November 2023 Maryland Certiorari Grants (and a Notable Denial)

By Steve Klepper

On Friday, the Supreme Court of Maryland granted review in two cases, both criminal appeals, on petitions filed by the Office of the Public Defender.

More noteworthy, however, the Supreme Court of Maryland today denied the State’s petition for “bypass” review of the Washington County Circuit Court’s order preliminarily enjoining the statutory ban on unlicensed shops selling hemp products with THC above certain levels.

Historically, the Court has granted most civil petitions filed by the Office of the Attorney General (OAG), including 90% (9 of 10 total) filed across the Court’s 2018-2020 Terms. The rate then declined. Before today, the Court had granted 70% (7 of 10 total) civil petitions filed by the OAG during the 2021-2023 Terms.

To be sure, this decision is not the end of the road for the State’s appeal of the preliminary injunction. A bypass petition seeks immediate review of a circuit court’s decision before the Appellate Court decides the appeal. The denial simply means that the appeal will proceed in the Appellate Court, and the Supreme Court still may grant a petition from the Appellate Court’s eventual opinion.

Even so, I’ve been tracking the Court’s petition docket since March 2017, and in that time this case is the first in which the Court has denied a bypass petition by the State in a civil appeal. It’s a small sample size; this was just the seventh such petition. Still, the sample size is small because the OAG is so selective in filing bypass petitions.

The two certiorari grants, with links to the Appellate Court decisions under review, are below.

Aaron Jarvis v. State of Maryland – Case No. 22, September Term, 2023 (Unreported ACM Opinion by Chief Judge Wells)
Issues – Criminal Law – 1) Did the ACM err when it held that the trial court’s erroneous refusal to instruct the jury on attempted voluntary manslaughter based on imperfect self-defense was harmless error where had the petitioner been convicted of attempted involuntary manslaughter rather than first-degree assault his sentence would be shorter? 2) Did the ACM err when it held that the trial court abused its discretion in not instructing the jury on imperfect self-defense?

Antonio E. Gonzalez v. State of Maryland – Case No. 23, September Term, 2023 (Unreported ACM Opinion by Judge Ripken)
Issues – Criminal Law – What must trial counsel proffer to satisfy Md. Rule 5-616(a)(4) and this Court’s holding in Kazadi v. State, 461 Md. 1 (2020) so as to permit impeachment of a witness with evidence of submission of or interest in applying for a U-Visa (available to persons who have suffered mental or physical abuse and who are helpful in the investigation or prosecution of criminal activity)? 2) Did ACM err when it held that defense counsel’s proffer was insufficient to permit impeachment of State’s witness with evidence of her application for a U-Visa. 3) Did ACM err in holding that any error was harmless even though the relevant witness’ credibility was a central issue in the case and even though Petitioner testified that, during the altercation, he touched the complaining witnesses only to protect himself?