Strong Cert Candidate in the Supreme Court, May Counsel Delay in Pending Juvenile “Equivalent to Life” Sentences in States like Maryland.
By Michael Wein
The United States Supreme Court has before it, a case out of the Supreme Court of Missouri, Bostic v. Dunbar, that may affect similar pending cases in state and federal courts. This includes the case in the Maryland Court of Appeals of Matthew McCullough v. Maryland, which had oral arguments in February. Read More…
Free to leave? Maryland courts should rethink how they determine whether a car’s occupants are seized under the Fourth Amendment
By Sam Cowin and Eleanor Erney
Guest Contributors[1]
Suppose you’re sitting in a parked car, waiting for a friend on the street outside her house, when a uniformed police officer suddenly parks behind you, approaches your car on foot, and starts to question you. If you’re like us, your heart would be in your stomach before the police officer even reached your car, and you certainly wouldn’t think that driving away from the scene in the middle of the questioning was an option. The empirical evidence suggests we are not alone: In a 2009 survey, for example, most people (regardless of gender, age, or race) responded that they would not feel free to leave if they were approached and questioned by a police officer on the street.[2] Tellingly, a number of survey respondents who knew they had a right to leave a police encounter nevertheless reported that they would not feel free to exercise that right.[3]
Yet in determining whether the police seized a person in her parked car (therefore entitling that person to Fourth Amendment protection), the Maryland courts continue to operate in a fictional world in which people ordinarily feel free to drive away when a uniformed police officer unexpectedly approaches and questions them. Read More…
Judicial Impartiality Can Be Difficult to Maintain
Many litigators have experienced those situations where a judge becomes interested in the case and asks a witness a follow-up question. It goes with the territory, right? So what about when a judge reopens your case instead of outright dismissing it? The Court of Special Appeals has an answer—the judge needs to be cautious when doing so or risk crossing the line of impartiality. See Payton v. State, CSA No. 2115, Sept. Term, 2016 (February 1, 2018).
It’s OK; the trial judge knew what defense counsel meant – Watts v. State
A Maryland appellate court will ordinarily entertain a challenge concerning a jury instruction only if counsel objected promptly after the trial judge instructed the jury, clearly stating the grounds for the objection. Requiring counsel to make a prompt and clear objection gives the trial judge an opportunity to consider the objection and make any changes he or she deems necessary. But what happens when trial counsel makes an imprecise objection, which is followed by a quick discussion that indicates that the trial judge understands the objection and the point trial counsel is trying to make? That was the situation facing the Court of Appeals in Watts v. State, No. 17, Sept. Term 2017 (February 20, 2018). Read More…
Fourth Circuit resolves nuts-and-bolts questions of removal jurisdiction
By Steve Klepper (Twitter: @MDAppeal)
Practice in the Fourth Circuit means that you often rely on persuasive authority on questions where, in other Circuits, you might expect to find on-point precedent. By local rule, the Fourth Circuit only issues reported opinions in cases where it hears oral argument. It hears oral argument at one of the lowest rates in the country. And, even when it does hear argument, it might still issue unreported opinions in cases that outsiders might think worthy of publication.
I was pleasantly surprised, therefore, to see the Fourth Circuit issue the first precedential appellate opinion in the country on an issue that I frequently encounter.[*] Read More…
Supreme Court Circuit Split Watch – Fourth Circuit’s Decision in Kumar v. Sudan, on Proper Service of Foreign States in the U.S.
By Michael Wein
The Fourth Circuit Court of Appeals three weeks ago issued a reported opinion in Kumar et al. v. Sudan, addressing how and where a foreign country may be served under 28 U.S.C. § 1608(a)(3), which allows, in pertinent part, service by mail “requiring a signed receipt[] to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state.” This case traces to the U.S.S. Cole bombing in 2000, when 17 Navy sailors lost their lives in a terrorism act against the servicemen and women docked in Yemen. While al Qaeda claimed responsibility as the source of the bombing, Sudan’s material support for the terrorist organization, was a focus of civil suits holding the country responsible in the tragedy. As Sudan similarly did in the face of civil suits filed in the District Court for the District of Columbia, (tracing to the 1998 Embassy Bombings in Tanzania and Kenya also by al Qaeda), Sudan felt that the proper response was apparently to not respond at all.[i] Read More…
Wallace-Bey v. State – not everything she said he said was hearsay.
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.
Fourth Circuit adds to its line of cases on untimely criminal appeals.
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.
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…
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