State's attorney defends lawyers

Prosecutors' actions in drug case were ethical, office says

April 16, 2006|By MATTHEW DOLAN | MATTHEW DOLAN,SUN REPORTER

The office of Maryland U.S. Attorney Rod J. Rosenstein is mounting a vigorous defense of two of his federal prosecutors accused of misconduct in a drug conspiracy case that could end with the death penalty.

In a recent 58-page court filing, Assistant U.S. Attorney Deborah A. Johnston wrote to a federal judge that her colleagues, Jason M. Weinstein and Steven H. Levin, "conducted themselves professionally and ethically" despite the accusations.

Weinstein leads the office's violent-crime section, and Levin serves as the section's deputy chief.

The case, which could be heard by a judge as soon as next month, is raising eyebrows inside and outside the U.S. attorney's Baltimore office. Some attorneys now wonder whether an honest deal can still be brokered with prosecutors who might be secretly plotting future indictments against their clients, even as they plead guilty to lesser charges.

FOR THE RECORD - A headline in some editions of yesterday's Maryland section misidentified the office of the U.S. attorney for Maryland.
The Sun regrets the error.

The legal controversy centers on what prosecutors may have promised to defendants Howard and Raeshio Rice. Defense attorneys insist the Rice brothers only pleaded guilty to a single heroin count because prosecutors suggested the plea would insulate them against any more serious charges in the future.

But federal prosecutors said they made no such promise and therefore, felt no obligation. They charged the Rices again days after their sentencing - this time with a raft of crimes that could carry the death penalty.

Several legal experts who reviewed the case believe that prosecutors might have acted within the letter of the law. But the approach, the experts said, could make it fundamentally more difficult for defense attorneys to persuade their clients to plead guilty. In federal court, where potential penalties can be especially harsh, the vast majority of criminal cases end in guilty pleas.

In a 2004 deal, the Rice brothers each pleaded guilty to a single count of conspiracy to distribute heroin. They each received a substantial prison sentence of more than a decade. The judge in U.S. District Court in Baltimore even predicted that one of the Rices could serve his time and return to a productive life.

But less than a week after Raeshio Rice's sentencing, federal prosecutors shocked the Rice brothers in January 2005 by charging them with a host of new crimes stretching back a decade, including two killings in Baltimore. One prosecution witness characterized Howard Rice as "the biggest drug dealer in Baltimore," according to court papers.

This January, the Rices asked the presiding judge to dismiss the entire racketeering indictment because prosecutors misled defense attorneys and the judge, violating an ethical duty to be candid with the court about their plans.

In its response this month, Rosenstein's office gave no ground. His prosecutors argued that no guarantees outside the printed agreement were ever made. They backed up their claims with the affidavits from the two prosecutors as well as three drug enforcement agents.

"Indeed, the Rices and their counsel were explicitly warned that such charges could be brought if they did not cooperate," Johnston wrote in the government's filing.

Prosecutors contend that the final draft of the plea agreement did not include broad immunity from future prosecution.

Howard Rice's current attorney William B. Purpura and Harry J. Trainor, who represents Raeshio Rice, both declined to comment on the case, saying they are preparing a written response.

From the beginning, prosecutors argue, the Rices' original attorneys - former city judge Peter Ward and Steven H. Sacks - knew about the continuing investigation into the brothers' purported drug empire. The prosecutors and Drug Enforcement Administration agents agreed that they needed to outline the investigation to pressure the Rices into a deal, according to court papers.

"The team agreed to inform the Rices that there was an ongoing investigation and explain that only they could avoid being charged in a future indictment based on that ongoing investigation was to cooperate," Johnston wrote in her court filing.

During negotiations, prosecutors offered several options, according to the Rices' motion. Both brothers eventually decided to plead guilty without cooperating.

"My understanding of this plea agreement was that it was to end all of the possible cases against Mr. Rice and the Government would not pursue other charges against Mr. Rice," Sacks wrote in an affidavit filed in January.

But in court papers filed this month, Weinstein challenged Sacks' account.

"Weinstein made it clear that if the defendant proceeded to trial or pled guilty without cooperating, he faced the prospect of additional future charges," Johnston wrote in court papers.

"Most telling of all," Johnston added, "neither the Rices nor their counsel made any claims that there was such a promise until 10 months after the [racketeering] indictment was returned."

In fact, Johnston said, it was one of the Rices' new lawyers who "attempted to use the threat of misconduct allegations [against Weinstein and Levin] to obtain a favorable plea agreement."

In an interview, Rosenstein said that the unusual length of the court filing - almost 60 pages plus dozens of pages in supporting documents - "was important given the seriousness of the allegations."

He described the filing as a "very thorough response," adding to his earlier comments that his prosecutors did nothing wrong in the case.

matthew.dolan@baltsun.com

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