One of the fundamental tenets of the United States Constitution is the freedom of speech, which includes the ability to air our grievances about government activities. Fane Lozman did just that in the City of Riviera Beach, Florida. During the public participation portion of a meeting held by the City Council, Mr. Lozman began to discuss the recent arrest of a former county official. After several requests to cease his remarks, the Council asked for the assistance of a police officer. When Mr. Lozman continued to refuse to cooperate, he was arrested for disorderly conduct and resisting arrest. Although later released, the posture of the case as it reached the Court required analysis of the principles related to lawful arrests in the context of the First Amendment prohibition against government retaliation when a person exercises his right to free speech. The decision issued by the Court in June in Lozman v. City of Riviera Beach, Florida, 585 U.S. ___ (2018), focused less on the public forum aspects of the case than on the probable cause for arrest and the possible retaliation of the Council.
Although its status as the intermediate appellate court may lead to skimming or skipping many of the decisions issued by the Court of Special Appeals, taking the time to review them can yield points of law that often go unnoticed. This blog post captures a few recent issues that might otherwise have escaped your attention (especially if you are a purist and focus only on the Court of Appeals or United States Supreme Court). The nuggets found in the intermediate appellate court deserve attention in modern law practice, because many days bring out-of-the-ordinary issues to our desks. Read More…
Last year, Winn-Dixie lost an ADA-compliance lawsuit—Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D.N.Y. 2017)—because blind individuals, who use screen readers to navigate websites, could not effectively use the supermarket chain’s website. Winn-Dixie, which has appealed the ruling, is not alone. In the last year, litigants have filed hundreds of website-accessibility lawsuits across the country. Hospitals, clinics, retailers, restaurants, credit unions, and universities have all been targeted. Read More…
The Maryland Court of Appeals granted four writs of certiorari today:
Wesley Cagle v. State of Maryland – Case No. 15, September Term, 2018
Issue – Criminal Procedure – Does a trial court err in precluding a criminal defendant from using trial testimony video in closing argument?
Karen McDonell v. Harford County Housing Agency – Case No. 16, September Term, 2018
Issues – Administrative Law – 1) Did Respondent err in terminating a voucher without affording procedural due process guaranteed under federal and MD administrative common law? 2) Does a MD charge of second degree assault constitute “violent criminal activity” and grounds for voucher termination? 3) Did Respondent err in interpreting its policy to require notice within two weeks of an unplanned and unforeseen absence from the housing rented with the voucher? 4) Is breach of a financial obligation that had been cured adequate grounds for voucher termination? 5) Did Respondent err in failing to explicitly consider all relevant facts before voucher termination?
State of Maryland v. Brandon Payton – Case No. 14, September Term, 2018
Issues – Criminal Law – 1) Where Respondent made specific objections to reopening the State’s case for more fingerprint-expert testimony only on the grounds that the additional fingerprint testimony would be the last thing that the jury would hear and that it would be presented in isolation, were defense counsel’s claims that reopening would be “unfair” and “extremely prejudicial” or the trial court’s statement that the reopening could “very well … be grounds for appeal” sufficient to preserve a judicial-partiality claim? 2) Did CSA err in concluding that the trial court abused its discretion in reopening the State’s case sua sponte? 3) Where the reopening of the State’s case was based on the trial court’s incorrect assumption that there had been no testimony linking Respondent to the handprint, was any error harmless beyond a reasonable doubt because the testimony was cumulative of the testimony of three prior witnesses linking Respondent to the handprint?
Craig Williams v. State of Maryland – Case No. 13, September Term, 2018
Issue – Criminal Procedure – Did the trial court abuse its discretion in denying a motion for new trial where the court gave a pattern jury instruction and, after the jury rendered its verdict, the court, prosecution, and defense all acknowledged that the instruction erroneously omitted an element of the offense for which the defendant was convicted?
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…
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).
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…
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…
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.
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…