Kulbicki Still Awaiting Supreme Court Cert Decision

By Michael Wein

The Maryland case of Kulbicki v. State, involving the post-conviction relief appropriate for those convicted with help from the now thoroughly discredited FBI “comparative bullet lead analysis” (“CBLA”), was one of the “blockbuster” cases of last year, as noted by fellow Blog editor Brad McCullough in a post discussing how the case unexpectedly did not decide larger issues and by myself on a list of some of the “longest pending cases” in the 2013-2014 Term (Kulbicki being the longest). The 4-3 Court of Appeals decision and majority opinion by Judge Lynne Battaglia, instead of dealing with potentially more sweeping issues that could have also been addressed in the case, concentrated more narrowly on Kulbicki’s entitlement to a post-conviction remedy under a regular ineffective-assistance-of-counsel analysis, despite that potential error not being earlier presented in the certiorari petition. As Judge Robert McDonald’s dissent noted, the case “reverses Mr. Kulbicki’s conviction on the basis that his trial counsel failed to anticipate [that CBLA would one day be deemed inadmissible] and thereby provided ineffective assistance of counsel in their cross-examination of the prosecution’s CBLA forensic expert – a ground not briefed by either party in this appeal and not among the questions on which we granted the writ of certiorari in this case.”

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No, a different Arthur and Kehoe…

By Steve Klepper (Twitter: @MDAppeal)

The Court of Appeals’ latest list of denied petitions included “Arthur v. Kehoe – Pet. Docket No. 50.” I Tweeted at the time: “I’m guessing not [Court of Special Appeals] Judges [Kevin] Arthur & [Christopher] Kehoe.”

As it turns out, the coincidence did not go unnoticed at the Court of Special Appeals. The unreported opinion of the Court of Special Appeals in Kehoe v. Arthur (Feb. 11, 2015) isn’t available online, but my Tweet prompted a reader to forward me a copy of Judge Nazarian’s opinion, which opens with a gem: Read More…

A Possible Shift in Establishing a Hostile Work Environment

By Karen Federman Henry

In many respects, the en banc decision of the U.S. Court of Appeals for the Fourth Circuit in Boyer-Liberto v. Fontainebleau Corp., No. 13-1473 (May 7, 2015), presents a series of unfortunate events.* The Court used a relaxed standard for an employee to assert a claim for hostile work environment that could have a significant impact on employers.

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June 2015 Maryland Certiorari Grants

The Court of Appeals has posted this month’s granted petitions. The questions include bar exam issues like adverse possession, double jeopardy, and collateral estoppel. An interesting petition comes from a driver whose license was suspended for refusing a blood alcohol test after he blew a 0.0 on the breathalyzer. The six granted petitions, along with questions presented, appear after the jump.

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Link Roundup: June 2015

By Chris Mincher

A sea change in Fourth Circuit employment law! Upheaval of Maryland income taxes courtesy of the Supreme Court! The potential mandate of a newspaper font for all state appellate legal writing! Three monumental developments in May, two of which people other than me cared enough to write about. The links after the jump. Read More…

Joe Loves Tom and Sue: Why Roberts Could Be Writing the Same-Sex Marriage Decision

By Steve Klepper (Twitter: @MDAppeal)

[Update, June 26, 2015: Boy was I wrong…]
At the MSBA’s annual Supreme Court panel, Irv Gornstein mentioned that, during April arguments in Obergefell v. Hodges, Chief Justice Roberts asked whether bans on same-sex marriage might unconstitutionally discriminate on the basis of sex. Gornstein thought nothing would come of that questioning, because Roberts didn’t follow up on it. But don’t shocked if on June 29 we learn that Roberts is announcing the opinion for the Court, striking down the four states’ bans based on sex discrimination. If Roberts voted with the majority at the justices’ conference, it was his right to choose which justice would write the opinion. Perhaps his heart wouldn’t be in it, but I see three reasons Roberts might vote with the majority and assign the opinion to himself. Read More…

Fourth Circuit airs internal dispute about whether to criticize the Government’s appellate litigating position

By Jonathan Biran

The Fourth Circuit issued an unusual published sealing order last week in United States v. Adams, a case from the District of Maryland in which the named defendant and more than 20 others were charged under RICO for their alleged roles in the “Dead Man Incorporated” (DMI) gang. Adams, in particular, was alleged to have conspired to murder several people and to have participated in several such murders. Much of the record is sealed, but we do know that Adams entered a guilty plea in the district court, although it is not clear to what charge or charges. According to the docketing statement that Adams’ first appellate attorney filed, Adams was sentenced on May 3, 2013, and noted a timely appeal on May 14, 2013.

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Event: Supreme Court Year in Review

Beginning tomorrow, Maryland attorneys from around the state will begin arriving at the Clarion Resort Fontainebleau Hotel for the Maryland State Bar Association’s Annual Meeting. While the hotel was itself the subject of an en banc Fourth Circuit decision last month, that’s not the reason for this post. No, it’s time for the annual United States Supreme Court Year in Review.

Traditionally, the program ran on Thursday morning. But, after two years of the Supreme Court issuing decisions on the second Thursday of June – a problem, since the panel usually includes a Supreme Court journalist – it is being held on Friday morning this year. Of course, the Supreme Court decided not to issue decisions this Thursday. Hopefully, no one will be confused, because this year’s event looks great. Read More…

The Mezzanine of the Criminal Justice System

By Steve Klepper (Twitter: @MDAppeal)

Readers of How Appealing (which probably includes our entire readership) may have seen Howard Bashman’s quick post, “Fourth Circuit issues all but footnote 10 of panel’s opinion under seal, which at least allows the judges to argue over footnote 10’s propriety.” We plan to have a substantive post about the Fourth Circuit’s unusual order next week, but here’s a more trifling post in the meantime. Read More…

Rules Committee Proposes to Clarify Rule on Clarification of Record

By Chris Mincher

In the past 10 years, Maryland’s appellate courts have labored to get the message to practitioners that Md. Rule 8-414 (“[o]n motion or on its own initiative, the appellate court may order that an error or omission in the record be corrected”) is not a way for a party to get stuff into the appellate record that wasn’t presented to the lower court. This conclusion, firmly articulated in Beyond Sys., Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 10 n. 9 (2005), has been reiterated in a handful of opinions since — including Li v. Lee, 210 Md. App. 73, 94-96 (2013), which explained that even evidence created after the lower-court proceedings are over can’t be added to the record via Rule 8-414. Basically, if it wasn’t in front of the lower court, it’s not an 8-414 error or omission in the record, because it’s not supposed to be in the record.

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