The opinion of the court was delivered by: Sporkin, District Judge.
In 1996, while on parole from a 1981 District of Columbia
conviction, Edward Maddox was arrested and charged with being a
felon in possession of a firearm when a gun was found in a car
that he had rented.*fn1 Maddox was not in the car when he was
arrested. His first trial, before this Judge, ended in a mistrial
with a hung jury, 10-1 in favor of acquittal.*fn2 A second
trial, before another Judge in 1997, produced a conviction, but
that verdict was overturned due to the prosecutor's reference to
matters not in the record in her closing statement. At Maddox's
third trial, before this Judge, he was acquitted. After the
acquittal, the District of Columbia Board of Parole (the "Parole
Board") revoked Maddox's parole on the basis of the charges tried
before this Court. Maddox has now spent more than three years in
prison since his 1996 arrest, despite having been acquitted of
Maddox's parole revocation hearing was prosecuted by the same
Assistant United States Attorney (with the approval of three of
his superiors) who lost the case before this Court, a somewhat
exceptional event since AUSAs are not authorized by law to
prosecute such matters, and the AUSA in question had never
appeared at a parole revocation hearing in his first 21 years of
government service. Maddox has petitioned for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241, claiming that the
prosecutor's "vindictive behavior" and ex parte contacts with
the Parole Board improperly tainted his hearing, and deprived him
of due process of law under the Fifth Amendment to the
The police testified that as they approached Maddox he dropped
a set of keys on a key chain showing the Enterprise car rental
company logo.*fn3 The police officer located a car in the
parking lot with a license plate displaying the Enterprise logo.
Maddox was arrested after a handgun and a quantity of PCP were
found under the driver's seat of the car, along with Maddox's
driver's license and a car rental agreement in his name. Maddox's
fingerprints were not found on any of the evidence, and he was
not in the car at the time of the arrest. Indeed, no witness
placed Maddox in the car on the day of his arrest. The drug
charge was dismissed by the government prior to the third trial.
Maddox was tried before this Court in September 1996. A mistrial
was declared after the jury stated that it was hopelessly
deadlocked, 10-1 in favor of acquittal. Citing the 10-1 vote for
acquittal, this Court released Maddox into the community on
September 17, 1996, pending retrial. During this period, Maddox
was a law abiding citizen.
The second trial was held before Judge Harold Greene on
February 27, 1997, and resulted in a conviction. Maddox was
incarcerated on February 28, 1997, and has remained in prison
ever since. The conviction was reversed on appeal because the
prosecutor argued facts not in evidence in her closing statement
to the jury. United States v. Maddox, 156 F.3d 1280 (D.C.Cir.
1998). The prosecutor made excuses for why the car keys were not
kept as evidence, and bolstered a police officer's testimony by
declaring that all of the other police officers, had they been
called to testify, would have corroborated the government's
version of the facts. In reversing the jury's verdict, the Court
of Appeals remarked:
"The practice disregards, indeed violates, the rules
governing the admission of evidence. Typically, the
attorney's statements amount to blatant hearsay about
matters not in the record. The transgressing attorney
makes himself an unsworn witness. And when it is the
prosecutor who goes outside the record, the effect is
to deprive the defendant of his right to
cross-examine the witnesses against him."
U.S. v. Maddox, 156 F.3d at 1282.
Maddox's third trial was held before this Judge in April 1999.
At that trial, for the first time, Maddox put on a defense. His
girlfriend at the time, now his wife, Dorothy Maddox, testified
that on the day in question she took the car to visit her sister.
While at her sister's home, she loaned the car to her
now-deceased nephew, Robert Gordon, at his request. Later in that
day Mrs. Maddox testified that she received a call from Maddox to
deliver the car to him at the parking lot in Simple City. Mrs.
Maddox stated that she retrieved the car from her nephew and
drove the car to Simple City where she exited the car and gave
the keys to Maddox. She said her sister, Kokeeta Edwards,
followed her in Ms. Edwards' car and she left the area in her
sister's car. Kokeeta Edwards confirmed Mrs. Maddox's testimony.
In its rebuttal case, the Government called Myisha Foxworth.
She identified herself as Robert Gordon's live-in girlfriend. She
testified that on the day in question Gordon obtained the
Enterprise car from his aunt and the two of them drove off in the
car. She stated that Gordon had several guns, and that on the day
in question, she saw Gordon place a handgun in his waistband
before they drove off in the car. When shown the gun that was
retrieved from the Enterprise rental car she said it resembled
the gun her boyfriend had on that day. She testified that her
boyfriend dealt in drugs and was murdered prior to the third
As stated above, no witness placed Maddox in the rental car on
the day in question. The government's main police witness was
impeached at trial by prior inconsistent statements about his
investigation of Mr. Maddox. Three days after the arrest in 1996,
the officer testified at a preliminary hearing that he had
personally removed the gun from under the rented car's driver's
seat, while wearing gloves. He stated then that he held the gun
by the grips to avoid smudging possible fingerprint evidence. At
the 1999 trial, the officer stated that while he did discover the
gun, he had in fact not removed it from the car. Moreover, at
trial he misidentified the weapon and had to be recalled to
identify a second weapon as the one that had been found in
Maddox's rental car.
The jury returned a verdict of not guilty in less than one
hour. This Court ordered Maddox's immediate release on April 19,
1999. For reasons that are still unclear, that order was not
complied with, and on April 21 the Parole Board executed a
detainer, seeking to revoke Maddox's parole. Maddox filed a
habeas corpus petition pursuant to 28 U.S.C. § 2241. On April 22,
this Court issued an order to the Parole Board, directing it to
show cause why Maddox should not be released pending his
revocation hearing. At a hearing on April 26, 1999 the Parole
Board claimed that this Court lacked jurisdiction to order
Maddox's release from the District of Columbia detention
facilities. This Court found that it did have jurisdiction under
28 U.S.C. § 2241. See, Sutherland v. District of Columbia Board
of Parole, 366 F. Supp. 270 (D.D.C. 1973); Blair-Bey v. Quick,
151 F.3d 1036 (D.C.Cir. 1998) (finding that district court had
jurisdiction to entertain habeas petition challenging D.C. Parole
Board procedures in denial of parole).
At the April 26, 1999 hearing, the Parole Board's only
explanation for its decision to continue Maddox's incarceration
was a concern for public safety should Maddox be released into
the community. The Court found that concern was problematic, as
Maddox was on release following his first trial, for nearly five
months, including the period of the pendency of his second trial.
During that time, Maddox complied with the conditions of his
parole and the Parole Board took no action to have him
recommitted. Maddox's continued incarceration, after being
acquitted by a jury, cannot be easily squared with the Parole
Board's prior indifference to Maddox's release.
At the conclusion of the April 26 hearing, this Court again
released Maddox, and instructed him to appear at the District of
Columbia Jail for a parole revocation hearing, scheduled for May
4, 1999. In an emergency motion, the District of Columbia
obtained a stay of this Court's order releasing Maddox, from the
Court of Appeals for the District of Columbia Circuit. As a
result, Maddox remains in prison at this time.
The Parole Revocation Hearing
Before the hearing began, at the Parole Board's request, the
AUSA had an ex parte meeting with it, behind closed doors. Mr.
Howard testified that the meeting lasted approximately 15
minutes; the AUSA stated that it lasted possibly up to 12
minutes. At the hearing before this Court, the AUSA could not
recall what was discussed at that meeting. He did not deny that
he possibly went over the merits of his case against Maddox.
It is evident from the transcript that the AUSA prosecuted the
case against Maddox at the hearing.*fn4 He called and
cross-examined witnesses. He introduced evidence and objected to
admission of certain evidence.*fn5 The AUSA even had the hubris
to instruct the Parole Board how to proceed in this matter:
[AUSA]: You're not only looking at the trial,
you're looking at Mr. Maddox as an individual that
you're responsible for in returning to the
community. If you so choose, now understand, I was
a parole officer at one point. In Morrissey v.
Parole says, that you first, as you're doing, have
to make a determination whether or not there's
reason to believe he's violated his parole. All
right. And that is not reasonable doubt. It's, he
could be violated, and I understand, I may be
wrong, if he's within 10 feet of PCP, that's a
violation in and of itself. But anyway Morrissey
says you have to make two determinations. Says —
whether it's reasonably violated and if he had
violated, then you have to decide ...