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…Court of Special Appeals to Disclose Panels 7-10 Days Before Argument
By Steve Klepper (Twitter: @MDAppeal)
Until now, the Maryland Court of Special Appeals (like the Fourth Circuit) has not disclosed the identities of the three judges hearing an appeal until the morning of argument. That is changing, beginning next month.
According to the Court’s May 2019 schedule:
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This change comes just four months after Chief Judge Matt Fader took the reins at the Court of Special Appeals.
The timing of panel disclosure means that briefing will have closed by the time the parties learn which judges will be hearing their cases. Without leave of court, replies must be filed at least ten days before argument, under Rule 8-502(b).
Introducing the Applicants for the Court of Appeals and Court of Special Appeals: August 2018
Three vacancies on Maryland’s appellate courts, arising from the forthcoming retirements of Judge Sally D. Adkins of the Court of Appeals (1st Appellate Judicial Circuit, covering the Eastern Shore), Chief Judge Patrick L. Woodward of the Court of Special Appeals (Montgomery County), and Judge Deborah Sweet Eyler of the Court of Special Appeals (At Large), collectively drew 27 applicants, whose names were published this afternoon.
Thank You for Writing Dissents
By Steve Klepper (Twitter: @MDAppeal)
At this year’s bar convention, I took the opportunity to thank Senior Judge Irma Raker for something she did 12 years ago. When I lost the first Court of Appeals case that I argued, Judge Raker wrote a short solo dissent. It meant a lot to me as a young associate, having entered argument feeling like I would win, to know I’d convinced at least one judge.
There are a many different reasons why appellate judges write dissents or refrain from writing them. From a private practitioner’s standpoint, I tell judges that dissents are a powerful way to improve attorney-client relationships. Read More…
Adnan Syed entitled to new trial, Court of Special Appeals affirms. What’s next?
By Steve Klepper (Twitter: @MDAppeal)[*]
The Court of Special Appeals of Maryland has issued its decision in Adnan Syed v. State of Maryland. The opinion, affirming that Syed is entitled to a new trial, is available here.
So what’s next? Read More…
COSA Spotlight: Judge Stuart Berger
By Steve Klepper (Twitter: @MDAppeal)
This post kicks off a series of profiles of the judges of the Court of Special Appeals. Our guinea pig for this series is Judge Stuart R. Berger, who holds one of the Court’s eight at-large seats. I interviewed him at his Baltimore City chambers. Read More…
14 Nominated for Court of Special Appeals: June 2017
Governor Hogan will be picking from 14 candidates to fill the at-large seat on the Court of Special Appeals vacated by the recent retirement of Chief Judge Peter B. Krauser. The nominations were announced last week and were chosen from an impressive list of lawyers and judges who applied in April. Eight of the candidates were automatically advanced because they had been previously recommended for the Court by the Judicial Appellate Nominating Commission. Five of the nominees are sitting circuit court judges.
Adnan Syed and How to Solve the Court of Special Appeals Public-Access Problem
By Michael Wein
The Maryland judiciary website posted last Wednesday about the Syed case guidelines for the public and news media interested in attending oral arguments. As noted in the detailed order by new Chief Judge Patrick Woodward, oral arguments are being held in Courtroom 1 on the second floor of the Courts of Appeal Building in Annapolis (the larger of the two courtrooms regularly used by the Court of Special Appeals). Courthouse security is taking significant protections against recording devices, and limited seating is being provided to the public and media.
This post is not about the Syed case, specifically. But the circumstances of the Syed oral arguments expose a lack of proper public access to any of the intermediate appellate court’s oral arguments, in noted contrast with the Court of Appeals.[1] Syed is quite obviously a highlighted, media-interest case, which poses an opportunity to discuss what procedures Maryland’s intermediate appellate court should consider, in at least the future, to accommodate public interest in specific, important oral arguments.
COSA Dissent Watch: Circumstantial evidence of lead paint in the post-Rowhouses world
The case: Murphy v. Ellison, Sept. Term 2015, No. 0822 (Aug. 23, 2016) (unreported)
The questions: Can a plaintiff in a lead-paint case establish a property as a reasonably probable source of exposure without expert testimony or inspections of the property? Can the age of a house or its components establish that the property probably had lead paint? Can evidence of lead paint on the exterior of a home be evidence of lead paint on the interior?
COSA Dissent Watch: Marijuana Odors and Pat-Downs
The case: Norman v. State, Sept. Term 2015, No. 1408 (Aug. 11, 2016)
The questions: Was the odor of marijuana effectively the only justification for a police officer’s alleged belief that a passenger in a vehicle was armed and dangerous? If so, is that belief reasonable for the purposes of the Fourth Amendment?
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