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Justice delayed at Maryland Court of Appeals

Kevin C. Alston has been waiting longer than his five-year prison term for a decision from Maryland’s top court on whether his sentence for gun possession by a felon was illegal because it denied him the possibility of parole.

Pluto was still a planet and the public launch of Twitter was still two months away on May 3, 2006, when the Court of Appeals heard arguments in Alston’s case.

He is still waiting for the court’s decision.

And Alston is not alone.

Tony Lamont Haile’s ineffective assistance of counsel claim was argued in the top court on April 9, 2007.

Six months later, on Oct. 3, 2007, the high court heard from Jaron Tyree Grade, who claims the judge at his murder trial erred in dismissing a juror without notifying defense counsel.

And Jody Lee Miles remains on death row, his constitutional challenge to the state’s capital sentencing statute hanging fire three years after argument in the Court of Appeals on May 5, 2008.

“There is a very strong impulse within our law that justice delayed is justice denied,” said state Sen. Jamin B. “Jamie” Raskin, a constitutional law professor at American University’s Washington College of Law. “These cases indicate that justice delayed is just as to be expected.”

Some civil litigants are also waiting for a decision, two and even three years after oral argument (see related story). While such delays are unusual, the court’s own numbers show the average time between oral argument and a decision rose to the highest level in a decade in fiscal 2010, the last year for which data are available.

Criminal and civil litigants waited an average of 178 days after argument for a decision last fiscal year, the longest lag in at least a decade. That’s up more than two months from an average of 114 days in fiscal 2009, and 105 the year before, according to figures supplied by the Administrative Office of the Courts.

Political scientist Lawrence Baum, who specializes in the judicial process, said chief judges are responsible for the administration of their courts and, thus, the time it takes opinions to be filed after cases are filed.

“The willingness and effectiveness of the chief justice to ride herd [on the associate judges] makes a substantial difference,” said Baum, who teaches at Ohio State University. “To what extent does the chief say, ‘We’ve got to get the decision out’?”

Court of Appeals Chief Judge Robert M. Bell has repeatedly declined The Daily Record’s requests to discuss the time span between arguments and decisions on his court.

Bell, who has led the court since 1996, did not return a dozen messages left with his chambers, the court’s media relations office and on his cellphone over a period of three weeks in July.

On Aug. 1, Bell was buttonholed at the National Bar Association’s meeting in Baltimore.

“I’m giving it some thought,” the chief judge said.

He added that an answer would be forthcoming. More than a half-dozen follow-up calls during the first two weeks of August went unreturned.

The Eldridge factor

Baum said that one way a chief judge can prevent delays, at least when he or she is voting with the majority, is to refrain from assigning opinions to a judge who does not complete them with dispatch.

Anecdotally, retired Judge John C. Eldridge has long been regarded as the slowest pen on the bench — the jurist who takes the most time to issue an opinion. Figures supplied by the Administrative Office of the Courts bear that out.

Eldridge turned 70 and retired in November 2003. During his last full year on the court, fiscal 2003, the average wait for a Court of Appeals’ opinion was 174 days after argument. In the first full year after his retirement, that dropped to 117 days, according to the judiciary’s figures.

In retirement, Eldridge has continued to hear cases when specially assigned by Bell. And in 10 cases the court has decided since September 2009, Eldridge has been assigned to write the majority opinion.

The average time between argument and opinion in those 10 cases has been 24.2 months, according to calculations by The Daily Record. That’s more than twice the average of any other judge on the court.

While some of those decisions split the court, four were unanimous. The unanimous decisions took longer — about 29 months, on average.

“There’s a lot of negotiating among the judges,” said David D. Freishtat, a land-use lawyer at Shulman Rogers Gandal Pordy & Ecker PA in Potomac, who has argued cases before the high court.

“They’re trying to make it right,” Freishtat said. “Being a judge is not an easy job. You don’t call balls and strikes so easily.”

Eldridge declined to address criticism that he takes too much time issuing opinions.

“I don’t care to discuss it,” Eldridge said. “You should speak to the chief judge. He is the spokesman.”

A tale of two slots cases

Earlier in 2009, Eldridge did issue a unanimous opinion in just six weeks. That case, however, came with a built-in time limit.

At issue was Laurel Racing Association’s attempt to rebid on a slot machine license. The state Video Lottery Racing Commission had announced plans to award bids in the fall.

The high court heard arguments on June 9, 2009. On July 20, 2009, it held that the question must first be addressed administratively by the Maryland Board of Contract Appeals.

In another time-sensitive slots case, the court issued an order immediately and promised an opinion would follow.

The case, Stop Slots MD 2008 et al. v. State Board of Elections et al., was heard on Sept. 15, 2008, nine months before Laurel Racing. (Eldridge was not assigned to hear the Stop Slots case, court records show.)

Within hours after the argument, the court had voted. According to the unsigned order issued that day, a majority agreed with the lower court, striking down Stop Slots’ challenge to a pending ballot question on whether to allow slot machines in Maryland.

The order promised an opinion “at a later date.”

Two years and 11 months later, Maryland has two slots parlors in operation and more under construction.

But Irwin Kramer, the Kramer & Connolly partner who argued the case for Stop Slots, is still waiting for his explanation from the Court of Appeals.

“Shouldn’t the public be apprised of why the court did what it did?” Kramer asked; “and should the public have to wait until the issue is long gone?”

Aging badly

As frustrating as it is to wait for the opinion in a civil case like Stop Slots, the consequences of delay may be most troubling when the court overturns a criminal conviction.

That’s what happened on May 25, when the judges unanimously held that Ramon Lopez deserves a new trial on charges of importing and possessing marijuana.

At Lopez’s first trial in 2004, he was allowed to dismiss his attorney and represent himself. He was sentenced to 20 years in prison.

The Court of Appeals heard the case on Oct. 6, 2008. Two years and seven months later, Eldridge wrote for the court that Lopez’s dismissal of counsel was not made knowingly because Lopez was misinformed about the severity of his potential punishment.

Caroline County State’s Attorney Jonathan G. Newell said he will “absolutely” retry Lopez, who remains incarcerated pending his new trial in October.

“This time we’ll make sure that he knows he’s facing 20 years,” Newell said.

From the defendant’s perspective, time spent behind bars on a wrongful conviction is time he can never get back. And if the defendant is guilty, delay can make it harder for the state to prove it. Memories fade and witnesses who testified for the prosecution at the first trial might be unavailable years later.

“Criminal cases do not age like fine wine,” said Katherine Winfree, chief deputy to Maryland Attorney General Douglas F. Gansler. “Delay is always a concern.”

Maryland Public Defender Paul B. DeWolfe declined to generalize, saying each individual case “would have to be examined to determine the cause for the delay.”

“If it’s a systemic issue,” DeWolfe said, “it’s of concern because they should be moving these cases.”

Setting limits

If the decision-making process is to move faster, it is up to the court to do it, as the constitutional separation of powers doctrine naturally constrains the legislature’s role.

That does not mean lawmakers are powerless, said Raskin, who serves on the Senate Judicial Proceedings Committee. “There’s the bully pulpit and we do approve the Judiciary’s budget,” he said.

However, he agreed with Sen. Brian E. Frosh, who chairs the committee, that a heavy-handed approach would “not be good policy.”

“It really is the province of the judiciary,” Frosh said. “I don’t think it’s the business of the legislature to get involved in telling the court how long they have to write opinions. I don’t think that’s a proper legislative purview.”

And the court has done it before: in the late 1980s, the average time between argument and opinion often averaged more than 200 days, according to a highly critical article by former Court of Appeals Judge William H. Adkins II that was published in 1992. (See related story here)

By fiscal 1995, the average had dropped to 5.4 months, where it stayed until fiscal 2000, according to the Judiciary’s figures.

Baum, the political scientist, said one way to prevent long delays is to have the court impose a deadline on itself, such as the U.S. Supreme Court’s standard of hearing and deciding cases in a single term.

While the number of Supreme Court opinions has decreased, the court also met that standard during the late 1980s and early 1990s, when it decided about 160 cases per term — comparable to the number of opinions the Court of Appeals issues today.

“Imposing some sort of artificial deadline might be the single best thing you can do,” Baum added. “Maybe it detracts from [writing] quality, but it does force them to get things done.”

Arguably, it could also save the Court of Appeals from violating the Maryland Constitution it has sworn to uphold.

Article IV, Section 15 of the state’s governing document states, with regard to the Court of Appeals, that “in every case, an opinion, in writing, shall be filed within three months after the argument or submission of the cause; and the judgment of the Court of Appeals shall be final and conclusive.”

The high court, however, held in a 1908 decision, McCall’s Ferry Power Co. v. Price, that the three-month deadline — despite the use of the word “shall” — is “merely directory and not mandatory.”

That holding seems to conflict with a line of decisions — most recently on June 17, in Perez and Canela v. Maryland — in which the Court of Appeals has held that “when the legislature commands that something be done, using words such as ‘shall’ or ‘must’ rather than ‘may’ or ‘should,’ the obligation to comply with the statute is mandatory.”

Kramer, the civil litigator, said that a permissive constitutional interpretation does not excuse the inordinate time span between the argument and still-pending opinion in his case.

“Three months [versus] three years is a very big difference,” he added. “It certainly was not within the contemplation of those who framed the constitutional provision that it take this long for a decision.”

But Court of Appeals Judge Joseph F. Murphy Jr. defended the court’s view that the three-month deadline is nonbinding. The framers included no enforcement provision, such as mandating that the decision be affirmed if the high court failed to issue its decision within 90 days, he noted.

“They could have said that, but they didn’t, and wisely so,” Murphy said.

Opinions may have to be revised to accommodate other judges’ concerns, he added; or, it may be “a matter of fine-tuning it to prevent the old unintended consequence.”

“In the opinions that are filed by the supreme courts of the various states, it is much more important to get it done right than to get it done now,” said Murphy, who is stepping down from the court this month to join his daughter’s law practice. “The issues that get up to the Court of Appeals are never easy and, believe me, the delay isn’t caused by laziness or inefficiency. The delay is caused by the desire to make sure that the opinion is correct in all respects and helpful to the bench and the bar.”

Still, where Murphy sees necessity, Kramer sees a double standard.

“If an attorney were to lay on a case for three years before acting on it, I believe the court would have a few choice words for that lawyer,” he said. “It’s a one-way street when it comes to handling matters in a prompt fashion.”