COSA Dissent Watch: Plea Bargains That Ignore Mandatory Probation
The case: Crawley v. State, Sept. Term 2013, No. 0467 (Aug. 8, 2016)
The questions: If a plea agreement would be invalid without the inclusion of probation, is probation an implied term of the agreement? If a plea agreement is invalid because it provides for an illegal sentence, can a trial court, sua sponte, increase the sentence to make it legal? If a plea agreement is invalid for failure to include probation, is a defendant’s renegotiation of the plea limited to the addition of probation, or can he renegotiate the entire agreement?
“A Case About Nothing”: Ireton v. Chambers
If the iconic 1990s television comedy series “Seinfeld” was a show about nothing, then a recent decision of the Court of Special Appeals was – in the words of Judge Kevin Arthur – “a case about nothing.” Ireton v. Chambers, No. 1038, Sept. Term 2105, slip op. at 1 (July 28, 2016). But while the case might have been “about nothing,” the litigants disagreed about nearly everything, including what exactly the court was reviewing, what standard of review the court should employ, and how a statute granting qualified immunity to municipal officials should be interpreted.
COSA Dissent Watch: Post-mistrial Acquittals and Double Jeopardy
The case: State v. Johnson, Sept. Term 2015, No. 0189 (June 29, 2016)
The questions: Does a circuit court have fundamental jurisdiction to acquit a defendant after the grant of a mistrial? Does such an acquittal bar further prosecution even if court relies on evidence that is technically not before it?
COSA Dissent Watch: Questioning Police Officer Testimony and Bias in Voir Dire
The case: Lapole v. State, Sept. Term 2014, No. 2169 (June 27, 2016)
The questions: Can a voir dire question about bias regarding testimony of police officers reference other professions as well? Is the failure to properly give that question subject to harmless-error review?
Save time and money by appealing in banc
By John Grimm
I recently posted about appeals in District Court of Maryland cases, including lesser-known appellate options. Maryland also allows for an unusual type of appeal from circuit court decisions — the in banc appeal. Article 4, § 22 of the Maryland Constitution allows, with some exceptions, a party who loses “any trial conducted by less than three Circuit Judges,” to request review “in banc” (and yes, for the pedantically inclined, the term of art is “in banc,” not the more common “en banc”) by three circuit court judges, in lieu of an appeal to the Court of Special Appeals.
State v. Braverman: $5 million fee award here today, gone tomorrow
In an opinion featuring forceful and direct language, the Court of Special Appeals recently reminded us that the “American Rule” regarding attorneys’ fees remains alive and well in Maryland. In 2007, 49 plaintiffs, led by William Braverman and Stanley Goldberg, sued the State of Maryland, challenging the constitutionality of recently enacted legislation affecting the use of “ground leases” in Maryland. After several years of litigation – including removal to federal court followed by a remand to state court, an effort to change venue, certification as a class action, and a trip to the Court of Appeals – the plaintiffs succeeded in their attack on that legislation. See State v. Goldberg, 437 Md. 191 (2014). The plaintiffs then filed a fee petition in the circuit court, which, after an evidentiary hearing, ordered the State to pay $5 million in fees. But the joy of that victory was short-lived, as the Court of Special Appeals, in State v. Braverman, No. 429 Sept. Term (June 1, 2016), reversed the circuit court’s award as running afoul of the American Rule.
COSA Dissent Watch: Credibility and Contradiction in a “Sham Affidavit”
The case: Davis v. Lewin Realty, III, Sept. Term 2015, No. 0420 (May 25, 2016) (unreported)
The questions: Can a court assess credibility in striking a “sham affidavit” pursuant to Md. Rule 2-501? In the context of that rule, how specific do statements have to be for a court to find them contradictory? Is it a materially inconsistent for a witness to recall facts in a later affidavit that she could not recall in an earlier deposition?
Non-Mutual Collateral Estoppel: A Shield, but Now Clearly Also a Sword
Last summer, I reviewed the decision of the Court of Appeals in Shader v. Hampton Improvement Ass’n, Inc., 443 Md. 148 (2015), and the decision of the Court of Special Appeals in Garrity v. Maryland State Bd. of Plumbing, 221 Md. App. 78 (2015), and posed the following question: In addition to being used defensively as a shield, may non-mutual collateral estoppel be used offensively as a sword? In Garrity, the Court of Special Appeals had embraced the use of offensive non-mutual collateral estoppel, at least in the context of successive proceedings brought by separate administrative agencies. But I noted that the Court of Appeals on a number of occasions had neither embraced nor rejected offensive use of the doctrine, and, in Shader, had skirted the question, holding that the case did not require an answer to it. I suggested that the issue needed to make its way back to our highest court so that the Court could have the final word on the subject. Having granted certiorari in Garrity, the Court of Appeals a few weeks ago issued an opinion permitting offensive non-mutual collateral estoppel.
Do not overestimate the exceptions to the exhaustion of administrative remedies
When evaluating a new case, the focus often relates to the merits of the claim: Is your client credible? Are there witnesses who can corroborate your client’s position? Are there documents that substantiate the claim? What legal theories apply? Has the statute of limitations run yet?
All of these elements play a significant role in advising a client and deciding to pursue the case. When handling matters before administrative agencies, however, it also is essential to consider the hierarchy of remedies that are available. Some administrative remedies must be pursued before filing a complaint in court, while others may proceed concurrently or without affecting other legal processes. Knowing where to go first can be tricky, as two police officers learned the hard way.
Yes, appeal options matter in state District Court
By John Grimm
One of the challenges of a criminal practice in the Maryland District Court is deciding how best to position your client for appeal. A typical day in the District Court can be a busy, if not hectic, affair, requiring lawyers to wrangle witnesses, work out plea deals, examine discovery, and, not uncommonly, meet and interview their clients for the first time. Although it can be hard to devote attention to preserving appellate issues, or even thinking about appellate strategy, the District Court’s unique jurisdictional status presents both appellate risks and benefits, and, during your trial preparation, it’s worth giving a little thought to what you’d want your criminal appeal to look like.