Mayer Brown and the Curious Case of the Sentence Commutation That Wasn’t (Quite Yet)

Things were looking up for former entertainment industry mover and shaker James Rosemond late last year.

For years, backers of Rosemond, better known as “Jimmy Henchman” back when he was managing artists such as Salt-N-Pepa, the Game, Brandy and actor Michael K. Williams, tried to get then-President Donald Trump to consider commuting his multiple life sentences for drug trafficking and murder for hire convictions.

On December 18, two of Rosemond’s supporters, former NFL great Jim Brown and his wife, Monique, got word during a phone conversation with Trump and White House staffers that their lobbying effort had paid off.

“Let’s get this guy home for Christmas,” Trump told staffers on his end of the phone line. Trump told the Browns he had “looked at everything” Rosemond’s lawyers had passed along.

“I want to do this,” Trump said, according to the Browns.

Here’s the rough part for Rosemond and his supporters: That account of the phone call with the president was included in two separate declarations from the Browns attached to a habeas petition filed last week in U.S. District Court for Northern District of West Virginia by his lawyers at Mayer Brown and Flaherty Sensabaugh Bonasso. The warden of the West Virginia prison where Rosemond is serving time never received any record of commutation and, so far, has refused to release him.

While the first 200 or so words of this column might read like some sort of legal news version of Mad Libs, it’s all true and serious business for Rosemond and his lawyers. A family friend told The Washington Post last week that members of Rosemond’s family stayed at a hotel down the street from USP Hazelton, the West Virginia prison, beginning on Dec. 22. The family friend said the slow realization Rosemond was not getting out was traumatizing for his three adult children. She added: “To be honest, it was worse than losing trial.”

Rosemond’s lawyers admit in their habeas petition that this “exact situation is unprecedented.” (How could they not?) But they contend the case law and history support Rosemond’s release. They argue under the 1927 U.S. Supreme Court case Biddle v. Perovich clemency need not be communicated in any specific form or to any specific person or entity so long as the president communicates it publicly. The phone call with the Browns and White House staffers on the line fits the bill on that front, they contend. They also point to historic accounts of President Abraham Lincoln’s commutation of death sentences of former Confederate soldiers to make the case that clemency grants need not contain any prescribed set of words. Lincoln, historians point out, commuted death sentences via notes saying “Job Smith is not to be shot until further orders from me” and “There will be no shooting nor hanging in this case.” Rosemond’s lawyers also cite an 1869 case out of the Southern District of New York, In re De Puy, to argue once a president completes an act of clemency it can’t be revoked.

“Taken together, these points yield an inescapable conclusion: Rosemond is serving a sentence that no longer exists, because President Trump commuted his sentence to time served on December 18, 2021,” his lawyers write. Clemency has already been granted, they argue. The aim of the new legal proceeding is to generate the sort of paper record that can get the prison bureaucracy to recognize it and release Rosemond.

Mayer Brown’s Michael Rayfield, who represented Rosemond in prior Second Circuit appeals of his drug conviction under the so-called “kingpin” statue and in his murder for hire case, is taking the lead on the habeas effort. (Not to take you farther down the Mad Libs rabbit hole, but one of the appeals Rayfield and company previously handled involved two jurors who reportedly researched since-debunked claims on the Internet that Rosemond was involved in a 1994 shooting targeting rapper Tupac Shakur.)

Rayfield, who is a member of the firm’s Supreme Court and appellate practice, focuses on handling class actions and consolidated litigation for corporate clients, primarily in data privacy, product liability and securities suits. But he also has a side practice handling criminal, immigration and civil rights cases for individuals. He says Rosemond initially reached out to him about six years ago after reading a fairly technical article he co-authored in the New York Law Journal about preserving issues for appeal.

“I’ve had the privilege of representing Jimmy Rosemond for over six years, and I’ve never had any doubt that he was wrongfully convicted,” Rayfield said. “We continue to be hopeful that the Biden Administration will act on Jimmy’s commutation. But as an alternative, we’ve sought habeas corpus relief in federal court. This exact situation is unprecedented, but I think it’s clear that Jimmy doesn’t belong in prison for another day.”

Rayfield said that he thinks our society “grossly mistreats” criminal defendants both in what we punish and to what degree. He said that lawyers in private practice can play a big role in improving the criminal justice system in part because of the resources they bring to the task. “At a firm like mine, where there are so many lawyers enthusiastic about doing pro bono work, you can build a public interest practice alongside your work for corporate clients. People often think of those two paths — ‘corporate’ litigation or ‘public interest’ litigation — as a choice, but you can have it both ways,” he said. “When I started practicing, I often wondered if I would lose my sense of idealism about the profession. But the opposite is true; I’m now more convinced of the power we have to help.”

Reprinted with permission from the October 13, 2021 edition of The AmLaw Litigation Daily © 2021 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.