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Wallace-Bey v. State – not everything she said he said was hearsay.

By J. Bradford McCullough

Five months ago, I wrote about Porter v. State, 455 Md. 220 (2017), where a deeply divided Court of Appeals, in a 4-3 decision, held that a battered spouse may rely on the imperfect self-defense to stave off a first-degree murder charge, even in the absence of a contemporaneous threat to the defendant/battered spouse. In the view of the majority, the threat of inevitable harm can constitute a threat of imminent harm. But to the dissent, only a contemporaneous threat from the decedent can constitute a threat of imminent harm for purposes of either self-defense or imperfect self-defense.

Two months after the Porter opinion was rendered, the Court of Special Appeals decided Wallace-Bey v. State, 234 Md. App. 501 (2017), which was the first post-Porter reported appellate decision in Maryland to address battered spouse syndrome and imperfect self-defense. The Court, however, was not called on to assess the imminence of the threat to the defendant. Instead, the Court was faced with what it described as “the absurd position that the prosecution persuaded the trial court to adopt,” id. at 544, i.e., that any word emanating from the decedent’s mouth in the moments leading to when the defendant shot him to death – as well as any other words he uttered during the parties’ tortured and often violent relationship – constituted inadmissible hearsay. According to an exhaustive and biting opinion from Judge Kevin Arthur – an opinion which also serves as a comprehensive primer on the law of hearsay – the circuit court’s rulings were clearly wrong and just as clearly not harmless error. Judge Arthur’s opinion serves as a cautionary tale to trial lawyers – be careful espousing overly aggressive, and ultimately erroneous, legal positions, because what you might end up “winning” is reversible error. Or be careful what ruling you ask for, because you might just get it and might just have to live with the repercussions.

Editor’s note: The testimony of the Wallace-Bey trial, as detailed in the opinion by the Court of Special Appeals, contains graphic content that is now quoted or summarized below.

Read More…

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Fourth Circuit adds to its line of cases on untimely criminal appeals.

By Jonathan Biran

Last week, I posted about United States v. Oliver, in which the Fourth Circuit held that the Court has the inherent authority to dismiss an untimely criminal appeal sua sponte. As that post was about to go live, the Fourth Circuit added to its limited jurisprudence in this area in United States v. Hyman, holding that the Government did not forfeit its objection to an untimely criminal appeal by waiting to file a motion to dismiss until after the defendant filed his opening brief.  Read More…

Fourth Circuit holds that it can dismiss an untimely criminal appeal sua sponte, but should do so only in very limited circumstances.

By Jonathan Biran

In United States v. Oliver, the Fourth Circuit recently held that the Court has the inherent authority to dismiss an untimely criminal appeal sua sponte. As a general rule, the Court said, it will not use that authority; instead, it will rely on the government to raise an objection based on untimeliness. In rare cases, however, an untimely appeal can implicate judicial interests to such an extent that not intervening would harm the court as an institution. Only in such circumstances will the Fourth Circuit exercise its authority to dismiss a criminal appeal where the government has forfeited or waived its objection. Read More…

SCOTUS vindicates 2008 Judge Wilner opinion on tolling of limitations

By Steve Klepper (Twitter: @MDAppeal)

On Monday, in Artis v. District of Columbia, the Supreme Court of the United States resolved a division of authority on the meaning of 28 U.S.C. § 1367(d). Under § 1367(d), when a federal court exercises supplemental jurisdiction over a state-law claim, the limitations period on that claim “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

Justice Ginsburg, writing for the five-justice majority, noted a division of authority on the application of the statute:

The high courts of Maryland and Minnesota, along with the Sixth Circuit, have held that §1367(d)’s tolling rule pauses the clock on the statute of limitations until 30 days after the state-law claim is dismissed. See In re Vertrue Inc. Marketing & Sales Practices Litigation, 719 F. 3d 474, 481 (CA6 2013); Goodman v. Best Buy, Inc., 777 N. W. 2d 755, 759–760 (Minn. 2010); Turner v. Kight, 406 Md. 167, 180–182, 957 A. 2d 984, 992–993 (2008). In addition to the D. C. Court of Appeals, the high courts of California and the Northern Mariana Islands have held that §1367(d) provides only a 30-day grace period for the refiling of otherwise time-barred claims. See Los Angeles v. County of Kern, 59 Cal. 4th 618, 622, 328 P. 3d 56, 58 (2014); Juan v. Commonwealth, 2001 MP 18, 6 N. Mar. I. 322, 327 (2001).

Maryland found itself on the winning side of that division of authority, Read More…

Schneider Electric in the Court of Appeals – So Much for Efficient Resolution of Surety Bond Disputes and Policies Favoring Arbitration over Litigation

By Alan B. Sternstein

Deciding in favor of litigation over arbitration, the Court of Appeals, in Schneider Elec. Bldgs. Critical Systems, Inc. v. Western Surety Co., 454 Md. 698, 165 A.3d 485 (2017) (“Schneider Electric”), affirmed a decision of the Court of Specials Appeals, discussed in this blog on June 26, 2017.

Schneider Electric Buildings Critical Systems, Inc. (“Schneider”), a contractor, had been given a performance bond by NCS, its subcontractor.  Despite their Master Subcontractor Agreement requiring dispute resolution by arbitration, and the performance bond, issued by Western Surety Company (“Surety”), binding NCS and the Surety “jointly and severally . . . to [Schneider] for the performance of the Construction Contract, which is incorporated herein by reference[,]” the Court of Appeals followed the intermediate appellate court in ruling that the Surety could choose litigation and need not participate with NCS in the arbitration that Schneider brought.   Read More…

Why The Baltimore City Circuit Court May Transfer More Tort Cases in 2018

By Derek Stikeleather

A recent Court of Appeals opinion has shaken one of the main pillars that plaintiffs have rested on when resisting transfers to a more convenient forum—deference to the plaintiff’s chosen venue. Univ. of Maryland Med. Sys. Corp. v. Kerrigan, — A.3d —-, 2017 WL 5711857 (Md. Nov. 28, 2017). By expressly holding that trial judges owe little deference to a plaintiff’s chosen venue when no plaintiff resides there, the Kerrigan opinion significantly weakens plaintiffs’ ability to secure the most plaintiff-friendly venues in any case that involves multiple venues. Read More…

Death of adult with Down syndrome shows difference between federal and Maryland interlocutory appeals

By Michael Wein

A Washington Post article dated September 13, 2017, discussed the upcoming oral arguments and the expectation was that it could “takes months” for a decision, in the death of Robert Ethan Saylor, an adult with Down Syndrome, who after refusing to leave a movie theater, to watch a second showing of Zero Dark Thirty, lead to his tragic death by sheriff deputies in Frederick, Maryland. The Fourth Circuit didn’t think months were necessary, and in a one-page opinion, two weeks later, affirmed Federal Judge William Nickerson’s 65-page decision finding genuine disputes of material facts. Read More…

The End of Frye-Reed

By Derek Stikeleather

Maryland’s Frye-Reed era appears to be ending. Last month, in Savage v. State,[1] the Court of Appeals handed down a significant decision on “the proper scope for the threshold evaluation of expert scientific evidence” under Maryland’s “Frye–Reed” test. Although the Frye-Reed test, as originally envisioned, would preclude only opinions based on novel scientific methodologies that were not “generally accepted as reliable within the expert’s particular scientific field,”[2] its scope has greatly expanded in recent decades. The Savage opinion highlights that Frye-Reed now precludes opinions, even those based on methodologies that are both (1) not novel and (2) generally accepted, if the reasoning behind the opinion is simply unreliable. Under Savage, the Frye-Reed inquiry requires trial judges—regardless of whether the expert’s underlying methodology is well-established and valid—to examine “whether the expert bridged the ‘analytical gap’ between accepted science and his ultimate conclusion in a particular case.”

How did we get here and where are we headed? Read More…

Benisek v. Lamone – an End Run for No Gain in Redistricting Challenges?

By Alan B. Sternstein

A three-judge panel of the federal district court for Maryland recently concluded another round in the longstanding legal fight over the state’s 2011 congressional redistricting plan and, in particular, the plan’s restructuring of Maryland’s Sixth Congressional District. In a 2-1 decision, the panel denied plaintiffs’ motion for a preliminary injunction against use of the redistricting plan in the upcoming 2018 midterm congressional elections. Benisek v. Lamone, 2017 U.S. Dist. LEXIS 136208 (Aug. 24, 2017) (“Benisek II”).[1] In Benisek v. Lamone sub nom. Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) (“Benisek I”), the same district court panel denied defendants’ motion to dismiss plaintiffs’ second amended complaint. Read More…

Clear and present danger: An abused spouse can hire a contract killer and argue imperfect self-defense.

By Brad McCullough

When is a threat of mortal harm so imminent that a preemptive attack is justified or at least understandable? No, this is not a discussion of the nuclear threat posed by North Korea and the possibility of preemptive military action by the Trump administration. Instead, this is a look at the recent decision of the Court of Appeals in Porter v. State, No. 88, Sept. Term, 2016 (Md. Aug. 7, 2017), a murder case involving battered spouse syndrome and imperfect self-defense. This is a very interesting case, made even more interesting by how the members of the Court split. We sometimes see appellate courts split along liberal versus conservative lines, or between Democratic appointees and Republican appointees. But here, the Court split along gender lines, with the four female judges forming the majority and the three male judges in dissent. And that split reflected diametrically opposed views of what constitutes a threat of imminent harm. To the majority, a threat of inevitable harm can constitute a threat of imminent harm. But to the dissent, only a contemporaneous threat can constitute imminent harm. Read More…