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…
Appellate Documents of Officers Charged in Freddie Gray Death Published Online
By Michael Wein
In the past two weeks, some of the officers charged in the death of Freddie Gray have sought appellate and injunctive relief. Before officer Caesar Goodson was to go on trial last week, fellow officer William Porter, a potential witness in that case, challenged the trial court’s decision to — despite his own pending retrial after a hung jury — admit his testimony from that trial with use and derivative-use immunity in accordance with the U.S. Supreme Court’s decision in Kastigar v. United States, 406 U.S. 441 (1972). See also United States v. Oliver North, 910 F.2d 843 (D.C. Cir. 1990) (requiring full Kastigar hearing on use of non-immunized testimony and possible taint thereof). On January 12, Porter, proposing an expedited appellate schedule, had his request granted by the Court of Special Appeals, with abbreviated briefing and oral arguments in March.
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.
Head out to Arizona for some appellate fun in the sun!
By Steve Klepper (Twitter: @MDAppeal)
It finally happened… winter temperatures are upon us after a warm El Niño December. I’d like to invite all of the blog’s readers to attend the DRI Appellate Advocacy program in Scottsdale, Arizona this February 10–12 in Scottsdale, Arizona. Registration information is at this link, and you can download the brochure here.
Faculty will include three U.S. Court of Appeals judges and two state supreme court justices. The program will be repeating my favorite event from last time – a moot court, followed by a simulated post-argument conference among the panel.
There’s no better time to visit Arizona than the dead of winter,[*] and this great program is a perfect opportunity to get out there. I hope to see you there!
[*] Good weather not guaranteed. El Niño works in mysterious ways.
Court of Appeals latches onto State’s laches argument to limit availability of coram nobis relief
In Jones v. State, No. 16, Sept. Term 2015, 2015 WL 8109905 (Md. Dec. 7, 2015), the Court of Appeals of Maryland significantly limited defendants’ ability to challenge their convictions and sentences through a writ of error coram nobis many years after the fact. Up until now, there have been many instances in which individuals in Maryland have had prior convictions overturned years after the fact because of a constitutional or other significant error that was overlooked at the time of conviction. That run of post-conviction successes may well be largely over after Jones.
With Mitchell v. Maryland Motor Vehicle Admin., Hard Cases Still Make Bad Law
The aged judicial adage, that hard cases make bad law — or, at least, not so good law — continues to hold true after the decision of the Court of Special Appeals in Mitchell v. Maryland Motor Vehicle Administration, Sept. Term 2014, No. 713 (Nov. 25, 2015).[i] Mitchell concerned a vehicular license plate displaying the Spanish word “mierda,” which translates as “shit” or, in Yiddish, “kakn” (as in “that’s a kakn bull story”), all terms that are often a useful expletive or noun in circumstances on the road and off. As vital or valuable to expression as those words may be generally (and regardless of the domestic dialect or foreign language in which they are spoken), there is, no doubt, something troublesome about their being displayed in traffic. In grappling with the matter in Mitchell, the Court of Special Appeals at least arguably reached the right result but for reasons that unduly and impermissibly compromise First Amendment protections in other contexts.
December 2015 Maryland Certiorari Grants
The Court of Appeals website has posted certiorari grants from its December 2015 conference. We have a whopping 10 grants. And yet it brings us to a less-than-whopping total of 80 for the year. There were 90 total grants by this time last year. It’s possible that the Court of Appeals will add some extra cases to its September Term 2015 docket at next month’s conference. If so, however, it would be the first time since January 2012, before Chief Judge Barbera took the reins from Chief Judge Bell and committed to deciding cases by the end of the term in which they were argued.
The list of this month’s certiorari grants, with questions presented, appears after the jump. Read More…
Maryland Appellate Blog 