An Excellent New Resource on the 1867 Maryland Constitutional Convention
Baltimore attorney John J. Connolly, a prolific writer, has self-published an invaluable volume, Republican Press at a Democratic Convention: Reports of the 1867 Maryland Constitutional Convention.
Connolly, who annotates the 1867 reports published by the Baltimore American and Commercial Advertiser, begins with this commentary: Read More…
May 2018 Maryland Certiorari Grants
The Maryland Court of Appeals granted four writs of certiorari today:
Wesley Cagle v. State of Maryland – Case No. 15, September Term, 2018
(Reported CSA Opinion by Shaw Geter, J.)
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
(Unreported CSA Opinion by Shaw Geter, J.)
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
(Reported CSA Opinion by Beachley, J.)
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
(Unreported CSA Opinion by Beachley, J.)
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?
The Democracy Canon and the Oaks Ballot Dispute
By Steve Klepper (Twitter: @MDAppeal)[*]
The Maryland high court is about to hear, on emergency briefing, the appeal in Lamone v. Lewin. The administrator of the State Board of Elections is challenging the April 26 injunction requiring that former state senator Nathaniel Oaks’ name be removed from the June primary ballot.
The Court granted certiorari on Friday. The parties filed opening briefs on Monday and reply briefs on Tuesday, with arguments Wednesday. The briefs are available here.
The briefing is superb on both sides. Julia Doyle Bernhardt and Andrea Trento, with the Office of the Attorney General, and Mark Sitchel and Elizabeth Harlan, representing the challengers, did top-flight work on a frantic schedule. The quality of briefing should make the Court’s job easier, but the ultimate choice is a difficult one. Read More…
Update: The End of Frye-Reed Draws Closer
In my lengthy October 2017 post, The End of Frye-Reed, I traced the history of Maryland’s Frye-Reed jurisprudence on expert testimony and explained my view that Frye-Reed is now “on its last legs.” A recent published Court of Special Appeals opinion, Sissoko v. State,[1] suggests that Frye-Reed’s death has drawn even closer. It notes Maryland’s “drift” towards applying Frye-Reed to scientific conclusions, rather than only techniques, and treats the Frye-Reed and Rule 5-702 inquiries as tests that not only “overlap” but perhaps have even “melded into one.”[2] In doing so, the opinion elevates, from well-considered dicta to controlling Maryland law, many points in the concurring opinion in the Court of Appeals’ August 2017 decision Savage v. State.[3]
The analysis in my original post ended with Savage v. State, which is proving itself to be a landmark opinion. Read More…
Court of Appeals to review injunction removing Oaks from primary ballot
The Court of Appeals today granted a petition for certiorari by the administrator of the State Board of Elections, who is challenging yesterday’s injunction requiring that former state senator Nathaniel Oaks’ name be removed from the June primary ballot. Heather Coburn has been covering the case at The Daily Record. The Court of Appeals has scheduled argument this coming Wednesday, May 2. Read More…
Two Fourth Circuit Nominations in One Day
By Steve Klepper (Twitter: @MDAppeal)
Jane, get me off this crazy thing… called legal news. It’s not even 2:30 p.m., and already the Southern District of New York has appointed a special master to review documents seized from Michael Cohen, and Bill Cosby was convicted on retrial.
It’s actually below-the-fold legal news that that the White House today announced the Administration’s thirteenth wave of judicial nominees, which includes two nominees to the Fourth Circuit. Both would presumably maintain their chambers in South Carolina. Still, if they’re confirmed, you could check in at 8:30 a.m. in Richmond some morning to discover that either or both is on your panel. Read More…
Oral Argument in Benisek v. Lamone: An Alleged Wrong Without a Remedy, Regardless?
The Supreme Court’s most pressing dilemma today is, arguably, the choice between heeding constitutional and practical considerations of justiciability, on the one hand, and, on the other, applying constitutional cures for the evident dysfunction by which partisan redistricting has defiled electoral processes and our democracy. The views of the majority of the electorate on several major policy issues facing this country are demonstrably out of line with the current holders of power in Congress and the Presidency, gun control and health care, being, perhaps, the best examples of this.
In other matters involving the integrity of the electoral process, the Court has often not cowed at confronting the dilemma. See, e.g., Citizens United v. FEC, 558 U.S. 310 (2010); Elrod v. Burns, 427 U.S. 347 (1976); Buckley v. Valeo, 424 U.S. 1 (1976); Reynolds v. Sims, 377 U.S. 533 (1964) and Baker v. Carr, 369 U.S. 186 (1962). The institutional risk, still, to federal courts is their supplanting state legislatures in a function that the Constitution expressly assigns to those bodies and the assumption of that function’s burdens by a judiciary ill-equipped, ill-informed and ill-positioned to perform it.
Most recently, the Court recurred to the problem of reviewing redistricting challenges in last month’s oral argument in Benisek v. Lamone, 2017 U.S. Dist. LEXIS 136208 (D. Md. Aug. 24, 2017), appeal docketed, No. 17-333 (U.S. Sept. 1, 2017). Read More…
The #MeToo Movement and Arbitration Clauses
By Ayesha N. Khan, Guest Contributor[i]
Unless you have been living under a rock, you know that the #MeToo movement has seized the cultural zeitgeist. Thousands of women have come forward to tell their stories and many powerful people have lost their positions on the heels of serious accusations. The entertainment industry, the political sphere, corporate boardrooms, and the judiciary have all been affected.
One corporation that has felt the heat is the ridesharing company Uber. After employee Susan Fowler sparked an uproar with allegations of sexual harassment and gender discrimination, an internal investigation led to more than 200 employee complaints and 20 terminations. Fowler will presumably sue Uber, but it remains to be seen whether she will join forces with others in doing so because, like many employers, Uber requires employees to sign a contract that commits them to resolving disputes through private, individual arbitration.
In a trio of consolidated cases – Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP v. Morris, No. 16-300; and NLRB v. Murphy Oil USA, Inc., No. 16-307 – the U.S. Supreme Court is poised to address whether provisions like the one in Fowler’s employment contract will be given effect. The decision may have a greater impact on businesses and their employees than any other decision this term. Read More…
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…
April 2018 Maryland Certiorari Grants
The Maryland Court of Appeals granted five writs of certiorari today:
Rodney Lee Agnew v. State of Maryland – Case No. 9, September Term, 2018
(Unreported CSA Opinion by Graeff, J.)
Issues – Criminal Law –Was a recorded communication on a cell phone between Petitioner and an unidentified speaker intercepted in violation of the Md. Wiretap Statute and erroneously admitted at trial when there was no enumerated exception for its admissibility?
Read More…
Maryland Appellate Blog 