Maryland Court of Appeals Criminal Cases by the Numbers, 2018 Term

By Steve Klepper (Twitter: @MDAppeal)

For the most recent Court of Appeals term, which ran from September 1, 2018 through August 31, 2019, I began tracking the Court’s merits docket across a number of categories. The Court’s criminal docket offers an interesting data set, because the State of Maryland is a party to every case, and the Office of the Public Defender (OPD) represents about 60% of defendants.

Going by bottom-line judgments, the State prevailed approximately half the time, maybe more, depending on how you count them. In this post, I use a count by which the State prevailed in a majority of 34 argued cases, with a judgment for the State in 18 cases (53%), a judgment at least partially against the State in 15 cases (44%), and vacatur without affirmance or reversal in one case (3%). But the rate of judgments for the State could drop as low as 47% if you were to exclude the In re GR and In re SK juvenile justice cases; exclude Syed, where private counsel represented the State; or treat the combined opinion for Conaway and Johnson as a single case, even though they were not consolidated for briefing or argument.

Bottom-line judgments do not, of course, tell anything close to the full story. In Rosales, for example, the judgment was for the State, but the threshold jurisdictional holding (that appellate deadlines are non-jurisdictional) is likely to be of significant benefit to criminal defendants challenging their convictions. And the State won a significant legal victory in Jones, convincing the Court to abrogate the “accomplice corroboration” rule, even though the Court declined to apply that change in the law retroactively against the defendant in that case.

Still, the numbers tell a few stories that I find particularly striking. First, the Court of Special Appeals fared quite well. Of 34 argued criminal cases, the Court of Appeals affirmed the Court of Special Appeals in 22 cases (65%) and reversed or vacated in 12 cases (35%). Second, the State’s overall record as the petitioner in criminal cases—securing reversal or vacatur in five out of 14 cases (35%)—was the same as the overall rate for all petitioners. Third, as discussed below, this high rate of affirmance has implications for a category of cases that, to coin an acronym, I will call SPUDs.

A State petition from an unreported decision, or “SPUD,” presents unique considerations. For a criminal defendant, it will virtually always be in his or her individual interest to petition from an adverse ruling—whether reported or unreported—although the OPD may decline to file a petition (usually resulting in a pro se filing). For the State, when it receives an adverse reported opinion, there is unlikely to be significant downside risk in petitioning for certiorari, because the Court of Special Appeals opinion is binding in Maryland trial courts. But a SPUD requires a weighty calculation for the State, because an unreported opinion cannot be cited as precedential or persuasive authority. The State thus risks that, if the Court of Appeals grants certiorari, a non-precedential holding will be affirmed and become binding precedent across all cases.

The Court of Appeals heard seven SPUDs on the merits this past term, and the State did not fare particularly well overall. I count three affirmances as clear losses for the State: Heath and Robertson, both involving the open-the-door-doctrine; and Brown, involving mistakes in the announcement of sentences.

I count one only one unqualified State victory on a SPUD: In re GR, in which the Court of Appeals unanimously held that a crime victim was entitled to an additional $65 in restitution from a juvenile offender. And, although the State secured a reversal in Stewart, involving a claim of inconsistent jury verdicts, the Court issued no majority opinion to provide clear guidance for future cases.

Oddly, the two most important rulings for the State on SPUDs were not reversals. In Christian, the Court of Appeals vacated the decisions below and ordered a hearing on whether the transcript accurately reflected the challenged jury instructions. Because the State’s petition asserted that these errors involved “serious and wide-spread concerns about the integrity of the transcripts in this case and in other criminal trials presided over by this trial court judge,” the Court’s holding may assist the State in opposing postconviction relief in other cases. And, as noted above, the State convinced the Court to abrogate a pro-defendant rule in Jones, even though it could not convince the Court to apply its holding retroactively.

Going forward, it will be interesting to see if petitioners’ relative lack of success this past term will influence choices by the State (and, to a lesser degree, the OPD) in deciding whether to petition for certiorari in criminal cases, particularly from unreported opinions. The Court grants most petitions by the State, both civil and criminal. But the State files far fewer civil petitions, and it prevailed in all three civil cases where it was the petitioner.

A chart with selected data points is below. Please email me or leave a comment if you see any errors in the data.