Fifteen Days to Go, and an Avalanche — 15 — Maryland Court of Appeals Cases Left to Decide!
By Michael Wein
Last year, with about one week to go before the Maryland Court of Appeals’ self-imposed deadline for deciding all cases in a September term by the following August, the Court had only four cases left to decide. Per the “Pending Cases” page on the Court of Appeals’ web site, with two weeks to go before this year’s deadline, 15 decisions are left to decide. Of these 15 cases, seven are civil, six are criminal, one is an Attorney Grievance matter (which the oral arguments indicate was, interestingly, remanded back to the trial judge for additional findings and re-argued in the same term), and one is a Bar application case.
COSA Dissent Watch: Post-mistrial Acquittals and Double Jeopardy
The case: State v. Johnson, Sept. Term 2015, No. 0189 (June 29, 2016)
The questions: Does a circuit court have fundamental jurisdiction to acquit a defendant after the grant of a mistrial? Does such an acquittal bar further prosecution even if court relies on evidence that is technically not before it?
COSA Dissent Watch: Questioning Police Officer Testimony and Bias in Voir Dire
The case: Lapole v. State, Sept. Term 2014, No. 2169 (June 27, 2016)
The questions: Can a voir dire question about bias regarding testimony of police officers reference other professions as well? Is the failure to properly give that question subject to harmless-error review?
COSA Dissent Watch: Defining a “Collection Agency”
[Dissents in the Court of Special Appeals are, as we’ve noted here before, an infrequent thing — but quite useful. Many times, disagreement in the intermediate court portends consideration and resolution by the Court of Appeals, or highlights thorny issues that appellate practitioners can take up in future cases. In this new feature, the Blog tracks and analyzes split decisions at the Court of Special Appeals.]
The case: Old Republic Ins. Co. v. Gordon, No. 1020 (Sept. Term 2014)
The question: Did the circuit court err in its construction of the phrase “collection agency” under BR § 7-101(c)?
The facts: Old Republic Insurance Company sold Countrywide Home Loans a “credit insurance policy,” pursuant to which Old Republic would pay for losses caused by defaults in loans held by Countrywide; in return, Countrywide would subrogate its rights of recovery to Old Republic. Countrywide submitted a claim for Nancy Gordon’s default on her approximately $70,000 loan, and Old Republic paid it. Old Republic then exercised its subrogation rights to pursue repayment.
The company filed suit in circuit court and moved for summary judgment. Ms. Gordon opposed the motion on the grounds that, under Maryland law, Old Republic was barred from bringing its claims because it was acting as a collection agency subject to the Maryland Collection Agency Licensing Act but wasn’t licensed to do so. The court agreed and granted summary judgment to Ms. Gordon.
Rationales on the way for per curiam orders in the cases of officers charged in death of Freddie Gray
By Michael Wein
On March 8, the Maryland Court of Appeals issued two per curiam orders, found here and here, in the cases of the police officers charged in the death of Freddie Gray — yet the reasons underlying the orders (which permitted the State to have Officer William Porter testify, prior to his own retrial, against all his fellow officers) remain a mystery. As reported in various media outlets, that became a problem for the trial judge last week when, based on the per curiam orders, he granted the State’s request to have another officer testify as a witness before his trial. The defense counsels reserved the right to reargue the matter after the high court provided its rationales for the orders.
Welcoming 2016—or is it really 1984?
When George Orwell published his novel “1984” in 1949, it presented many impossibilities of the future—computers and other artificial intelligence, Big Brother watching every person’s move, and all of the incredible trappings of science fiction stories that many of us enjoy as a break from reality. As the real 1984 approached, technology had not achieved the level imagined in the novel: Computers were huge and immovable; portable phones looked like bricks; and the internet was a newfangled system that few people used.
In Reversing Kulbicki v. State, How Did the U.S. Supreme Court Review the Record?
By Michael Wein
Last week, as noted by Blog Editor-in-Chief Steve Klepper, the U.S. Supreme Court issued a short four-page summary reversal of the Maryland Court of Appeals’ decision in Kulbicki v. State. The reversal followed three relists for the case at the end of the last term, a circumstance I covered in a post in June. Both posts noted a likelihood of some written decision being issued, either a summary reversal or an opinion regarding denial of certiorari.
One Week, Four Court of Appeals Cases, One Potential Blockbuster
By Michael Wein,
Well, we’re one week away until the Maryland Court of Appeals’ self-imposed deadline of Monday, August 31, 2015, for deciding all cases in the September Term. Per the “Pending Cases” page on the Court of Appeals’ website, four, count that, only four, decisions are left, one from April (State v. Dykes), one from May (State v. Waine), and two from June (State v. Westray and Wicomico County Department of Social Services v. B.A.). The two from June may not reflect any particular disagreements between the judges, but are pending simply because they were the most recently argued, or, in the case of Westray, because it will be decided in tandem with the Dykes case from April, as both involve issues about the right to discharge counsel. The “Questions Presented,” as posed on the Court of Appeals’ web page, for all remaining cases are listed below.
Fourth Circuit cell-site info decision creates circuit split
On August 5, a divided panel of the Fourth Circuit decided United States v. Graham, a Hobbs Act robbery case originating in the District of Maryland. Although the Appellants raised several challenges to their convictions, the most interesting issue was whether the Court should extend Fourth Amendment protections to records about where and when a mobile phone connected to antennas and electronic communications equipment on a cellular network, data called “cell-site location information” (CSLI). Senior Judge Andre Davis, one of the Fourth Circuit judges from Maryland, wrote the majority opinion, holding that users of cellphones have a reasonable expectation of privacy in historical CSLI, at least where such information covers an extensive period of time. Judge Davis was joined by Judge Thacker in that conclusion. One of the other Maryland judges on the Court, Judge Diana Motz, dissented from that portion of the majority opinion.
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.”
Maryland Appellate Blog 