Court of Appeals to hear arguments of officers charged in Freddie Gray death
By Michael Wein
As previous Blog posts of January 19, February 12, and February 22 indicated would occur, expeditious Court of Appeals of Maryland arguments in the prosecution of the officers charged in Freddie Gray’s death will occur today, and are available for view by webcast. Officer William Porter initially sought relief in the appellate courts after being ordered by the trial judge to give testimony, pending his retrial, in the cases of Officers Caesar Goodwin and Alicia White, and was previously designated by the Court of Special Appeals, pursuant to Md. Rule 8-111, as the appellant in the case. Notably, after that court consolidated the appeal with those of Officers Goodwin and White, there was some disagreement about the correct caption and confusion as to whether it was appropriate to call them “Respondents” in the Court of Appeals. In any case, the four oral arguments to be heard today will address legal issues related to the cases of all six officers charged in Mr. Gray’s death.
February 2016 Maryland Certiorari Grants
For those staying on top of the prosecutions of the police officers implicated in the death of Freddie Gray — which Michael Wein has been covering for the Blog — last week was a big development, as the Maryland Court of Appeals postponed their trials to consider (assuming the issue is even properly appealed at all) whether defendant William Porter can be compelled to testify in those trials if his testimony won’t be used in his own upcoming retrial. As the story has been reported pretty much everywhere, we won’t recount all the details here; instead, we’ll note that, the day after the Court’s decisions, it released a bunch of other certiorari grants spanning some noteworthy issues. Check them out after the jump.
Preservation Overrides the First Amendment
The First Amendment to the U.S. Constitution protects a tapestry of expression in our society, including speech, association, art, dance, attire, and music. Few exceptions exist, and when they do they are extreme—obscenity and incitement to riot are never protected, although the line does not always appear to be bright and clear. The Court of Special Appeals recently reminded us of a much simpler exception to the protection in Thana v. Board of License Commissioners for Charles County, Ct. Spec. App., Sept. Term 2014, No. 1981 (January 29, 2016): when the First Amendment issue is not preserved for appellate review.
This is a job for Chief Justice Roberts, judicial statesman
By Steve Klepper (Twitter: @MDAppeal)
February 13 was likely the worst day for Chief Justice Roberts since he joined the Court in 2005. He lost a good friend. He lost an ally. These developments would be awful at any time. The timing, however, turned Justice Scalia’s death into a challenge to the Chief Justice’s quest to preserve the Court’s institutional integrity. Roberts is a student of history, however, and there is precedent for him to take action to defend the judiciary. Read More…
State Seeks Stay and Certiorari in Remaining Freddie Gray Prosecutions
By Michael Wein
In my January 19 post about the online Court of Special Appeals documents for the prosecution of the officers charged in Freddie Gray’s death, I indicated that, as an inherently “cert-worthy” case, it would not be surprising if one of the parties sought certiorari and it ended up in the Court of Appeals. On Wednesday, that happened, as the Attorney General’s Office sought, in multiple filings (as seen on the Court of Appeal’s “Highlighted Cases” page), expedited review and a ruling that would apply in the prosecutions of the other five officers as to whether the Supreme Court’s opinion in Kastigar v. United States and Md. Code, Cts. & Jud. Proc. § 9-123 allow or prevent the admission of fellow officer William Porter’s previous testimony from his mistrial given that he will be tried again. Also at issue is the authority of the trial judge to refuse to stay three of the officers’ cases after making a pretrial evidentiary ruling relying on the State’s representation that Officer Porter’s testimony was not necessary.
Five Apply for Prince George’s County COSA Seat
The applicants for Judge Hotten’s former spot on the Court of Special Appeals have been announced, and, with five total, there is about 80 percent less interest than the at-large seat that 27 bench-seekers vied for in October. Granted, Judge Hotten’s position is limited to those living in Prince George’s County — which is not a place that seems to generate many appellate aspirants as of late. But the timing does give three of the county’s circuit court judges a chance to double-dip in the appointment process.
Spoliation of the Physical Subject of the Case Can Lose It
When we hear the word “spoliation,” we tend to think about the loss of electronically stored information, such as e-mail messages or other computer generated data. That’s because the loss of that type of evidence, and the drastic sanctions that result, is highlighted and seared into our consciousness by legal-news services. But earlier this week the Court of Special Appeals decided a spoliation case that concerned the destruction of a physical object – a house – that was “itself the subject of the case.” Cumberland Ins. Group v. Delmarva Power, No. 72 Sept. Term 2015, Slip Op. at 8 (Feb. 1, 2016). Balancing the fault of the destroying party with the level of prejudice suffered by the other party, the Court held that spoliation had occurred, that sanctions were warranted, and that the circuit court had not abused its discretion by granting summary judgment in favor of the prejudiced litigant.
A Quick Correction on State v. Adnan Syed
By Steve Klepper
You may have seen a piece in the New York Times that quoted me on the State v. Adnan Syed case. The quotations, which the reporter read back to me on the phone, were correct. But a paraphrase that preceded those direct quotations conveys an incorrect impression of what I was saying. That paraphrase has now been repeated many times on Twitter and attributed to me as a direct quote.
Because the New York Times article identified me as the editor-in-chief of the Maryland Appellate Blog, I have spoken with the editorial board, which has agreed to allow me to post my letter to the reporter. A link to the letter is here.
January 2016 Maryland Certiorari Grants
Last month we noted that the Court of Appeals had only granted 80 certiorari petitions for its September 2015 Term, meaning either: (1) that the Court of Appeals would hear dramatically fewer cases this term, or (2) that, in a break from the recent past, it would schedule January grants for argument this term rather than hold them for the September 2016 Term. The Court of Appeals chose Door #2 with a vengeance, today granting 14 petitions and assigning all of them to its September 2015 Term docket.
In likely the biggest news out of today’s orders, the Court of Appeals will address the effect of evidence undermining Comparative Bullet Lead Analysis testimony. The full list of grants, with questions presented, appears after the jump.
Judging Taney: A Response to Josh Blackman
By Steve Klepper (Twitter: @MDAppeal)
As Josh Blackman has covered at his blog, a Baltimore City commission has recommended removing the statue of Chief Justice Roger Taney from the city’s Mount Vernon neighborhood.
This event calls to mind an exchange I had with a then-professor at Goucher College in 1994. When he expressed sarcastic pride that a Marylander, Taney, wrote the Dred Scott decision,[1] I asked, “Wasn’t Taney otherwise considered a great justice?” He shot back: “How was the play, Mrs. Lincoln?” Point taken.
I favor removing the statue, but we should ask serious questions before cutting symbolic ties with Taney. Read More…
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