Adnan Syed and How to Solve the Court of Special Appeals Public-Access Problem

By Michael Wein

The Maryland judiciary website posted last Wednesday about the Syed case guidelines for the public and news media interested in attending oral arguments. As noted in the detailed order by new Chief Judge Patrick Woodward, oral arguments are being held in Courtroom 1 on the second floor of the Courts of Appeal Building in Annapolis (the larger of the two courtrooms regularly used by the Court of Special Appeals). Courthouse security is taking significant protections against recording devices, and limited seating is being provided to the public and media.

This post is not about the Syed case, specifically. But the circumstances of the Syed oral arguments expose a lack of proper public access to any of the intermediate appellate court’s oral arguments, in noted contrast with the Court of Appeals.[1] Syed is quite obviously a highlighted, media-interest case, which poses an opportunity to discuss what procedures Maryland’s intermediate appellate court should consider, in at least the future, to accommodate public interest in specific, important oral arguments.

As a previous post of mine discussed on some of the differences between the two appellate courts, the Court of Appeals has had webcasts online and available for each and every oral argument for a number of years. It has a seven-judge panel that convenes in the Ceremonial Courtroom on the fourth floor, which also has far greater seating capacity for the general public. The Court of Special Appeals, however, which ordinarily has smaller, three-judge panels, routinely handles every appellate case filed as of right. I would estimate on an average month, such as May 2017, the Court of Special Appeals hears about 75 oral arguments, well more than the Court of Appeals’ approximately 15 oral arguments per month during session.

All cases granted certiorari by the Court of Appeals are, by definition under the Courts and Judicial Proceedings § 12-203, “in the public interest.” If decided, they will almost certainly be reported and construed as precedent for future trial and appeal cases. One could make the argument that it will never be the case that the Court of Special Appeals will automatically have that same obligation to provide increased public access to oral arguments, as many oral arguments in cases (particularly of a domestic variety) are not of sufficient public interest. Yet, I think the Court of Special Appeals is being too media adverse in Syed and more generally when it comes to having any oral arguments being put online.

The aversion is made clear when the Court of Special Appeals hears its most important cases. Though rarely done, the Court of Special Appeals has what’s called in banc (also called en banc) arguments.[2] These cases are by definition “in the public interest.” This post won’t detail how and when these are granted, other than they do not have specific Rule application like they do in the federal courts (a general description being given in Courts and Judicial Proceedings § 1-403). It is sufficient to note that the main recent case discussing them in Maryland comments at the outset that they are an “infrequently occurring phenomenon.” Dep’t of Human Res. v. Howard, 397 Md. 353, 354 (2007) (J. Harrell).[3]

These in banc proceedings involve all the active non-recused judges, which is now a maximum of fifteen, after the Court of Special Appeals’ capacity increased by two judges in 2013. Up through 2011, in banc cases happened about two times per year. However, the last two in banc decisions, both in Exxon Mobil Corp. v. Ford, were decided in 2012. Why in banc cases have not been held for the past five years may be tied to the simple practical reason that Courtroom 1 on the second floor, where the Syed arguments are to be held tomorrow, is not set up for that many judges to sit down and hear oral arguments. Even then, in banc cases do not provide much by the way of public accommodations.

Assuming that a significant factor is that there are now fifteen incumbent judge slots, there are two solutions. The first solution would be to refurbish Courtroom 1 to be large enough for the full-court complement, so that the size issue is moot. The second solution would be to request that, in the rare important case, the Court of Appeals lend the Ceremonial Courtroom space to its second-floor colleague. This could also be an interim step while the Court of Special Appeals considers the first option.

Now that in banc appeals are happening again, this would also be a good opportunity for the Court of Special Appeals to refine its accommodations for cases of public interest, even if it only leads to baby steps, like addressing the prohibition against video-recorded webcasts of its oral arguments. While there may not be many of them, every in banc hearing would be of “public interest” akin to the decisions of the Court of Appeals and would justify a live webcast, even if it’s just one or two times per year.

This setup, if done in a refurbished Courtroom 1 or through an agreement with the Court of Appeals to use the Ceremonial Court for only in banc arguments, should provide no worries for a three-judge panel. Having media-worthy Court of Special Appeals cases in the Ceremonial Courtroom therefore provides a fair solution of the infrequent media cases at Maryland’s intermediate appellate court.

Syed certainly qualifies to have this in banc treatment in the Ceremonial Courtroom. Doing so would permit the three-judge panel hearing the case to be live webcasted, because it fits the basic criteria of being of “public interest,” sufficient to get oral argument at the Court of Appeals. But more fundamentally and practically, it would for the most part, be able to moot the security concerns associated with the far larger number of media and the public attempting to get a seat in a limited-sized courtroom.

Instead, those interested in the Syed oral arguments can watch them comfortably from their home or business. The court can have an interesting but more controlled day because the media and interested parties can watch arguments streamed live, and they will not be required to go to Annapolis while exercising their desired rights to attend a public trial. And so further examination at restarting the in banc appeal argument, including live webcasts of the Court of Appeals, may end up reducing the overall lack of public understanding of this court. To the extent that judges of the Court of Special Appeals may not be desirous of webcasted oral arguments, it would at least be a positive step forward that would resolve the dilemma on any future high media interest cases, like that of Syed. It’s the best of both worlds.

[1] I have not personally followed or reviewed the Syed case other than what any other person can follow from watching or reading the news.

[2] This post does not address the entomology of why the more unusual spelling of “in banc” is used in Maryland, which is discussed in Howard. See also John J. Connolly, Maryland’s Right of In Banc Review, 51 Md. L. Rev. 434, 481 (1992) (“There is no justification for the spelling in banc other than the fact that it was used by the drafters of the Maryland Constitution.”).

[3] This Post also does not address that such in banc procedure rules are overdue for an overhaul by the Maryland appellate courts. See, e.g., Andrew Baida, “A Little Less Anarchy, Please,” The Daily Record (Sept. 10, 2013).


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6 responses to “Adnan Syed and How to Solve the Court of Special Appeals Public-Access Problem”

  1. CC Wiki says :

    Hi Mike. Thanks for the article. I’ve been following the Syed case from afar, so would really have appreciated a webcast. Your proposal would increase transparency without much distruption or cos, I do hope COSA take it up. And now I’m curious about the upcoming en banc hearings.

    Can you explain something though, about the nature of CoSA’s “prohibition against video-recorded webcasts of its oral arguments”? Is it formal, part of the Md Code or an internal protocol perhaps? Because there is a document on the courts’ media page with instructions for how to get permission to film, and it definitely includes CoSA as well as CoA. And in this particular case CoSA had even gone as far as already giving permission to a local TV station to film the hearing, but later retracted permission. To me as a layperson that all suggests the Syed case prohibition was a matter of choice rather than a rule. But I’m not familiar with the Md law, or the ins and outs of the system so I wondered if I’d missed something.

    • Michael Wein says :

      Thanks for your questions. As a bit of clarification, (this was published when I was out of town so haven’t looked at the published version closely until now), I’m not aware of any in banc cases that are in the pipeline, though it would be more accurate to state “now when (or if) en banc cases [restart]…” The COSA has not in the past specified these separately, though the 4th Cir. and other Federal Circuits, have a separate web page for them.

      The last cases were argued I believe in 2011 and 2010, the Exxon Mobil cases (involving a 1 Billion verdict against the Company for water contamination) and the NAACP v. State Police case (involving FOIA requests) The NAACP case didn’t seem to have any particular unusual aspects from previous cases heard en banc by the COurt, but the Exxon case, had about a 10,000 page Record extract, and after the decision, the losing party sought to argue that the in banc lineup of judges didn’t have proper quorum due to 3 judges recusing themselves. (The MD. COA did not decided that issue, since it was considered ‘moot’ since the Md. COA granted Cert on the merits) It’s possible that the Exxon case soured the court from doing them about 2 times per year. I was aware also that it was with some difficulty that the 13 judges could sit on the lectern at one time, definitely requiring more chairs to be brought in, and possibly worsened by trying to thumb through an enormous record extract. This practical concern would be worsened by the addition of 2 new COSA judges since then.

      Actually, the oral audio arguments are obtainable for a modest about $15 fee, which will be provided on a CD since they are recorded, though this is not a well-publicized service. There are restrictions perhaps on how “admissible” the oral arguments are for court purposes, but they are accessible if you write a letter to the Clerk and pay the fee.

      I think there’s no specific prohibition against “webcasting” certainly …Md.’s high court does it for every case.The media page you are referring to, I think is meant for photo-ops, or perhaps documentaries, where the Court even though they are not in an active argument, a camera crew wishes to take pictures or record video. I think the Court is “permitted” to broadcast the Syed orals, but they never have before, any oral arguments. So from that perspective, it’s being consistent. The 4th Circuit, similarly, did not permit an exception from their normal practice of never video recording or webcasting them, for the Travel Ban arguments last month, though the audio was made immediately available.

      I agree with your sentiment “[y]our proposal would increase transparency”
      without any really negatives to cost or disruptions to the Court of Special Appeals. 2 times per year (comparable to the 2 or 3 times per year in the 4th Circuit), is not asking much, and if expanded to highly unusual “media” cases, would deflate the security and overcrowding concerns that exist for those highly unusual COSA oral argument cases. That being said, they could use some more specific guidelines for its use in in Banc cases, such as “intra-Court” splits, and/or exceptional circumstances, which is how the Federal Courts examine the matter. But they don’t have to wait, IMO, until they get around to making those new guidelines. It would not be surprising if they did do that eventually, having somewhat recently adopted guidelines like those on Reconsideration motions that parrot the standards of the 4th Circuit. (Md. Rule 8-605)

      Mike Wein

      • CC Wiki says :

        I really appreciate the depth of your answers. It is a shame that COSA didn’t consider relocating to the COA courtroom earlier, the schedules don’t show any cases that afternoon.

        I’ve heard reports from people who did attend that dozens of people were turned away, and the COSA staff were professional but didn’t seem prepared. Maybe they were taken by surprise at the levels of public interest. Despite Syed’s lawyer having warned his audience – limited space – arrive early, and the obvious interest in Baltimore last year.

        This is the Media Procedure for filming I mentioned, I think its for more than stills and out of session documentary shots.

        Click to access camerainappellatecourtroomprocedure.pdf

        It dates back at least 3 years and through a change of Head of Comms. They use the phrase “pool camera” – when multiple organisations share the feed from a single camera.

        On May 11 an ABC2 journalist confirmed “a spokeswoman for the court says there will be a “pool” camera inside the courtroom; final arrangements still being worked out”, but sadly on June 1, after the Order and Press Release came out, they were told “Court spokeswoman says highest court (Court of Appeals) has approved cams and web-streaming.. Court of Special Appeals has not”.

        Another Baltimore journalist was told that the high profile of the case presented “security and dignity” concerns which seems to be boilerplate copied from Md Code.

        Your observation that Oral Arguments have never before been broadcast makes a lot of sense. But the example of the 4 Cir travel ban case seems more apt.

        Webcasts and filming in court will become more prevalent, not less, so hopefully this has been a useful experience that will prompt the new Chief Judge to take up your recommendations, although I wonder if there will be much incentive for the Court to take a decision now this case is out of their hands, and as no en/in banc cases are actually in the pipeline.

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