4-3 Reversal Over Violation of Right to Counsel, both under the Sixth Amendment and Articles 21 and 24
Clark v. State (No. 25. September Term 2022, opinion by Honorable Shirley M. Watts), decided on the last day of the term, is unusual and remarkable. This 132-page, 4-3 opinion is really a 4-4-3-3 decision which includes a majority opinion by Justice Watts, joined by Justices Hotten, Biran, and Eaves, a concurring opinion by Justice Biran joined by the same Justices as the majority (Justices Watts, Hotten, and Eaves), a first dissenting opinion by Chief Justice Fader joined by Justices Gould and Booth, and a second dissenting opinion by Justice Gould, joined by Chief Justice Fader and Justice Booth. The majority opinion is remarkable because it holds that defense counsel’s failure to object to the trial court’s improper order prohibiting a testifying defendant from communicating with counsel during an overnight recess resulted in the actual denial of the Sixth Amendment right to the effective assistance of counsel and the right to counsel under Article 21 and 24 of the Maryland Declaration of Rights.
Of particular note is Justice Biran’s concurring opinion regarding the Maryland Declaration of Rights. He writes: “[t]he right to counsel is arguably the most important right enshrined in the Maryland’s Constitution. I expect that, when the Supreme Court eventually decides whether the Sixth Amendment provides the same amount of protection as Article 21 and Article 24 do in this context, it will answer in the affirmative. But if I am wrong about that, then I will be proud that Maryland provides a more robust right to counsel in this context under Article 21 and Article 24.” There is indeed a lot to be proud about in the majority and concurring opinions.
Read More…Sex Offense Trials: The Path Forward for CJP § 10-923
This summer, the Maryland Supreme Court decided Woodlin v. State, No. 22, Sept. Term, 2022 (July 26, 2023) (opinion by Eaves, J.), the first opinion interpreting Maryland’s Repeat Sexual Predator Prevention Act of 2018, Courts and Judicial Proceedings Article (“CJP”) § 10-923.
Read More…2023 and the Summer of Daubert
The summer of 2023 brought us more than sunshine and cookouts. Each month this summer, the Supreme Court of Maryland handed down a major decision on Rule 5-702 and the Daubert/Rochkind standard for admissibility of expert testimony. June gave us Abruquah v. State, No. 10 (June 20, 2023). July gave us Oglesby v. Baltimore School Associates, No. 26 (July 26, 2023), and August 31, the last day of the 2022 term, brought us Katz, Abosch, Windesheim, Gershman& Freedman, P.A. v. Parkway Neuroscience and Spine Institute, LLC, No. 30 (Aug. 31, 2023). These opinions join the prior term’s lone high-court decision on the same issue, State v. Matthews, 479 Md. 278 (2022), giving us a total of four post-Rochkind Supreme Court precedents reviewing trial-court applications of the Daubert/Rochkind standard. See Rochkind v. Stevenson, 471 Md. 1 (2020). The 296 combined pages of opinions, concurrences, and dissents from this summer’s trilogy will be cited for decades to come in cases applying Rule 5-702. Each case addressed whether the expert’s challenged opinion had a sufficient factual basis under subsection (3) of Rule 5-702, which includes the inquiry into whether there exists an impermissible analytical gap between the expert’s methodology and conclusion.
Read More…Representation and Colorblindness in Maryland’s Appellate Courts
Among the most high-profile decisions issued by the United States Supreme Court last month was the conservative majority’s long-anticipated 6-3 opinion ending race-conscious admissions in virtually all public and private colleges. Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 143 S. Ct. 2141 (June 29, 2023). It did so on the grounds that the Fourteenth Amendment’s Equal Protection Clause mandates colorblindness when admitting or rejecting potential students. Drawing on Justice Harlan’s lone dissent in Plessy v. Ferguson (1898), the majority opinion (and concurrences) repeatedly emphasized that, although much of American society attributes meaning to racial identity and diversity, seventy years of Supreme Court jurisprudence has established—as a bedrock principle—a colorblind Constitution.
Read More…Zadeh v. State: Timeliness, Motion to Suppress, and Voluntariness
In Zadeh v. State (No. 11, Sept. Term 2022, Opinion by Hon. Andrea M. Leahy), the Appellate Court of Maryland (ACM) remanded the case – yet again – because the trial court failed to instruct the jury on the voluntariness of Zadeh’s statement to police. Before reaching the merits, the ACM addressed the important question of the time requirement for filing motions to suppress on remand.
Brief Summary of Facts and First Reversal: On August 4, 2014, Takoma Park Police responded to a call reporting that a woman, Larlane Pannell-Brown, was screaming at her house. When the police arrived, they found her husband, face down, bleeding from trauma to his head. However, police were unconvinced by Ms. Pannell-Brown’s screams once they discovered that she was having an affair with Hussain Ali Zadeh, a man 20 years her junior. In the first trial, Zadeh was jointly tried with Pannell-Brown, and both were convicted of second-degree murder and sentenced to 30 years in prison. However, the Supreme Court of Maryland reversed Zadeh’s conviction because he was unfairly prejudiced by non-mutually admissible evidence at the joint trial. State v. Zadeh, 468 Md. 124, 163-64 (2020).
Read More…Abruquah v. State debates abuse of discretion under Rule 5-702.
The Supreme Court of Maryland’s recent 4-3 decision in Abruquah v. State takes a strict view of the admissibility of firearms identification testimony under Rule 5-702. (Sept. 2022 Term, Case No. 10) (decided June 20, 2023). The decision raises complex questions about whether defendants can retroactively challenge criminal convictions that were supported by such testimony. But I will leave that issue to others. Here, I want to focus on the Justices’ vigorous debate over the abuse-of-discretion standard under Rule 5-702.
Read More…In Zadnik v. Ambinder, the Appellate Court revisits the Dead Man’s Statute and Choice of Law Issues.
In Zadnik v. Ambinder, ___ Md. App. ___ (2023), the Appellate Court recently reviewed whether a trial court should have recognized a common law marriage from Pennsylvania, so to give the plaintiff standing to bring a wrongful death lawsuit in Maryland. The opinion offers key lessons for appellate and trial practitioners, in choice of law, the dead man’s statute, and preservation.
Read More…The Right to Fair and Impartial Judges on Appeal: Belton
By: Isabelle Raquin
Last week, the Supreme Court of Maryland issued the much-anticipated decision concerning appellate impartiality in Belton v. State, No. 8, September Term 2022.
Who knew that, when this case was appealed to the Appellate Court of Maryland on a single, straightforward question regarding hearsay and self-defense, and submitted on briefs, it would turn into a matter of first impression in the Supreme Court implicating the right to fair and impartial judges on appeal?
Read More…Must See Appellate Panels at MSBA Legal Summit 2023
By: Meaghan Murphy
If you’re attending the MSBA Annual Summit this week in Ocean City, we hope you’ll stop by three panels sponsored or co-sponsored by the MSBA Section of Litigation’s Appellate Practice Committee.
Thursday, June 8, at 1:30 p.m.
You’ve Filed an Appeal – Now What???
(Room 209, co-sponsored with the Litigation Section)
The Hon. Gregory E. Wells (Chief Judge, Appellate Court of Maryland) will offer a behind-the-scenes view of the appellate process, joined by members of the ADR Court Staff and experienced appellate practitioners, including:
- Crystal Curry
- Andrew Fontanella
- Kathryn (Katie) Huff
- Faten Gharib
- and the Maryland Appellate Blog’s own Steven M. Klepper
Mental Illness and Maryland’s Toothless Review of Criminal Sentences
By Steve Klepper (Twitter: @MDAppeal)
Not many unreported opinions of the Appellate Court of Maryland receive coverage in the Washington Post. But Thursday’s edition included an article by Justin Jouvenal on the new unreported opinion in Alain Jean Marie Robbins v. State. I urge you to read the opinion—authored by Judge Nazarian and joined by Judges Berger and Leahy—particularly pages 26 to 29.
Reluctantly affirming the second-degree assault convictions of a woman who kicked deputies while in an acute mental health crisis, the Court wrote that in our “admittedly gratuitous appellate opinion, Ms. Robbins was grossly over-charged, over-prosecuted, and over-sentenced when what she really needed was help.” Although the sentence was “suspended save for time served,” the defendant “still has five consecutive five-year suspended sentences hanging over her head and, although currently at liberty, she stands one non-technical probation violation away from exposure to a quarter-century in prison.”
This opinion hit hard, especially when I later learned of the heartbreaking testimony by the defendant’s teenage son at sentencing.
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Maryland Appellate Blog 