The Maryland appellate court cases that weren’t

court opinionsA visit to the “Appellate Opinions” page on the Maryland Judiciary website early Thursday afternoon did not show “2014″ available under filing year, meaning no opinions have been released in January by the Court of Appeals or Court of Special Appeals.

Or have there been?

When I selected “All” under filing year, a list of court opinions came up. At the top were two opinions dated Jan. 1, 2014:  “Navy v. Army” and “State v. State.”

I felt as if I had entered a code in a video game to reach some secret level. I would be scooping the world about a lawsuit between the Navy and the Army!

Alas, when I clicked on the links, there only was a nearly-blank page with “Test COSA Opinion” written in small type at the top.

A Judiciary spokesman told me Thursday afternoon that the items were posted before the holidays as tests of the system. By 5:30 p.m. Thursday, the case names had been changed to “Test.”

So we’ll have to wait at least another day for our first Judge Harrell footnote of 2014.

Harrell goes Hollywood, cuts to the chase

notting hillIt’s been a while since I’ve opened a blog post with, “It’s been a while since we’ve checked the opinions of Court of Appeals Judge Glenn T. Harrell Jr.” But a colleague has alerted me to two opinions from Thursday that deserve proper acknowledgement.

We begin at the beginning of a family law opinion, which starts thusly. I’ve added in bold where he placed citations:

A character portrayed by the actress Julia Roberts observed, “Happiness isn’t happiness without a violin-playing goat.”  If that be so, the live goat included as part of the dowry at a traditional marriage ceremony on 23 December 1993 in Kinshasa, Zaire, marking Marie-Louise Ntumba’s union with Noel Tshiani, was no Vivaldi.

That’s right, three footnotes in the first two sentences! That must be a some sort of record. The first footnote explains the quote came from Anna Scott, played by Roberts in 1999′s “Notting Hill.” The second footnote clarifies that “Zaire” is now known as the Democratic Republic of the Congo. The final footnote cites Vivaldi as “one of the most accomplished violinists in world history.”

In the second case, Harrell filed a dissenting opinion in a case involving local government liability and auto insurance.

“I dissent,” Harrell begins. “At the expense of legal scholarship, I reject the Majority opinion’s result as contrary to common sense.”

In a footnote, Harrell elaborates on his succinctness:

Had I thought there to be a prayer that a more conventionally-expressed and erudite dissent (replete with citation of “legal” authorities and the deployment of reasoning based on those authorities) might draw enough of my colleagues to my view, I would have invested the time in that pursuit. With the benefit of knowing that such a prayer would not be answered however, I default to a more economical, plain-spoken invocation of common sense merely to record my idiosyncratic views.

Thank you for your honesty, your honor.

Law blog roundup

Welcome to Monday, the 377th anniversary of Harvard University’s founding. Here are some news items to get your week started.

– Supreme Court honors Maryland’s retired chief jurist.

Photo of Robert Bell

Retired Chief Judge Robert Bell (right), in an undated photo.

– House Intelligence Committee chair speaks in defense of surveillance.

– Warren Commission staffer cautions against conspiracy theories.

– New York’s attorney general asks that 1971 Attica prison-riot documents be unsealed.


Watts’ unusual dissent

Shirley M. Watts

Incoming Court of Appeals Judge Shirley M. Watts shakes hands with Gov. Martin O'Malley after her appointment Wednesday to Maryland's top court. (Maximilian Franz/The Daily Record)

Incoming Court of Appeals Judge Shirley M. Watts filed an unusual dissenting opinion in one of her last cases as a Court of Special Appeals judge.

In a 2-1 decision in Costen v. State, the Court of Special Appeals vacated a criminal conviction and sent the case back to Worcester County Circuit Court because of an incorrect application of Maryland Rule 4-246(b), which deals with the waiver to the right of a jury trial.

Court of Special Appeals Judge Timothy E. Meredith, writing for the majority, cited the Court of Appeals’ May decision in Valonis v. State. In that case, the top court more clearly defined Rule 4-246(b), with Judges Robert N. McDonald and Sally D. Adkins dissenting.

Back to Watts: In Costen, not only does Watts dissent with the majority, but she also writes that she agrees with the dissenters in Valonis.

In other words, Watts disagrees with the law as established by the Court of Appeals.

Come September, should a similar case come before her, now she’ll have a chance to change that law.

Evidence suggests potential snags in forensic use of social media

Paul Grimm

U.S. District Court Judge Paul W. Grimm

It’s one thing to hear lawyers talk about the “CSI effect,” where jurors expect to see prosecutors present the high-tech evidence that regularly cracks cases on television.

It’s another thing to hear one of the foremost authorities on evidence and discovery say it.

“It’s more powerful than a great opening statement or a tear-inducing closing,” U.S. District Court Judge Paul W. Grimm told a packed seminar during the Maryland State Bar Association’s Annual Meeting in Ocean City.

The Criminal Law and Practice Section’s panel mixed a discussion of the newest technologies with references to Popeye, Mr. Peabody and several utterances of the phrase “if you are of a certain age.”

Those of a certain age could recall where prosecutors needed someone on the witness stand to identify the suspect as the person who committed the crime.

Now, “cell phones are the new, best way to solve crimes,” said Baltimore County State’s Attorney Scott Shellenberger. The first three questions investigators ask a suspect is for his name, if he has a cellphone and if he always has his cellphone on him, he added.

Shellenberger described a case where four people were convicted in connection with a murder based on a suspect’s cellphone address book and recent calls. Surveillance cameras helped corroborate the defendants were at the scene of a crime.

In another case, Baltimore County prosecutors were able to obtain a murder conviction by mapping the victim’s and defendant’s cellphone “pings” to cell phone towers to prove they were in the same location at the same time.

“Technology not only solved the crime, it proved the crime,” he said.

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An insider’s look at Maryland v. King

Supreme CourtKannon K. Shanmugam, Alonzo Jay King Jr.’s lawyer, was reviewing the amicus briefs filed to the Supreme Court in support of Maryland’s DNA collection law when he started counting. Forty-nine states had filed briefs.

Shanmugam was encouraged.

“Someone held out!” he recalled to laughter during a panel session at the Maryland State Bar Association’s Annual Meeting. “Then I realized it was Maryland.”

Shanmugam was gracious in defeat Thursday as he provided the lawyers and judges in Ocean City with his perspective on Maryland v. King, which reinstated the state law permitting police to collect DNA samples from people arrested on charges of committing or attempting to commit a violent crime.

“I think this is a case we will look back on in 10 or 15 years and say, That was the case from this term that had the largest impact,” said Shanmugam, a partner at Williams & Connolly LLP in Washington.

As Shanmugam was doing research for his case, he discovered the Supreme Court had never decided on the constitutionality of fingerprinting, let alone DNA testing. (He also found that since the Maryland law’s adoption, there were 20 cases where a suspect was arrested and not convicted but DNA led to the prosecution of another crime.)

Both sides agreed there was a search in the case: Shanmugam’s strategy was to argue to that DNA is different from a fingerprint when it comes to a search.

“DNA testing is not used for identification, it’s simply to show that someone committed a crime,” he said, an argument championed by Justice Antonin Scalia in his dissent.

Shanmugam called the oral argument “fascinating.”

“It felt like one of those relatively few cases where the decision is in doubt during the argument,” he said.

(Also in attendance at oral arguments and Thursday’s panel were Court of Appeals Judges Glenn T. Harrell Jr. and Mary Ellen Barbera, with the latter introducing herself to Shanmugam after the discussion ended.)

The majority, Shanmugam said, placed weight on the fact King had been arrested previously, meaning King had “lost some some expectation of privacy.”

The narrowness of the reasoning was deliberate, Shanmugam added.

“The court is mindful of the fact one of the major issues it will deal with [in the future] is the Fourth Amendment and emerging technologies, particularly used by law enforcement,” he said.

That’s why Justice Samuel A. Alito called the Maryland v. King “one of the most important criminal procedure cases in the last 10 years,” Shanmugam said.

“I’m now the guy who lost the most important criminal procedure case in the last 10 years,” he added with a smile.

Law blog roundup

harrell and barberaWelcome to Monday — and Tax Day 2013. Here’s hoping for many happy returns as you take these news items into account.

– Two Maryland Court of Appeals judges watched as the U.S. Supreme Court considered their DNA-case opinions.

– Delays in justice reportedly afflict New York courts.

– A lawyer became a hero in a dispute between Chicago and apartment tenants.

– A Minnesota Supreme Court justice — and former Purple People Eater — has written a children’s book.

(Photo: Melissa Golden for The Wall Street Journal)

Kramer to seek special session on dog bill

Benjamin Kramer and Kathleen Dumais

Dels. Benjamin Kramer, left and Kathleen Dumais, both Montgomery County Democrats, get into a heated exchange about the dog-liability bill on the House floor Monday night. (Maximilian Franz/The Daily Record)

Del. Benjamin Kramer, whose opposition to legislation imposing near-strict liability on dog owners led to the measure’s death in the House, said he wants the General Assembly to have a one-day special session to pass legislation to relieve landlords of their strict liability for injuries caused by their tenants’ pit bulls.

Kramer, a Montgomery County Democrat,  said he has not consulted yet with either Gov. Martin O’Malley, Senate President Thomas V. Mike Miller Jr., D-Prince George’s and Calvert, or House Speaker Michael E. Busch, D-Anne Arundel, on a special session. However, Kramer said he plans to send a formal request to the governor soon after meeting with fellow legislators.

Landlords, fearing strict liability, have forced tenants to choose between staying in their rental abodes or getting rid of their pets, Kramer said.

“We have an obligation and a responsibility to protect the family pets of our residents,” he said. Tenants “should not be put into that position. That’s what we have to stop.”

He added that providing relief to landlords from strict liability remains the unfinished business of the 2013 General Assembly session, which ended Monday.

O’Malley spokeswoman Raquel Guillory said “the governor would likely have  a conversation with legislative leaders and the delegate” before committing to a special session.

Maryland’s top court imposed strict liability on landlords in its April 2012 Tracey v. Solesky decision, which also held pit bull owners strictly liable for injuries their dogs cause.

The Senate-passed legislation that died in the House as the General Assembly adjourned would have held dog owners, regardless of breed, liable for injuries their pets cause to children under age 13. Owners could escape liability only if the child had trespassed or provoked the dog. For people 13 and older, owners would have to rebut the presumption of liability by showing by a preponderance of the evidence that they had no reason to suspect their dog had a vicious propensity.

Kramer opposed the Senate bill, saying on the House floor Monday that the measure would unfairly make a dog owner liable whenever “little Fifi” nipped at a child. On Wednesday, Kramer said the Senate and House should reconvene to pass legislation on which he said both chambers agree: that landlords should not be held strictly liable.

Pit bull task force talk

The General Assembly’s pit bull task force met Thursday for the first time since this summer.

While no concrete decisions were made and only six of the 10 members of the task force attended, the group discussed how to determine whether a dog is at fault in the case of an attack.

As a recap: The task force is supposed to discuss legislation in response to an Court of Appeals decision earlier this year that ruled pit bulls are “inherently dangerous” and landlords and owners are liable in the case of an attack.

In a special session this summer, the General Assembly tried, but failed, to pass legislation dealing with the issue. Both the Senate and House of Delegates agreed that landlords should not be liable in attacks. While the Senate passed a bill making all dog owners liable in the case of a dog bite, the House of Delegates wanted narrower legislation that would limit liability only when a dog is running around “at large.”

In Thursday’s hour-and-a-half meeting, the group discussed the complexities of determining whether a dog bite is intentional and if a dog is at fault if he/she is provoked by a human.

“Is there any state in which it is allowed for a dog to be cross-examined?” Sen. Brian E. Frosh, D-Montgomery, questioned during the work session.

Del. Benjamin F. Kramer, D-Montgomery,  said other states have had animal psychologists testify in court.

“We have to look at this from an animal’s perspective,” Kramer said. “From an animal’s perspective, this was provocation.”

Frosh, however, questioned Kramer.

“Do we really want to go down that road?” Frosh said.

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Why I did not vote on Bell’s successor

I did not vote in The Daily Record’s recent poll on whom you think Gov. Martin O’Malley should name as the next Court of Appeals chief judge when Robert M. Bell retires July 6, his 70th birthday.

I could tell you the reason I did not vote is because my journalistic integrity does not allow me to play favorites, even anonymously, when it comes to the institutions and people I cover.

That would be only half right. The other reason is I am not very good at predicting high-court appointees.

It all started in the summer of 1990 when Justice William J. Brennan Jr. announced his retirement from the U.S. Supreme Court. The choice for his successor seemed obvious to me.

The then-U.S. solicitor general had stepped down from the U.S. Circuit Court of Appeals in Washington, D.C., to take the job under then-President George H.W. Bush. Certainly, this man would be Bush’s choice for the Supreme Court.

But Bush passed on Kenneth W. Starr and selected a lesser-known 1st U.S. Circuit Court of Appeals judge and former New Hampshire attorney general named David H. Souter.

I figured I’d quit while I was behind.