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.

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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Answer to ethics question helped to guide CSA judges in Exxon Mobil opinion

Maybe we could’ve seen coming the confusion over the Court of Special Appeals’ in banc hearing of Exxon Mobil’s appeal of Jacksonville residents’ $150 million jury verdict. After all, the judges themselves were concerned about who could hear the case.

The Maryland Judicial Ethics Committee issued an opinion last August — one month before the hearing — titled “Circumstances In Which Appellate Judge May Participate In Appellate Review Involving A Corporate Appellant In Which Such Judge Owns Or Has Owned Stock.”

(The “corporate appellant” is Exxon Mobil, unless there was another party in Maryland appealing what the ethics opinion calls a “$147 million judgment” that I and my colleagues did not know about.)

Anyways, the ethics opinion discusses three unnamed judges facing the following dilemmas:

– Judge A and Judge A’s spouse own shares of the Exxon Mobil, and the company is also in Judge A’s IRA.

– Judge B’s IRA formerly included 75 shares of the stock sold during the summer at a profit “for reasons completely unrelated to” the pending appeal, according to the ethics opinion.

– Judge C owns 350 shares of Exxon Mobil stock. Judge C acquired such shares within the last year but has not indicated the current value of such ownership.

The opinion concluded that Judge B could hear the case because the judge no longer had a financial interest in Exxon Mobil. On the other hand, “to the extent a particular disposition of the pending appeal might ‘substantially affect’ the values of the interests of Judges A and C in the appellant, and thereby cause such judges’ impartiality to reasonably be questioned, they should disqualify themselves,” the opinion states.

Judge James R. Eyler, the committee’s chairman, and retired Judge James A. Kenney III, a committee member, recused themselves from the ethics opinion.

Incidentally, Chief Judge Peter B. Krauser and Judge Albert J. Matricciani Jr. and Judge Christopher B. Kehoe recused themselves from the in banc court’s 321-page opinion.

An appeal with some weight

The Court of Special Appeals received a special delivery earlier this week: the original case record from the $150 million verdict in favor of 89 Jacksonville homeowners against ExxonMobil Corp. A judge upheld the award in September, at which point Exxon noted its appeal.

It took a truck to haul “27 boxes and one plastic map” to Annapolis, according to court records. A breakdown of the boxes:

  • 8 contained the complaints filed by the homeowners in the mass-action suit
  • 6 were marked “Alban, et al v. Exxon,” the lead case in the trial (the plaintiffs were collectively called the Alban plaintiffs)
  • 5 contained exhibits
  • 3 contained jury questionnaires
  • 2 contained transcripts
  • 2 contained “memos, appendices and verdict sheets”
  • 1 contained jury selection sheets

Arguments in the case take place in September. In preparation, I’ve heard Exxon made copies of all of the exhibits at a cost approaching five figures.

The CSI effect, in Maryland and Massachusetts

The chief judge of the Supreme Judicial Court of Massachusetts would just like everyone–lawyers, judges, everyone–to shut up about CSI.

Judge Margaret H. Marshall made her remarks during oral arguments in a case where a convicted murderer is asking for a new trial. The appellant says the judge in his case should not have said to the jury, “And I remind you that this is real life and not ‘CSI.’ I say that without being facetious. It’s been observed across the country that people who’ve watched that particular program and similar programs tend to think that life is all that sort of science fiction and it’s not.’’

As the Boston Globe reports, Marshall took a dim view of the trial judge’s comments:

Marshall, however, noted from the bench that a 2006 Yale Law Journal study concluded the “CSI effect’’ was legal fiction and that jurors were not influenced to be against prosecutors. As such, she said, talk about “CSI’’ should be banned in courtrooms across the state.

“I am just saying however we resolve the issue in this case, it’s not the first time that it has come up,’’ Marshall said. “We should just keep television out of criminal trials.’’

Marshall added: “Why don’t we just suggest [to judges and lawyers] to forget about ‘CSI.’ Just don’t bring it into a criminal trial. It’s not influencing anybody.’’

I found this especially interesting in light of my colleague Steve Lash’s story this past summer on a Court of Special Appeals opinion in a similar case. In that case, the court held that it wasn’t a problem for a Baltimore City judge to tell a jury that the trial was not like CSI and that they didn’t need scientific evidence to convict. From Steve’s article:

Attorneys for the two convicted murderers had argued that Baltimore City Circuit Judge Charles G. Bernstein’s contrast between real life and the fictional police drama gave jurors the improper impression that prosecutors need not present strong evidence to prove the defendants were guilty.

But the intermediate court said Bernstein’s statement about the popular CBS television series was within a judge’s broad discretion to ask questions to determine if prospective jurors could consider the evidence fairly and impartially.


During voir dire — a preliminary screening process for potential jurors — Bernstein told prospective jurors that “CSI” does not reflect reality.

“I’m going to assume that many of you, from having done a few of these, watch too much TV, including the so-called realistic crime shows like “CSI” and “Law and Order,’” Bernstein said, referring also to a popular courtroom drama on NBC television.

“I trust that you understand that these crime shows are fiction and fantasy and are done for dramatic effect and for this dramatic effect they purport to rely upon, quote, scientific evidence, close quote, to convict guilty persons,” he added. “While this is certainly acceptable as entertainment you must not allow this entertainment experience to interfere with your duties as a juror. Therefore, if you are currently of the opinion or belief that you cannot convict a defendant without, quote, scientific evidence, close quote, regardless of the other evidence in the case and regardless of the instructions that I will give you as to the law, please rise.”

Of course, the Massachusetts court hasn’t decided its own CSI case yet, but the approach signaled by Marshall is certainly different than the one taken by our Court of Special Appeals.

The CSA won’t be the last word on the matter in Maryland, though: the Court of Appeals’ Web site indicates that it granted cert last month.

This Week in Maryland Lawyer

On the Cover:  Welcome to the first Monday in October! This morning marks the Supreme Court debut of Maryland Attorney General Douglas F. Gansler and Assistant Public Defender Celia Anderson Davis, who will argue over a Hagerstown man’s child sex abuse conviction. The question is whether a request for counsel, years earlier, should have stopped police from questioning the suspect without a lawyer after they obtained additional information. Read the main story, some advice from Gansler’s predecessor, and a preview of the new term.

In the News: The Court of Appeals heard argument in a legal malpractice case that challenges the “case within a case” methodology … the ban on self-represented lawyers claiming attorneys’ fees applies even to bad faith or frivolous actions, the Court of Special Appeals holds … Maryland Legal Services Corp. renews its quest for a higher filing-fee surcharge … Sen. Ben Cardin finds a civil audience for his health-care talk at UB Law… and a former CBS Early Show personality appeals a ruling that knocked out his medical malpractice claim.


This Week in Maryland Lawyer

On the cover: With their progressive pilot potentially on the chopping block, the OPD’s Neighborhood Defenders in Park Heights are defending not only their clients but their problem-solving approach. Also, Caryn Tamber talks to University of Maryland law professor Danielle Citron about her research into online gender harassment and the law.

In the news: An EPA official says the agency wants more weapons in its arsenal; Maryland’s top court upholds a sex-abuse conviction based on the testimony of a 6-year-old victim; Mike’s Train House is sued for infringement; and an offshoot of the “driving while black” case will be the subject of a rare Court of Special Appeals en banc hearing.


  • Verdicts & Settlements features the case of an HIV-positive teacher who was fired from his job at a private elementary school in Arnold.

  • Before there was “The Power of Nice” or his success as a sports agent, there was the Modern Bar Review Course. In My First/Business, Ron Shapiro reflects on the lessons learned from his initial foray into commerce.

  • In Opinion/Commentary, Jack L.B. Gohn weighs in on the narrowing difference between blogs and journalism, while Edward J. Levin points out a key requirement under a Maryland deed of trust: naming an individual as the trustee. 


This week in Maryland Lawyer

ON THE COVER: Life after Law — You’ve earned your J.D., passed the bar and taken the oath. But now you realize you no longer want to practice law. Caryn Tamber spotlights lawyers who have chosen alternative careers.

A consumer, saying the Gateway computer he bought at Best Buy is defective,  challenges the arbitration clause in the manufacturer’s warranty — and wins in the Court of Special Appeals. Find out how in Danny Jacobs’ report on Barrington D. Henry v. Gateway Inc., et al.

In Breaking News, former Nigerian presidential candidate Godson M. Nnaka, a Baltimore lawyer, runs afoul of the Attorney Grievance Commission — but is nowhere to be found; and the Maryland Comptroller owes Lenox Inc. a refund of more than $280,000 on taxes the china company paid on a product-handling system at its Hagerstown facility.

Upper Marlboro lawyer Rick Jaklitsch presides over the Terrapin Club, the University of Maryland’s booster group that raises money and provides scholarships for the more than 700 student-athletes on the 27 varsity teams at College Park.

In Verdicts & Settlements, a toymaker settles with its founder’s Hunt Valley consulting company over fees and royalties.

Guest columnist Linda D. Schwartz provides advice on what to do upon receiving a letter from Bar Counsel.

Stay up-to-date with our Law Digest, which includes cases from the Maryland Court of Appeals and the U.S. District Court, Maryland.

Judge Harrell’s fairy tale opinion

I’ve admittedly been a slacker in my announced effort to track the annotations of Judge Glenn T. Harrell Jr. in his written opinions for the Court of Appeals.

Then Harrell himself provided just the jolt I needed last week in his opinion concerning the validity of a three-judge panel’s ruling when one of the judges dies before the decision is issued, which I wrote about in today’s paper.

It’s right in the first sentence: “With the filing of this opinion, this Court will have completed a ‘Goldilocks’ trilogy,” a reference to two prior cases also dealing with the proper amount of judges needed for a proceeding. The footnote cites a folklore dictionary.

Thus inspired, I reviewed Harrell’s other decisions from this year. A March 12 opinion concering real property ownership begins, “This fracas over lebensraum.“ The German word means “living space” but, as a concept, is most closely associated with Hitler’s plan to expand Germany’s borders under the Third Reich.

In the same opinion, Harrell uses the word “demurrer,” defining it in a footnote for “our newer generations of lawyers” because the term is no longer part of pleading requirements in the state.

That’s all for now. Stay tuned for more updates — provided I don’t forget again.