Federal judge refuses to release innocent prisoners

Brad Heath, USA TODAY | USATODAY

WASHINGTON — Even the federal prosecutors who put Gordon Lee Miller in prison couldn't get him out.

U.S. Justice Department lawyers took the unusual step in December of asking a federal judge to throw out Miller's conviction and free him because, they said, he had not actually broken the law.

But the judge's answer was still more unusual: No.

The judge's ruling against Miller is among the latest in a handful of court decisions blocking — at least temporarily — efforts by defense lawyers and prosecutors to overturn convictions in hundreds of cases in which the Justice Department agrees that people were sent to prison improperly because of a misunderstanding of federal law. The decisions raise for the first time the prospect that scores of prisoners still waiting for courts to decide their cases might remain locked up.

"It's very frustrating," said Chris Brook, legal director of the ACLU of North Carolina, which has been tracking the cases. "These are cases where everybody is on the same page. The government and the defense agree. The only one standing in the way is the judge."

Miller finished his prison sentence while the case was being decided, but still must serve three years on supervised release.

The legal dispute stems from a misunderstanding about which North Carolina state convictions were serious enough to make having a gun a federal crime. A USA TODAY investigation last year identified 60 people who had been sent to prison on gun charges even though an appeals court later determined that it was not illegal for them to have a gun. The Justice Department had initially asked courts to keep the prisoners locked up anyway, but dropped that position last year "in the interests of justice," and is now asking courts to let them out.

In response, judges have so far freed 34 people and taken at least 16 others off supervised release, court records show. A Justice Department review last year identified 175 others in the smallest of the state's three judicial districts who are entitled to be released or have their prison sentences reduced.

But this month, U.S. District Judge Robert Conrad in Charlotte turned down petitions by Miller and another man seeking to have their convictions overturned, even though prosecutors said in court filings that they were "convicted for conduct that we now understand is not criminal." Another judge, Martin Reidinger, has expressed skepticism that he can free five other men, and has asked prosecutors and defense lawyers to prepare additional filings before he makes his decision.

A Justice Department spokeswoman, Allison Price, declined to comment on the specifics of those cases, saying only that "the court is empowered with great discretion and we respect the court's decision." The department has until next week to tell Reidinger whether it still believes the men can be freed.

Miller was sent to federal prison under a law that bars people from owning guns if they have already been convicted of a crime that could have put them in prison for more than a year. But Miller's prior North Carolina convictions could have put him in jail for no more than eight months.

Conrad — the former chief federal prosecutor in Charlotte — said in a Feb. 15 order that he could not upend Miller's conviction. Miller, he wrote, was "lawfully sentenced under then-existing law," and an appeals court's 2011 decision that changed that understanding of the law did not apply to cases that were already concluded.

Miller's lawyers, who declined to comment, have appealed Conrad's order. If an appeals court upholds the decision, it could effectively block other judges from overturning convictions in similar cases that are still pending in federal courts throughout North Carolina.

The legal question turns on how state and federal law intersect in North Carolina. State law there set the maximum punishment for a crime based in part on the criminal record of whoever committed it, meaning some people who committed crimes such as possessing cocaine faced sentences of more than a year, while those with shorter records face only a few months.

For years, federal courts there said that didn't matter. If someone with a long record could have gone to prison for more than a year, they said, then all who had committed that crime are felons and cannot legally have a gun. But in 2011, the 4th Circuit Court of Appeals said judges had been getting the law wrong, ruling that only people who could have faced more than a year in prison for their crimes qualify as felons.