Event: 4th Circuit Impact Decisions, with Remarks by Judge Harris

The Maryland State Bar Association Section of Litigation and the Maryland Chapter of the Federal Bar Association proudly present

 “Fourth Circuit Impact Decisions”
with introductory remarks by
The Honorable Pamela A. Harris

A panel of leading federal appellate practitioners will provide an overview of recent key civil and criminal decisions of the United States Court of Appeals for the Fourth Circuit.

The Honorable Pamela A. Harris will provide introductory remarks on her transition from private practice to the federal bench. Before joining the Fourth Circuit in July 2014, Judge Harris served as visiting professor at Georgetown University Law Center, as Principal Deputy Assistant Attorney General of the Office of Legal Policy at the U.S. Department of Justice, as an appellate and Supreme Court litigator with O’Melveny & Myers LLP, and as a law clerk for Supreme Court Justice John Paul Stevens and D.C. Circuit Judge Harry T. Edwards.

Ezra Gollogly, a principal with Kramon & Graham, P.A. and a member of the Fourth Circuit Judicial Conference, will then moderate a panel of three appellate attorneys: Matthew Kaiser, Samantha Chaifetz, and Steven Klepper.

Matt Kaiser is the founder of Kaiser, LeGrand & Dillon, PLLC, a litigation boutique in Washington, D.C. He represents individual and small business clients in commercial litigation, government investigations, and white-collar cases. Matt has written extensively on a number of topics – particularly in federal criminal law and procedure. He is the author of the Federal Criminal Appeals Blog, which the ABA Law Journal recognized as one of the 100 best law-related blogs in the United States for 2011, 2012, and 2013. Matt teaches professional responsibility at Georgetown University Law Center and is a member of the Fourth Circuit Judicial Conference. He clerked for Chief U.S. District Judge Catherine C. Blake.

Samantha Chaifetz is an Appellate Staff attorney with the U.S. Department of Justice, Civil Division. Sam has served as lead counsel in over 40 appeals, including constitutional, statutory, and administrative challenges, involving a wide range of issues, from privacy law to health care reform. She has drafted successful Supreme Court filings for the Office of the Solicitor General and argued in the U.S. Courts of Appeals for the D.C., Federal, First, Fourth, Seventh, Ninth, and Eleventh Circuits. In 2013, Sam received the Attorney General’s Exceptional Service Award and Civil Division Special Commendation for defense of the Patient Protection and Affordable Care Act. She clerked for U.S. District Judge Louis H. Pollak (E.D. Pa.) and for Ninth Circuit Judge Betty B. Fletcher.

Steve Klepper is a principal with Kramon & Graham, P.A. He has argued civil and criminal appeals before the Fourth Circuit, D.C. Circuit, and both Maryland appellate courts. He has briefed cases in the U.S. Supreme Court and in the Third, Eighth, and Ninth Circuits. Steve founded the Maryland Appellate Blog of the MSBA Litigation Section, which awarded him the Chair’s Award for Exceptional Service in 2014. He serves as an outside advisor for the U. Va. Appellate Practice Clinic, and as president of the Alumnae & Alumni of Goucher College.

The program will take place on Friday, November 14, 2014 at 4:00 p.m. in the Ceremonial Courtroom at the United States District Court for the District of Maryland, 6500 Cherrywood Lane, Greenbelt, Maryland 20770.

The panel discussion will be followed by a reception. Admission to the program is free. Please RSVP by October 31, 2014 to AHumes@kg-law.com.

Kulbicki v. State Dodges Due-Process Issues, Rules on Grounds That Weren’t Briefed

By Brad McCullough,

Last September, I previewed two cases that had the potential to be the Court of Appeals’ “next big case.” One of them was Kulbicki v. State, a case that demonstrates how oral argument can dramatically shape a case. In 1993, James Kulbicki was a 36-year-old married police officer with a 22-year-old mistress. After the mistress’s dead body was found with a bullet wound to the head, Kulbicki was convicted of murdering her. The prosecution’s case featured several expert witnesses, one who testified as an expert in comparative bullet-lead analysis, or “CBLA,” and another who testified as an expert in firearms identification. The Court of Special Appeals affirmed Kulbicki’s convictions and the Court of Appeals denied his petition for writ of certiorari. Kulbicki v. State, 102 Md. App. 376 (1995). Eleven years later, in Clemons v. State, 392 Md. 339 (2006), the Court of Appeals held that the conclusory aspects of CBLA are not admissible under the Frye-Reed test. Kulbicki also learned that the firearms identification expert had lied about his qualifications and that much of his trial testimony was simply false. Armed with this new information, Kulbicki sought post-conviction relief, but the circuit court denied his petition and the Court of Special Appeals affirmed.

Read More…

Three Ways That Today’s Supreme Court Marriage Vote Sends a Clear Signal to Lower Courts

By Steve Klepper (Twitter: @MDAppeal)

On Twitter today, I’ve seen comments to the effect that we shouldn’t read much into today’s Supreme Court vote denying review of the pending marriage equality cases. I disagree. For three reasons, we can tell a whole lot from today’s vote. Read More…

The Wire in the (Fourth) Circuit: Civil Rights Claims Proceed Against Police Who Inspired David Simon Characters

By Jonathan Biran

On September 24, the U.S. Court of Appeals for the Fourth Circuit issued an opinion in Owens v. Baltimore City State’s Attorney’s Office et al., largely vacating a lower court’s dismissal of a 42 U.S.C. § 1983 action brought by James Owens seeking damages for wrongful conduct by Baltimore City police officers and an assistant state’s attorney that, Owens alleges, resulted in his spending more than two decades in prison for a rape and murder he didn’t commit. If Owens can prove his allegations of intentional suppression of exculpatory evidence by police, it will be a tremendous black eye for the Baltimore City Police Department and perhaps in particular for Jay Landsman, a former BCPD detective sergeant who lent his name to a character in HBO’s The Wire and who also acted in that series.

Read More…

Your Type May Be Ripe For Review

By Chris Mincher

When it comes to typography, attorneys seem to generally pursue two goals: (1) don’t break any court rules; and (2) don’t do anything too different from everybody else. Obviously, staying in compliance with court direction is an imperative, but rigidly conforming to a standardized format never made much sense to me — considering the hundreds of pages of briefings appellate judges and clerks slog through day-in, day-out, why would anyone want theirs to blend into the pack? It would be one thing if the status quo was the unquestioned, consensus pinnacle of composition perfection, but it’s not.

Read More…

Obamacare on Appeal: Statutory Construction of This Politically Charged Question Will Inevitably Be Called Judicial Activism

By Derek Stikeleather,

In June, I wrote here that law professors should use the Supreme Court’s reversal of a Fourth Circuit opinion (CTS Corp. v. Waldburger) as their case study to teach the complexity of statutory construction. But I fear that a subsequent pair of conflicting, high-profile opinions in the D.C. Circuit and Fourth Circuit construing the Patient Protection and Affordable Care Act (“ACA”) is what many law professors will be using to teach statutory construction. Halbig v. Burwell, No. 14-5018 (D.C. Cir. July 22, 2014), rehearing en banc granted (Sep. 4, 2014), and King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014), are attractive as important cases that present a pure question of statutory construction, but using them to teach statutory construction runs the risk that students will see statutory construction as a mere euphemism for partisan “judicial activism.” The opinions are best used to instead explore the precarious role of appellate judges in resolving politically charged controversies.

Read More…

September 2014 Maryland Certiorari Grants

With autumn right around the corner, the air in the Old Line State may be taking on a bit of a chill, but, with a new slate of cert grants, the Court of Appeals’ calendar for the year is just getting’ warmed up. Highlights this go-around include cases addressing the legality of sentences below binding plea agreements; the application of the “woodlands exception” in adverse-possession matters; the authentication standard for social-media chats; whether the value of stolen goods is an element of theft; and, as the ripples of federal Confrontation Clause jurisprudence continue to undulate through state courts, whether that constitutional provision is violated by a DNA expert’s verification of a peer’s findings. Check out this month’s winners after the jump.

Read More…

Book Review: David Lat’s Supreme Ambitions

By Steve Klepper (Twitter: @MDAppeal)

David Lat of Above the Law was kind enough to send me an advance copy of his novel, Supreme Ambitions. I face a difficult task at the outset: Judge Richard Kopf’s review at Hercules and the Umpire covered most of the bases already. So much in fact that I encourage you to read his review first and to consider this post a follow-up in the same conversation.

To get the obligatory plot summary out the way, below is the book jacket summary from Amazon:

Supreme Ambitions details the rise of Audrey Coyne, a recent Yale Law School graduate who dreams of clerking for the U.S. Supreme Court someday. Audrey moves to California to clerk for Judge Christina Wong Stinson, a highly regarded appeals-court judge who is Audrey’s ticket to a Supreme Court clerkship. While working for the powerful and driven Judge Stinson, Audrey discovers that high ambitions come with a high price. Toss in some headline-making cases, a little romance, and a pesky judicial gossip blog, and you have a legal novel with the inside scoop you’d expect from the founder of Above the Law, one of the nation’s most widely read and influential legal websites.

Saying more risks spoilers. The plot has many twists and turns – some of them unexpected, some of them telegraphed, but, critically, all of them making narrative sense. Supreme Ambitions is a legitimate page-turner. Lat knows the story he wants to tell, and he tells it well. He makes no secret of the themes he wants to convey, and he conveys them effectively. Overall, it’s smashing success. Read More…

Let Freedom Ring… By Respecting Religion

By Karen Federman-Henry

This week brings with it events worthy of celebration and remembrance. The “Star Spangled Banner” celebrates its 200th birthday, while we again honor those who lost their lives so tragically on September 11, 2001. Each milestone sparks patriotism and appreciation for the foundation upon which this country rests — the protection of a number of freedoms and the separation of powers to ensure adequate checks and balances among the executive, legislative, and judicial branches of government.

Along with this separation of powers, the United States has taken pride in maintaining the separation of church and state as a means of avoiding the religious persecution that the early colonists sought to leave behind. Despite the effort, periodic blurring of the line occurs, as demonstrated in the debate about prayer in the schools, the refusal of health insurance coverage for birth control, displays of the Ten Commandments on government-owned property, and even whether the Pledge of Allegiance should remove the reference to God.

Read More…

Court Calendar, Including Dates of Certiorari Conferences, Now on Md. COA Website

By Michael Wein

Attorneys have wondered in the past, “What date will the Court of Appeals decide my certiorari petition?” Wonder no more. To continue its evolution under Chief Judge Mary Ellen Barbera – who, as discussed in previous posts, has required that an opinion in each case be issued by the end of the term in which it was considered, and spearheaded a “pending cases” webpage to keep track of undecided cases – the Court of Appeals this week created an online calendar on its homepage listing dates of significant Court events, including oral arguments. Of most interest is that now, for the first time, the anticipated dates of certiorari conferences will be available to the general public. (Thursday, September 18, 2014, and Monday, October 20, 2014, are the next-scheduled conferences.) That of course does not necessarily mean that a party’s certiorari petition will be decided at any certain conference, but at least practitioners will know to check for the outcome a day or two after each conference rather than daily throughout the month. There are additional certiorari decisions that come from time-sensitive petitions (such as in some injunction, family law, and election law cases) that are unlikely to be scheduled in advance. Still, this calendar feature should give approximate notice to most certiorari applicants of when they can learn the fate of their petitions, a welcome improvement.

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