Maryland Supreme Court to Consider New Rules Allowing For First Time, Full Citation For Persuasive Value to Most Unreported Opinions
By Michael Wein
For the first time, the Maryland Rules Committee has recommended Unreported Opinions in Maryland be cited for “persuasive value” under Maryland Rule 1-104. Part of the given Rule change’s rationale, was the Maryland Supreme Court does not consider itself as limited in citations, as at Maryland’s intermediate Appellate Court of Maryland. See Blog post dated 2/19/2020 discussing apparent contrary use of unreported opinions by Maryland Supreme Court. There remains some uncertainty as to the final version, as described below. This comes after a September 2022 Rules committee meeting, became publicly available about 2 weeks ago, as part of the 214th Report. The listed deadline for Comment to the Maryland Supreme Court is on March 1, 2023, with an open meeting scheduled for March 23, 2023.
The concerns about reforming Maryland’s Unreported Opinion Rule are long-running and also previously discussed in previous posts here (on recent Maryland Supreme Court decision), here (on 2015 Rules proposal to allow them on Case Search, but restricting their use from other jurisdictions for first time), and here (Rules Committee dropping 2015 restrictions after criticism). The Federal Courts got rid of any Local Rules with a prohibition against citations for persuasive value back on January 1, 2007. This present iteration, is the first time the Rules Committee has proposed doing away with the unreported opinion citation Rule.
However, with 15 years of Federal appellate Courts managing the Rule change, the Rules Committee, has chosen to not follow the Federal model of a simple removal of the prohibition as all Federal Circuit Courts of Appeal now have, with citations available online. Instead, like the 2015 version, the Maryland Rules Committee seems to exchange more transparency for “granting” unreported opinion citations, by creating a much more complex Rule in its place.
Read More…February 2023 Maryland Certiorari Grants
On Thursday February 23, 2023, the Supreme Court of Maryland granted review of one family law case. The certiorari grant, with links to the Appellate Court of Maryland opinion under review, are below.
Read More…Law on Imperfect Self-Defense is Still… Imperfect
Back in November 2016, less than two weeks before I left the Appellate Blog for a long foray as a Governor’s Office lawyer, I wrote my final post about the Court of Special Appeals’ decision in Porter v. State and the panel’s struggles with imperfect self-defense. How odd, then, that in my return more than six years later, the first split Appellate Court decision I come across is… a panel applying Porter and struggling with imperfect self-defense. With that coincidence, I guess I’ll just pick up where I left off.
To set the stage — when proven, imperfect self-defense negates the element of malice, which drops a murder charge to voluntary manslaughter. At least in Maryland, it comes into play when the perpetrator was not the “aggressor” and had the subjective beliefs, no matter how unreasonable, that:
- a potential assailant posed an imminent or immediate danger of serious bodily harm;
- the amount of force used to respond was necessary; and
- retreat was not safe.
To generate a jury instruction on imperfect self-defense, a defendant need only produce “some evidence” of these subjective beliefs.
Read More…Judges Don’t See it the Same on Speed, Stopping, and Suspicion
Of counsel, McAllister, DeTar, Showalter & Walker
Reasonable suspicion under the Fourth Amendment is a treadmill issue for appellate courts, and the constant churn of opinions usually involves judges’ different attempts to articulate what exactly is, and what should be, suspicious about human behavior. Those questions are far from easy. Every judge — every person, really — may have different thresholds about when something becomes reasonably suspicious.
The task often involves adding up a bunch of small details about a police encounter, each of which may be only a little bit suspicious, and determining whether they cross that varying threshold. A good case in point is the recent Snyder v. State, App. Ct. of Md., Sept. Term 2021, No. 1127 (Feb. 3, 2023), which suggests that strategy by the State may not always be effective. There, the State sought to satisfy the Fourth Amendment by throwing a bunch of suspicion spaghetti against the wall. Peeling it off one by one, the Appellate Court majority found it wasn’t enough — but there was one sticky noodle that triggered a dissent.
Read More…South Carolina Judge Confirmed to Fourth Circuit
Today, the U.S. Senate confirmed DeAndrea Benjamin to the U.S. Circuit Court of Appeals for the Fourth Circuit. Prior to her appointment she served as a trial judge for South Carolina.
Read More…Rereading Washington v. State after Tyre Nichols’ Homicide
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?
Read More…U.S. Supreme Court to decide whether mere mention of someone’s name during predicate offense constitutes aggravated identity theft.
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.
Read More…Unprovoked Flight, Reasonable Articulable Suspicion, and Article 26
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.
Read More…January 2023 Maryland Certiorari Grants
On Friday afternoon, the Supreme Court of Maryland granted review in one criminal and two civil appeals. The certiorari grants, with links to the Appellate Court of Maryland opinions under review, are below.
Read More…Introduction to Co-Managers of the Maryland Appellate Blog.
As the Maryland appellate courts have made historic changes with their official name changes, the Maryland Appellate Blog is excited to introduce its own updates with three new Co-Managers! Read more to learn more about each co-manager, their introduction to appellate law, and vision for the Blog.
Read More…
Maryland Appellate Blog 