Rationales on the way for per curiam orders in the cases of officers charged in death of Freddie Gray
By Michael Wein
On March 8, the Maryland Court of Appeals issued two per curiam orders, found here and here, in the cases of the police officers charged in the death of Freddie Gray — yet the reasons underlying the orders (which permitted the State to have Officer William Porter testify, prior to his own retrial, against all his fellow officers) remain a mystery. As reported in various media outlets, that became a problem for the trial judge last week when, based on the per curiam orders, he granted the State’s request to have another officer testify as a witness before his trial. The defense counsels reserved the right to reargue the matter after the high court provided its rationales for the orders.
A little more than a month after nine applied for Judge Battaglia’s seat on the Court of Appeals, the pool has been whittled to five nominations. Unsurprisingly, the only sitting Court of Special Appeals judge, the Hon. Kathryn Grill Graeff, got a golden ticket, as did the Hon. Donald E. Beachley of the Washington County Circuit Court, a former magistrate judge on the U.S. District Court for the District of Maryland. Two private practitioners are in the mix as well: Thomas Edward Lynch, III, a principal at Miles & Stockbridge, and Andrew David Levy, a partner at Brown Goldstein Levy and co-author of Appellate Practice for the Maryland Lawyer.
The Court of Appeals of Maryland has posted its certiorari grants from yesterday’s conference. The biggest news is that the Court will review the decision of the Court of Special Appeals holding that, under the Supreme Court’s decision in Walker v. Texas Div., Sons of Confederate Veterans, the Motor Vehicle Administration properly rejected a “MIERDA” vanity plate. Alan Sternstein’s December post criticizing the Court of Special Appeals decision is here.
The full list of grants, with questions presented, appears after the jump. Read More…
By John Grimm
Last month, the Court of Special Appeals handed down a major Fourth Amendment decision, holding that police need a warrant to use “cell site simulators” to track people’s locations through their mobile phones. State v. Andrews, No. 1496, Md. Ct. Spec. App. (March 30, 2016), involved the warrant-less use of the portable tracking device — also called an “IMSI catcher” and better known by various brand names including “StingRay” or “Hailstorm” — which mimics cellular network towers and causes all cell phones in its range to send a signal with the phone’s unique “international mobile subscriber identity,” or “IMSI,” number. With that number, police can measure the direction and relative strength of the phone’s signal to determine the phone’s location in real time. Because “people have a reasonable expectation that their cell phones will not be used as real-time tracking devices by law enforcement” and “an objectively reasonable expectation of privacy in real-time cell phone location information,” Slip Op. at 2, the court found that use of cell site simulators to track phones is a Fourth Amendment search, and “the government may not use a cell phone simulator without a warrant or, alternatively, a specialized order that requires a particularized showing of probable cause, based on sufficient information about the technology involved to allow a court to contour reasonable limitations on the scope and manner of the search, and that provides adequate protections in case any third-party cell phone information might be unintentionally intercepted,” id. at 64.
As we await the appointment of a successor to the empty seat on the U.S. Supreme Court, one of the early casualties of a tie vote has already occurred. Many public employers and employees had their eyes on a recent case involving the California Teachers Association, because its outcome had the potential to alter the relationship between public employees and their union representatives that has existed since the 1970s. Instead of a scintillating analysis by the Court, a tie vote yielded only a one-line order that left the decision of the Ninth Circuit Court of Appeals intact along with the existing precedent from the 1970s and 1980s. See Friedrichs v. California Teachers Ass’n, No. 14-915.
In Luis v. United States, a fractured Supreme Court found that, in a prosecution for Medicare fraud, the federal government could not freeze untainted assets needed to retain defense counsel. The vote alignment was unusual, and none of the four opinions commanded a majority. The opinion drawing the most attention is Justice Kagan’s solo dissent, which Ian Millhiser has called “the most interesting opinion the Court has handed down this year.” That dissent, read together with a prior opinion on pretrial seizures, sends an important message to the criminal defense bar – go big or go home. Read More…