How Appealing readers will have noted this post late last night:
Fourth Circuit issues all but footnote 10 of panel’s opinion under seal, which at least allows the judges to argue over footnote 10’s propriety: It’s thankfully quite rare for a federal appellate court to issue an opinion under seal. It is even more rare for an opinion to be issued under seal except for one footnote. And the reason that footnote wasn’t kept under seal is because it was the subject of a concurrence in part (devoted to explaining why the author didn’t join in the footnote) and a concurrence by the third judge on the panel in strong defense of the footnote.
The opinion does not clearly explain why it is sealed; the appeal appears to arise from a federal criminal prosecution of a Dead Man Incorporated (a Maryland prison gang) member (indictment news release here).
CA3blog readers may be interested to see that much of the unsealed part of the opinion is a discussion of a Third Circuit ruling, United States v. Bonner, 363 F.3d 213 (3d Cir. 2004). The unsealed part of the CA4 panel opinion expresses surprise that the government failed to confess plain error. The dissenting CA4 judge cites Judge Smith’s concurrence in Bonner noting that judges should rarely criticize a legitimate exercise of prosecutorial discretion. The concurring CA4 judge, the irrepressible Senior Judge Davis, counters that actually Judge Smith approved dissenting Judge McKee’s “full-throated” criticism of the prosecution in Bonner, and says:
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. Judges McKee and Smith plainly agree . . . .
Don’t see that every day.