One Month to Go, Only Seven Cases Left! (With One Potential Blockbuster)

By Michael Wein

[EIC’s Update, 8/27/2014: The Court this morning decided Kulbicki, along with Spacesaver, and Brooks. It decided Raynor this afternoon.]

[EIC’s Update, 8/18/2014: The Court has since decided Chesapeake Bay, Peters, and NIHC. We’re still waiting on Spacesaver, Raynor, Brooks, and, notably, Kulbicki.]

As a follow up on previous posts by myself and members of this Blog, the Court of Appeals, under the helm of Chief Judge Mary Ellen Barbara, appears to be smoothly finishing work for the remaining cases from the 2013 Term by the self-imposed deadline of August 31, 2014. Per the handy “Pending Cases” link on the Court of Appeals’ website, discussed previously here, only seven cases from the term remain on the Court of Appeals’ docket.

The labor law case of Spacesaver Systems v. Adam (argued June 2014), and another labor law case, Peters v. Early Healthcare Giver (argued May 2014), remain pending. These two cases, though important, simply may not yet have been finalized after the recent arguments.

Two are from the April 2014 sitting. The first is Raynor v. State, a criminal appeal involving the potentially important (and based on the oral arguments, very interesting) question of the extent to which “involuntarily” deposited DNA is still subject to Fourth Amendment protection – in that case, from sitting on a chair, after being invited by the police. Also remaining from April is an environmental case from an unreported Court of Special Appeals opinion, Chesapeake Bay Foundation and Magothy River Association v. DCW Dutchship Island, which, although it involves six Questions Presented, may be more interestingly decided on what sort of standing is necessary for an environmental group to participate in alleged “injury.”

From the March 2014 sitting, there’s the case of NIHC v. Comptroller of Maryland, which originally arises from the Tax Court, affirmed by an unreported Court of Special Appeals decision. It’s unclear from the Court’s description of the case why that case may be of intrigue enough to be still pending, though there have been are some other cases involving the standard vested in the Tax Court’s original delegation of authority on tax appeals (which is considered generally to be quite broad, and not reversible on administrative factual determinations). So perhaps this case which involves Questions Presented including, “1) Did CSA err in changing the question presented on appeal in order to address a question and a Tax Court decision not properly before the court? [and] 2) Did CSA err in affirming the Tax Court’s decision on grounds other than those set forth by the Tax Court?” is more to clarify the degree of authority actually vested with the Maryland Tax Court to deal with those legal issues actually presented on appeal.

From the February 2014 Calendar, there is likewise only one case remaining to be decided, Brooks v. Maryland, a criminal appeal of a defendant accused of sexual assault, involving multiple Questions Presented. These appear to mostly involve important evidentiary issues that occur in criminal trials such as the standard to be applied in impeachment testimony to be admitted, with perhaps some Confrontation Clause thrown in. There also appears to be the question to which the nurse practitioner who administered the victim of the charged rape, can testify as an “expert” in the case, and even if it was error to admit the nurse’s testimony as an expert, was it harmless error in the case.

Which leaves one case, which a couple of signs indicate (including being picked by fellow blog contributor Brad McCullogh as a potential “Next Big Case” this term), is going to be the “blockbuster” of the term, quite possibly with a narrow majority either way. However, it’s not from the January 2014 Calendar. Nor the December 2013 or November 2013 Calendar. Kulbricki v. State, was actually argued on October 3, 2013, which makes it pending about four months longer than any other. A review of the description from the “Pending Case” page may explain why.

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If this were the U.S. Supreme Court, a case pending four months longer than any other, would naturally on SCOTUSblog and other forums strongly suggest that the case is a close one, with at the very least a dissenting or concurring opinion, possibly multiple opinions without a clear majority. So it’s reasonable to assume that the case is not going to be unanimous. But there’s actually two very important prior and potentially controversial legal issues that appear to be tied to the Kulbricki case that makes this decision even more complex, affecting a number of convicted criminal Defendants, serving lengthy prison terms.

The first was the case of Clemons v. State , issued in 2006 in a unanimous opinion by Judge Lynne Battaglia, which held for the first time in Maryland, that Comparative Lead Bullet Analysis (CLBA) was not a scientifically reliable method of testing in criminal cases, citing the then recent literature and testing. However, for years prior to Clemons, FBI analysts were permitted to testify, and criminal defendants convicted based in whole or in part on the purported scientific conclusion, to investigatively trace back that bullets found at a crime scene so they could be “scientifically” determined to match (akin to DNA in some testimony given) and it would be extraordinarily unlikely that the batch of bullets compared (based on the chemical composition) came from anywhere but the same very narrow source of bullets, and the FBI agents concluding they were a “match”. (Later the FBI started saying they were “consistent” without fully conceding that consistency was of very limited probative value, in order to be useful scientifically for proof of criminal guilt.) It was basically later determined that the conclusions of the FBI to be a wild exaggeration of what these lead composition tests actually proved—and the usage of this testimony in criminal prosecutions has been discredited.

I noticed in the Washington Post two weeks ago discussed how a convicted murderer by the name of David Belton was faring, after being released (and his surprise of the many technologic advancements and adjusting to society after serving decades in prison.) There’s a brief reference to the Maryland Court of Appeals’ 2012 decision in State v. Unger, which is why Mr. Belton is not serving his life term for murder; about 60 criminal defendants so far have been released, usually the ones who have been model inmates and/or at an age that any possibility of recidivism is very unlikely. There’s more to come, though there have been successful prosecution retrials. However, what’s missing from this article, and similar articles I’ve seen in the Post and Baltimore Sun, is the specific legal reason for why convicted felons in Maryland, usually from the 1970s and very early 1980s, are getting a second chance. It traces back to what, certainly in retrospect, was a very improper and legally infirm provision of the Maryland Constitution, that was not in any other state in modern’ times, that made their trials Constitutionally suspect, involving jurors as the “decider” of the law (instead of this job being the exclusive province of the judge, with the jurors being the “fact finder”). Thus, because of this suspect instruction, though long ingrained as a curious vestige Maryland’s constitution, for a long while apparently no attorney in Maryland sought to challenge it to the point that there was a direct case on appeal, to clearly remove this language in jury instructions from Maryland’s jurisprudence–until the early 1980s. The question faced by the Court of Appeals in Unger v. State, which partially reversed the Court of Appeals’ opinion a few years earlier in State v. Adams, was how far was the use of this now obviously wrong jury instruction, even absent an objection at trial, justify for post-conviction purposes, a new trial. (Though practically speaking, those affected have already served at least 30 years of what are primarily life sentences). In essence, it appears to me, that this concern, narrowly approved by the Court of Appeals in Unger, was that the error at the trial level, which literally said that jurors could pick and choose their own law for conviction, and that whatever was stated by the trial judge was “advisory,” was equivalent to having a defendant being convicted on less than “reasonable doubt” which in Supreme Court decisions has been held to be so fundamentally flawed, that it necessitates a new trial. Particularly as I explain herein how Kulbicki involves this combination of interpreting two very interesting and fundamentally wrong legal errors, and the tough decision whether the Clemons error (per se or examining the facts of the case) justifies Unger type relief. It will be interesting if this Kulbricki case, does end up being closely contested as to who is the majority, and whether a decision is or isn’t issued till the very end of August, much like the United States Supreme Court, seems to mostly issue their “blockbuster” cases on the very last available day of the Term in June.