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Is Evidence of Innocence Exculpatory Enough?

By: Isabelle Raquin

The Maryland Supreme Court’s last opinion of 2022, Carver v. State, 482 Md. 469 (2022) (Hotten, J.) (Gould, J., dissenting), analyzed the cumulative impact of newly discovered evidence and held that the newly discovered evidence did not “speak to” petitioner’s innocence, and therefore, did not require granting a writ of actual innocence. However, Justice Gould’s pointed dissent illustrates the existing controversy over the application of the standard for how much newly discovered evidence is enough to warrant a new trial. Both the Majority and the Dissent agreed on the standard to apply.  Still, in practical terms, does a petitioner have to show that the State’s evidence of guilt is insufficient? That is precisely how Justice Gould reads the Majority’s application of the standard, which effectively raises the bar for petitioners and turns the “substantial possibility of a different outcome” test into the functional equivalent of a preponderance of the evidence standard.

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Inferring Knowledge From Presumed Knowledge

By Chris Mincher

“Knowledge” might seem to be a pretty basic concept: A person either knows something or doesn’t know something. But, of course, there are precious few truly basic concepts in the law, and even a question as to what a person knows can get tricky once all the presumptions and inferences start getting worked into it. One of these — the so-called “deliberate indifference” doctrine — split the judges in the recent Appellate Court case of Woodall v. State, but the case also shed light on a premise I hadn’t previously been aware of: that presumed knowledge of the law can also support a finding that a defendant was willfully ignorant about its consequences.

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Rereading Washington v. State after Tyre Nichols’ Homicide

By Isabelle Raquin

A week ago, I wrote about Tyrie Washington v. State of Maryland, a decision by the Supreme Court of Maryland filed on December 19, 2022, which held that unprovoked flight in a high-crime neighborhood provides reasonable articulable suspicion to conduct a Terry stop.

Last week, like most people in the United States and abroad, I followed with horror the events leading to Tyre Nichols’ homicide.

Tyre Nichols’ flight from police was provoked by his fear and their brutality.  His homicide is a painful reminder of why innocent people fear the police, especially uniformed officers patrolling high-crime neighborhoods.  In Washington, the SCM precisely and explicitly recognized that reality while upholding that “unprovoked flight” in a high-crime neighborhood is a sufficiently compelling factor to justify a Terry stop.  After watching body camera footage of Tyre Nichols’ visceral fear of the police in the minutes before his death, I reread the SCM’s decision in Washington.  How can flight provoked by a legitimate fear of police justify the detention for criminal investigation of a citizen?

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U.S. Supreme Court to decide whether mere mention of someone’s name during predicate offense constitutes aggravated identity theft.

By Megan E. Coleman

On November 10, 2022, the United States Supreme Court granted certiorari in Dubin v. United States, No. 22-10, to decide “whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.” Oral argument is scheduled for February 27, 2023.

This issue not only divided the Fifth Circuit, but it split the federal circuits as well.

The Fifth Circuit’s per curiam opinion in United States v. Dubin, 27 F.4th 1021 (5th Cir. 2022), essentially stands for the proposition that any time a real person’s identity is used during a health care fraud, even if the identity was lawfully obtained, and the person did in fact receive health care services, that a conviction for aggravated identity theft will be automatic, and so will the two-year mandatory consecutive sentence of imprisonment.

In this case, Dubin was convicted of health care fraud for overbilling Medicaid by $101 for a psychological evaluation his company provided to a patient. For this he was sentenced to one year and a day in prison. However, the Government also charged Dubin with aggravated identify theft in violation of 18 U.S.C. § 1028A and obtained a conviction on that count as well, adding a mandatory two year consecutive sentence of imprisonment to Dubin’s sentence. The Government obtained this conviction, not because Dubin stole or misrepresented anyone’s identity, but because he included his patient’s accurate identifying information on the Medicaid claim that misrepresented how and when the service was performed. The Government argued at trial that Dubin’s commitment of the health care fraud offense “obviously” meant that he was “also guilty of” aggravated identity theft because aggravated identity theft is an “automatic” additional offense whenever someone commits provider-payment healthcare fraud.

The Fifth Circuit affirmed the Section 1028A conviction holding that Dubin’s fraudulent billing scheme constituted illegal “use” of a means of identification of another person.

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Unprovoked Flight, Reasonable Articulable Suspicion, and Article 26

By Isabelle Raquin

On December 19, 2022, the Supreme Court of Maryland filed Washington v. State, No. 15, September Term, 2022, addressing whether unprovoked flight in a high-crime neighborhood adds to the reasonable articulable suspicion necessary to detain a person under the Fourth Amendment and Article 26 of the Maryland Declaration of Rights.

Washington follows in the footsteps of Illinois v. Wardlow, 528 U.S. 119 (2000), where the Supreme Court of the United States considered whether unprovoked “headlong flight” in a drug-trafficking area constitutes reasonable articulable suspicion for law enforcement to detain a person.  Wardlow determined that “headlong flight—wherever it occurs—is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”  However, a lot has happened in the past 20 years that could explain why a person’s flight from law enforcement is entirely consistent with innocence.

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ACM Applies the Twigg Sentencing Package Doctrine in Two Recent Cases

By Isabelle Raquin

In Twigg v. State, 447 Md. 1, 28 (2016), the trial court failed to merge a lesser including offense at sentencing.  Compounding the error, the trial court imposed an executed sentence for a lesser included offense but suspended the sentence for the greater offense.  Twigg successfully argued on appeal that the executed sentence for the lesser included offense was illegal because the case involved multiple counts arising from a single criminal episode.  Twigg maintained that the appellate court must vacate the executed sentence for the lesser offense, while leaving intact the suspended sentence for the greater offense. 

Twigg pointed to two limitations on the appellate court’s power.  First, the text of section 12-702(b) of the Courts and Judicial Proceedings Article that limited the appellate court to remanding a “sentence.”  Second, principles of double jeopardy prevented the appellate court from vacating the suspended sentence for the greater offense and remanding for resentencing because any executed sentence imposed by the trial court would necessarily constitute an impermissible greater and successive penalty.  The Supreme Court of Maryland rejected these arguments, holding that, as a general matter, a court imposing a sentence on one count of conviction may consider sentences imposed on other counts.  Double jeopardy did not bar the resentencing primarily because there were not successive trials.  Thus, on remand, the sentencing court could resentence on the greater offense considering the sentence for the lesser included had been vacated and merged.    

The Supreme Court of Maryland resolved section 12-702(b)’s use of “sentence” in the singular to mean the package of sentences imposed for multiple counts arising from a single criminal episode.  Therefore, because the trial court originally imposed a package of inter-related sentences for multiple counts arising out of a single episode, when the appellate court must vacate one of the constituent sentences in the package, it may remand the entire package for the trial court to resentence on all remaining counts.  At Twigg’s resentencing, the trial court could impose any sentence for the greater offense up to the lesser of the statutory maximum or the aggregate sentence originally imposed for package.  This practice became known as the “sentencing package.”

Two recent opinions from the Appellate Court of Maryland (ACM) further examine the contours of Twigg’s sentencing package doctrine: Wright v. State, 255 Md. App. 407 (2022) and Mohan v. State, — Md.. App. —, CSA-REG-1853-2021 (Dec. 9, 2022). Because both cases are interesting on their individual merits, I will address the reason for each reversal and the application of the sentencing package doctrine.

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Certiorari Granted from Sharply Divided COSA Over the Right to Counsel

By Isabelle Raquin

The Court of Appeals will hear argument in State v. Clark, 255 Md. App. 327 (2022), the latest of a series of postconviction cases involving whether a presumption of prejudice applies when a trial court orders a testifying defendant not to communicate with their counsel during a break in the trial. The question sharply divided the COSA, with the Hon. Kathryn Graeff writing for the majority that the U.S. Supreme Court’s presumption of prejudice for the deprivation of counsel did not apply where trial counsel failed to object and the defendant did not produce sufficient evidence at the postconviction hearing that he would have conferred with counsel but for the erroneous order.  In a lengthy dissent, the Hon. Douglas Nazarian concluded the importance of the fundamental right to counsel required the presumption of prejudice and that the defendant should not resurrect his right after the trial court’s order depriving him of such right, in order to demonstrate he has been prejudiced. 

This case turns on the application of the rule enunciated in Geders v. U.S., 425 U.S. 80 (1976) – a  case on direct appeal – to a postconviction case governed by the principles of Strickland v. Washington, 466 U.S. 668 (1984).  In Geders, the Supreme Court held that the trial court’s order preventing a defendant from consulting his counsel about anything during a 17-hour overnight recess between his direct and cross-examination deprived him of his right to the assistance of counsel guaranteed by the Sixth Amendment. In Geders, the trial attorney had objected to the Court’s order. Geders applied a presumption of prejudice and ordered a new trial.  But what if trial counsel does not object?  That is Mr. Clark’s case.  

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Did the Frankel Decision Create an Expert Affidavit Requirement for Rule 5-702 Motions?

By Derek Stikeleather

When challenging an expert’s causation opinion that contradicts peer-reviewed medical literature under Rule 5-702(3), does the movant need to provide an affidavit from its own expert to explain the inconsistency between the literature and the challenged opinion? No.

Rule 5-702 does not require an expert affidavit for a court to consider relevant medical or other peer-reviewed scientific literature when ruling on the admissibility of expert testimony. Instead, it is a matter of counsel’s judgment (and possibly budget) to consider whether a competing expert affidavit would help show the court that the challenged opinion is unreliable and inadmissible under Rule 5-702. Although a good expert’s affidavit is often helpful, it might over-complicate some proceedings by opening a prolonged and distracting “battle of the experts.”

Sometimes, professional peer-reviewed literature speaks for itself and most effectively rebuts the challenged opinion on its own. Judges, as “gatekeepers,” do not require expert affidavits to walk them through such literature. But dicta from a recent Court of Appeals opinion, Frankel v. Deane[i], seems to suggest otherwise. This could lead some courts to invent a nonexistent expert-affidavit requirement under Rule 5-702.

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A haircut as destruction or concealment of evidence or consciousness of guilt—part two.

By Brad McCullough

Last fall, I wrote a post asking if a haircut could support a jury instruction regarding destruction or concealment of evidence. (October 25, 2021, “When can a haircut amount to destruction or concealment of evidence?”)  In Rainey v. State, 252 Md. App. 578 (2021), the defendant was charged with murder. At the time of the killing, he had long dreadlocks, but when he was arrested, his hair was close-cropped. The Court of Special Appeals held that the evidence at trial supported an inference that Rainey’s drastic haircut showed a consciousness of guilt. The intermediate appellate court also held that the trial court did not abuse its discretion in giving the pattern jury instruction dealing with destruction or concealment of evidence. The Court of Appeals granted certiorari and affirmed the intermediate appellate court. Rainey v. State, No. 54, Sept. Term, 2021.

Here are the facts. The victim was found lying dead in a Baltimore alley, with multiple gunshot wounds. A witness saw two men arguing, one of whom wore his hair in long dreadlocks. The man with dreadlocks walked away. A few moments later, the witness heard several booms and saw the man with the dreadlocks with his arm raised and the other man lying in the alley. The man lying in the alley died. The man with the dreadlocks ran off. Citiwatch and surveillance video also captured these events.

Six days later, the police showed the witness a photo array of men wearing shoulder-length dreadlocks. She selected a photo of Rainey, noting that the man in the photo looked like the shooter. A month later, she saw the shooter on the street, but he now had a very short haircut. She called the police and the man was arrested. The witness “had lived in the neighborhood for several years” and “was familiar with the illicit drug trade occurring within the neighborhood and [Rainey’s] specific involvement in the local drug trade for the past twelve to eighteen months.” Slip Op. at 4. At trial, she identified Rainey as the person with dreadlocks in the video. She also testified that she was certain he was the shooter. Id. at 6. She further “testified that between the shooting and the arrest, [Rainey] cut his shoulder-length dreadlocks to a short, close-cropped hairstyle.” Id. (footnote omitted).

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Appellate Standing in Maryland’s Mail-In Ballot Dispute

By Steve Klepper (Twitter: @MDAppeal)

On Friday, the Maryland Court of Appeals granted the State Board of Elections’ petition for immediate review of the challenge by Delegate Daniel Cox to the circuit court order allowing the canvassing of mail-in ballots to begin on October 1 instead of November 9. The Court of Appeals expedited the appeal, with both sides’ briefs due Tuesday, and oral argument on Friday, October 7.

The questions presented are:

In re: Petition for Emergency Remedy by the Maryland State Board of Elections – Case No. 21, September Term, 2022
Issues – Election Law – 1) Did the trial court correctly rule that the remedy sought under Md. Code § 8-103(b)(1) of the Election Law (“E.L.”) article comports with the principle of separation of powers because the remedy, an adjustment to the electoral calendar, is a function routinely entrusted to the judicial branch? 2) Did the trial court correctly rule that the incoming volume of mail-in ballots and inadequate time frame in which to process them constitute “emergency circumstances” that “interfere with the electoral process” as those terms are used in E.L. § 8-103(b)(1)?

Election Law § 8-103(b)(1) provides, without elaboration: “If emergency circumstances, not constituting a declared state of emergency, interfere with the electoral process, the State Board or a local board, after conferring with the State Board, may petition a circuit court to take any action the court considers necessary to provide a remedy that is in the public interest and protects the integrity of the electoral process.”

The State Board’s petition notes that the trial court allowed Delegate Cox, the Republican nominee for governor, to intervene as a matter of discretion, not right. The State Board welcomed his participation. A footnote states: “Delegate Cox’s intervention in the case mooted any concerns or controversies regarding the justiciability of the one-party proceeding.”

I don’t see the concern about justiciability in the circuit court. The Maryland Constitution has no “case or controversy” clause, and the State Board did not petition under a statute, such as the Declaratory Judgment Act, that requires an actual controversy. Many matters are justiciable in circuit courts when no controversy exists. For example, circuit courts decide uncontested petitions for adult name changes and can even waive the requirement of publication that would give notice to anyone who might object.

On the other hand, although I may well be missing something, I have trouble seeing why Delegate Cox has standing to appeal. Appellate jurisdiction requires a notice of appeal filed by a person aggrieved by the order or judgment, under the usual principles of legal standing. See Buchwald v. Buchwald, 175 Md. 103, 114 (1938). Standing requires a wrong different in character and kind from that suffered by the public generally.

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