branch. I believe judges need to say more, not less, to the political branches about the serious deficits in our criminal justice system. Judges McKee and Smith plainly agree. In sum, when judges “see something” judges should “say something.”

U.S. v. Adams (King) No. 13-4360, June 1, 2015; USDC at Baltimore, Md. (Bennett) Amy Lee Copeland for defendant; Christopher J. Romano, AUSA. VLW 015-2-088, 10 pp.



VLW 015-2-088

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