Archive | March 2016

Second Amendment threatens state stun gun bans

By John Grimm
Guest contributor

Last week, in a short per curiam opinion, the U.S. Supreme Court vacated a Massachusetts woman’s conviction for possessing a stun gun, holding that it violated her Second Amendment rights. Caetano v. Massachusetts, No. 14-10078, — S. Ct. — (2016). For Maryland lawyers (and clients), the case is no mere academic matter; at least three jurisdictions have laws on the books banning stun guns: Defendants can get up to six months in jail for possessing a stun gun in Baltimore and Howard Counties, or 60 days in Baltimore City. It’s hard to imagine these ordinances surviving Caetano, at least as applied to simple possession of a stun gun without some additional element (such as possession by a minor or someone with a prior conviction for a crime of violence, which are both illegal in Maryland).

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March 2016 Maryland certiorari grants

At this point, that the Court of Appeals of Maryland is intent on taking fewer cases is old news, but it still feels a little jarring when (essentially) only three cases get through in a month. On Friday, the Court agreed to hear questions regarding polling of jurors, declaratory judgment actions, and expert testimony for certain types of DNA evidence. Check out the specifics after the jump.

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Three nominated to Prince George’s County seat on COSA

By Chris Mincher

There’s been a lot of activity this week in the process of filling Maryland’s appellate vacancies — first, nine applications were received for the soon-to-be-open Court of Appeals spot, and, yesterday, the Judicial Nominating Commission sent three names to the governor to be considered for the Court of Special Appeals seat reserved for Prince George’s County. Five had initially applied, after which Erika Louise Pierson, an administrative law judge with the District of Columbia, withdrew. Of the remaining four, the Commission has recommended the Hon. Cathy Hollenberg Serrette and the Hon. Melanie Marva Shaw Geter, both of the county circuit court, as well as Phillip Robert Zuber of Sasscer Clagett & Bucher.

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During “March Madness,” think about constructing your litigation teams

By Brad McCullough

The NCAA basketball tournament – more commonly referred to as “March Madness” – is upon us. It’s one of the year’s most beloved sporting events, replete with dramatic comebacks, stunning upsets, and marvelous individual performances delivered in the national spotlight and under intense pressure. Teams that achieve success during the tournament, and have a chance at enjoying that “one shining moment,” must be carefully constructed. They must strike the right balance. Those teams need shooters and passers, big players who thrive down low “in the paint,” quick players who attack on the perimeter, and both defensive specialists and offensive whizzes.

Similar care should be given when building a litigation team. A good team obviously needs at least one lawyer who possesses excellent trial skills. Someone who can cross-examine opposing witnesses, can deliver compelling jury arguments, and can develop a persuasive trial strategy.

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Sorting through the “Nuts and Bolts of Maryland Appellate Practice”

By Derek Stikeleather

On Wednesday night, I had the pleasure of attending the MSBA appellate advocacy program “Nuts and Bolts of Maryland Appellate Practice,” hosted by the Frederick County Bar Association. Headlining the panel were Court of Appeals Judge Lynne Battaglia, Court of Special Appeals Judge Kathryn Graeff, the Clerk of the Court of Special Appeals, Gregory Hilton, and practitioner Thomas Lynch of Miles & Stockbridge. Attached are the handouts from each speaker. Highlights after the jump.

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Nine apply for Maryland Court of Appeals

By Chris Mincher

Now that Judge Battaglia is preparing for her impending departure, change is occurring rapidly at the Court of Appeals. With Judge Hotten being appointed in December, Judge Watts joining the Court in 2013, and Judge McDonald donning the red robe in 2012, within a month’s time, a majority of the Court’s members will have been there for less than five years. Having gotten in applications before Thursday’s deadline, nine individuals are seeking to be next through the revolving door.

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An Advocate’s View of Judge Garland in Criminal Cases

By Steve Klepper (Twitter: @MDAppeal)

I’ve had the privilege of arguing three cases before D.C Circuit Judge Merrick Garland, who is President Obama’s nominee to the Supreme Court. The media and interest groups are scrutinizing his 19 years’ worth of appellate decisions for insight on his jurisprudence. Much of the criticism from criminal justice advocates (on both the right and the left) is that they see Judge Garland as predisposed to favor prosecutors in criminal appeals. Critics typically cite Tom Goldstein’s 2010 analysis of Judge Garland’s criminal opinions.

My experience, while not necessarily representative, is at odds with this conventional wisdom. Two of my arguments before Judge Garland were as defense counsel in criminal appeals, and he wrote the opinion both times. I would be happy for Judge Garland to be on my panel in every single criminal appeal. Read More…

Seriously, this is a job for Chief Justice Roberts

By Steve Klepper (Twitter: @MDAppeal)

In a February 15 post, I proposed that Chief Justice Roberts publicly address the harm to the judiciary that would result from Senate Republicans’ proposal to turn the November 2016 election into a referendum on filling the Supreme Court vacancy. I cited Chief Justice Hughes’ 1937 letter undermining the “Court-packing plan” as precedent for such an unusual action. A number of commentators – including Lyle Denniston in a post for Constitution Daily, Ruth Marcus in a Washington Post column, and Gabe Roth in an MSNBC op-ed – later echoed the same argument.

I am under no illusion that Chief Justice Roberts would find the idea of a public statement anything but horrifying. But the political landscape, as it has unfolded over the last month, is far more horrifying. Read More…

A new Supreme Court decision could affect State v. Syed

By Steve Klepper (Twitter: @MDAppeal)

At times, the attorneys’ arguments in the February 2016 hearing in State v. Syed followed a familiar script on the question of prejudice – that is, whether facts that previously didn’t make it into the record would have made a difference. Read More…

Court of Appeals to hear arguments of officers charged in Freddie Gray death

By Michael Wein

As previous Blog posts of  January 19, February 12, and February 22 indicated would occur, expeditious Court of Appeals of Maryland arguments in the prosecution of the officers charged in Freddie Gray’s death will occur today, and are available for view by webcast. Officer William Porter initially sought relief in the appellate courts after being ordered by the trial judge to give testimony, pending his retrial, in the cases of Officers Caesar Goodwin and Alicia White, and was previously designated by the Court of Special Appeals, pursuant to Md. Rule 8-111, as the appellant in the case. Notably, after that court consolidated the appeal with those of Officers Goodwin and White, there was some disagreement about the correct caption and confusion as to whether it was appropriate to call them “Respondents” in the Court of Appeals. In any case, the four oral arguments to be heard today will address legal issues related to the cases of all six officers charged in Mr. Gray’s death.

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