State Seeks Stay and Certiorari in Remaining Freddie Gray Prosecutions

By Michael Wein

In my January 19 post about the online Court of Special Appeals documents for the prosecution of the officers charged in Freddie Gray’s death, I indicated that, as an inherently “cert-worthy” case, it would not be surprising if one of the parties sought certiorari and it ended up in the Court of Appeals. On Wednesday, that happened, as the Attorney General’s Office sought, in multiple filings (as seen on the Court of Appeal’s “Highlighted Cases” page), expedited review and a ruling that would apply in the prosecutions of the other five officers as to whether the Supreme Court’s opinion in Kastigar v. United States and Md. Code, Cts. & Jud. Proc. § 9-123 allow or prevent the admission of fellow officer William Porter’s previous testimony from his mistrial given that he will be tried again. Also at issue is the authority of the trial judge to refuse to stay three of the officers’ cases after making a pretrial evidentiary ruling relying on the State’s representation that Officer Porter’s testimony was not necessary.

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Five Apply for Prince George’s County COSA Seat

By Chris Mincher

The applicants for Judge Hotten’s former spot on the Court of Special Appeals have been announced, and, with five total, there is about 80 percent less interest than the at-large seat that 27 bench-seekers vied for in October. Granted, Judge Hotten’s position is limited to those living in Prince George’s County — which is not a place that seems to generate many appellate aspirants as of late. But the timing does give three of the county’s circuit court judges a chance to double-dip in the appointment process.

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Spoliation of the Physical Subject of the Case Can Lose It

By Brad McCullough

When we hear the word “spoliation,” we tend to think about the loss of electronically stored information, such as e-mail messages or other computer generated data. That’s because the loss of that type of evidence, and the drastic sanctions that result, is highlighted and seared into our consciousness by legal-news services. But earlier this week the Court of Special Appeals decided a spoliation case that concerned the destruction of a physical object – a house – that was “itself the subject of the case.” Cumberland Ins. Group v. Delmarva Power, No. 72 Sept. Term 2015, Slip Op. at 8 (Feb. 1, 2016). Balancing the fault of the destroying party with the level of prejudice suffered by the other party, the Court held that spoliation had occurred, that sanctions were warranted, and that the circuit court had not abused its discretion by granting summary judgment in favor of the prejudiced litigant.

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A Quick Correction on State v. Adnan Syed

By Steve Klepper

You may have seen a piece in the New York Times that quoted me on the State v. Adnan Syed case. The quotations, which the reporter read back to me on the phone, were correct. But a paraphrase that preceded those direct quotations conveys an incorrect impression of what I was saying. That paraphrase has now been repeated many times on Twitter and attributed to me as a direct quote.

Because the New York Times article identified me as the editor-in-chief of the Maryland Appellate Blog, I have spoken with the editorial board, which has agreed to allow me to post my letter to the reporter. A link to the letter is here.

January 2016 Maryland Certiorari Grants

Last month we noted that the Court of Appeals had only granted 80 certiorari petitions for its September 2015 Term, meaning either: (1) that the Court of Appeals would hear dramatically fewer cases this term, or (2) that, in a break from the recent past, it would schedule January grants for argument this term rather than hold them for the September 2016 Term. The Court of Appeals chose Door #2 with a vengeance, today granting 14 petitions and assigning all of them to its September 2015 Term docket.

In likely the biggest news out of today’s orders, the Court of Appeals will address the effect of evidence undermining Comparative Bullet Lead Analysis testimony. The full list of grants, with questions presented, appears after the jump.

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Judging Taney: A Response to Josh Blackman

By Steve Klepper (Twitter: @MDAppeal)

As Josh Blackman has covered at his blog, a Baltimore City commission has recommended removing the statue of Chief Justice Roger Taney from the city’s Mount Vernon neighborhood.

This event calls to mind an exchange I had with a then-professor at Goucher College in 1994. When he expressed sarcastic pride that a Marylander, Taney, wrote the Dred Scott decision,[1] I asked, “Wasn’t Taney otherwise considered a great justice?” He shot back: “How was the play, Mrs. Lincoln?” Point taken.

I favor removing the statue, but we should ask serious questions before cutting symbolic ties with Taney. Read More…

Appellate Documents of Officers Charged in Freddie Gray Death Published Online

By Michael Wein

In the past two weeks, some of the officers charged in the death of Freddie Gray have sought appellate and injunctive relief.  Before officer Caesar Goodson was to go on trial last week, fellow officer William Porter, a potential witness in that case, challenged the trial court’s decision to — despite his own pending retrial after a hung jury — admit his testimony from that trial with use and derivative-use immunity in accordance with the U.S. Supreme Court’s decision in Kastigar v. United States, 406 U.S. 441 (1972). See also United States v. Oliver North, 910 F.2d 843 (D.C. Cir. 1990) (requiring full Kastigar hearing on use of non-immunized testimony and possible taint thereof). On January 12, Porter, proposing an expedited appellate schedule, had his request granted by the Court of Special Appeals, with abbreviated briefing and oral arguments in March.

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Welcoming 2016—or is it really 1984?

By Karen Federman Henry

When George Orwell published his novel “1984” in 1949, it presented many impossibilities of the future—computers and other artificial intelligence, Big Brother watching every person’s move, and all of the incredible trappings of science fiction stories that many of us enjoy as a break from reality. As the real 1984 approached, technology had not achieved the level imagined in the novel: Computers were huge and immovable; portable phones looked like bricks; and the internet was a newfangled system that few people used.

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Head out to Arizona for some appellate fun in the sun!

By Steve Klepper (Twitter: @MDAppeal)

It finally happened… winter temperatures are upon us after a warm El Niño December. I’d like to invite all of the blog’s readers to attend the DRI Appellate Advocacy program in Scottsdale, Arizona this February 10–12 in Scottsdale, Arizona. Registration information is at this link, and you can download the brochure here.

Faculty will include three U.S. Court of Appeals judges and two state supreme court justices. The program will be repeating my favorite event from last time – a moot court, followed by a simulated post-argument conference among the panel.

There’s no better time to visit Arizona than the dead of winter,[*] and this great program is a perfect opportunity to get out there. I hope to see you there!


[*] Good weather not guaranteed. El Niño works in mysterious ways.

Court of Appeals latches onto State’s laches argument to limit availability of coram nobis relief

By Jonathan Biran

In Jones v. State, ­­No. 16, Sept. Term 2015, 2015 WL 8109905 (Md. Dec. 7, 2015), the Court of Appeals of Maryland significantly limited defendants’ ability to challenge their convictions and sentences through a writ of error coram nobis many years after the fact. Up until now, there have been many instances in which individuals in Maryland have had prior convictions overturned years after the fact because of a constitutional or other significant error that was overlooked at the time of conviction. That run of post-conviction successes may well be largely over after Jones.

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