Kulbicki Still Awaiting Supreme Court Cert Decision
By Michael Wein
The Maryland case of Kulbicki v. State, involving the post-conviction relief appropriate for those convicted with help from the now thoroughly discredited FBI “comparative bullet lead analysis” (“CBLA”), was one of the “blockbuster” cases of last year, as noted by fellow Blog editor Brad McCullough in a post discussing how the case unexpectedly did not decide larger issues and by myself on a list of some of the “longest pending cases” in the 2013-2014 Term (Kulbicki being the longest). The 4-3 Court of Appeals decision and majority opinion by Judge Lynne Battaglia, instead of dealing with potentially more sweeping issues that could have also been addressed in the case, concentrated more narrowly on Kulbicki’s entitlement to a post-conviction remedy under a regular ineffective-assistance-of-counsel analysis, despite that potential error not being earlier presented in the certiorari petition. As Judge Robert McDonald’s dissent noted, the case “reverses Mr. Kulbicki’s conviction on the basis that his trial counsel failed to anticipate [that CBLA would one day be deemed inadmissible] and thereby provided ineffective assistance of counsel in their cross-examination of the prosecution’s CBLA forensic expert – a ground not briefed by either party in this appeal and not among the questions on which we granted the writ of certiorari in this case.”
A Possible Shift in Establishing a Hostile Work Environment
In many respects, the en banc decision of the U.S. Court of Appeals for the Fourth Circuit in Boyer-Liberto v. Fontainebleau Corp., No. 13-1473 (May 7, 2015), presents a series of unfortunate events.* The Court used a relaxed standard for an employee to assert a claim for hostile work environment that could have a significant impact on employers.
Fourth Circuit airs internal dispute about whether to criticize the Government’s appellate litigating position
The Fourth Circuit issued an unusual published sealing order last week in United States v. Adams, a case from the District of Maryland in which the named defendant and more than 20 others were charged under RICO for their alleged roles in the “Dead Man Incorporated” (DMI) gang. Adams, in particular, was alleged to have conspired to murder several people and to have participated in several such murders. Much of the record is sealed, but we do know that Adams entered a guilty plea in the district court, although it is not clear to what charge or charges. According to the docketing statement that Adams’ first appellate attorney filed, Adams was sentenced on May 3, 2013, and noted a timely appeal on May 14, 2013.
Rough Justice Is Not Simple Justice: Fourth Circuit Guts Wal-Mart v. Dukes and Creates Circuit Split by Ordering Title VII Claims Certified as Rule 23(b)(3) Class
Judges want to do justice in all cases. In civil-rights cases, they overwhelmingly want to promote equal opportunity and fight racial injustice in America. Title VII employment discrimination cases often provide them with that opportunity. Workers who present persuasive evidence that they were harassed or denied promotions because of their race often find sympathetic jurors and judges who are eager to faithfully enforce fair-employment laws.
Sublet v. State: It is what it is… or is it?
One of the more ubiquitous idiomatic phrases used in recent years has been, “It is what it is.” In three consolidated cases decided last month by the Court of Appeals of Maryland, the Court turned that phrase around and focused on the question, “Is it what it is?” – or, more precisely, “Is it what it says it is?” On April 23, 2015, Judge Battaglia issued the Majority’s opinion in Sublet v. State, Sept. Term 2014, No. 42; Harris v. State, Sept. Term 2014, No. 59; and Monge-Martinez v. State, Sept. Term 2014, No. 60.[1] The cases concerned the authentication of information derived from social media, required the Court to expand on its four-year-old decision in Griffin v. State, 419 Md. 343 (2011), and inquired whether three trial judges had suitably answered whether the proffered social media “was what it says it was.” As part of that inquiry, the Court of Appeals adopted a standard to be used by trial judges in resolving the authentication issue. But, as will be discussed, the standard chosen by the Court presents yet another question: what standard of appellate review should be employed in assessing a trial court’s decision on authenticity?
The Full Fourth Circuit Should Grant Rehearing on the “Intrinsic Evidence” Doctrine
By Steve Klepper (Twitter: @MDAppeal)
On May 11, the Fourth Circuit published its opinion in United States v. Bajoghli, which held that a Virginia district judge abused his discretion in excluding evidence of acts that were either deleted from an indictment for healthcare fraud or that took place after the scheme was alleged to have ended. In the process, Bajoghli took an extreme view of the doctrine of evidence that is “intrinsic” to an indictment. If the defendant petitions for en banc review, the full Fourth Circuit should take the opportunity to cabin or abandon the “intrinsic evidence” doctrine. Read More…
Fourth Circuit applies “gist of the action doctrine,” avoids slippery slope of Rule 15
A century ago, pleading causes of action presented many traps for the unwary; entire cases could collapse over minor imperfections or pleading errors. Such rigid formalism ended in 1938 with enactment of the modern Federal Rules of Civil Procedure. Specifically, Rules 8 and 15 provide much more liberal standards for pleading and amending causes of action, even allowing some plaintiffs to amend their complaints after their trials have ended. But, as the Fourth Circuit recently reminded practitioners in Dan Ryan Builders, Inc. v. Crystal Ridge Development, Inc., No. 13-2234, — F.3d —-, (4th Cir. April 20, 2015), Rule 15’s capacity to accommodate pleading errors has its limits.
Espina v. Jackson: Marbury v. Madison Revisited?
In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall laid the cornerstone for this country’s view of judicial power, particularly as it relates to the powers of correspondent branches of government, in the case of the federal government, Congress and the President. There, in deciding whether the U.S. Supreme Court had jurisdiction to consider William Marbury’s petition to compel Secretary of State James Madison’s delivery of Marbury’s judicial commission by John Adams, Marshall’s opinion held that Madison’s withholding the commission was illegal. Sidestepping a confrontation with the executive branch, however, Marshall held that Marbury’s petition was not within the Court’s jurisdiction and denied it. Marshall ruled that the Judiciary Act of 1789, under which Marbury had brought his action, unconstitutionally expanded the Court’s Article III original jurisdiction, observing as a seeming aside that
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
5 U.S. at 177-78.
Final Judgments — An Ongoing Dilemma
Other than failing to preserve an issue or note an objection at the proper time, one of the main causes of paranoia in appellate practitioners is the need for a final judgment. During the past 20 years, the appellate courts have routinely admonished litigators that they must have a final judgment to obtain appellate review. The simplest final judgment occurs when a case has been tried and a jury rendered its verdict. In other situations, many of us refer to the Maryland Code to identify the status of a case — does it resolve all of the issues? Are the parties “out of court”? Does the case satisfy the criteria for an interlocutory appeal? Is it a collateral order?
Rules Committee to Recommend Putting Maryland Unreported Opinions Online, But Expanding Restrictions on Use of Other Unreported Decisions
By Michael Wein
As detailed in a previous post of mine from February, the underpinnings of unreported opinions differ substantially in Maryland from those in other state and federal courts. I argued that having about 90 percent of appellate opinions from the Court of Special Appeals not available online seemed at odds with the Judiciary’s stated goal of being accessible to the public. To help remedy this, the Maryland Daily Record has begun publishing unreported opinions for subscribers, making it easier for attorneys to understand the appellate courts.
Maryland Appellate Blog 