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).