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Court of Appeals withdraws decision, letting murder conviction fall

Maryland’s highest court has withdrawn a decision it took nearly three years to issue — which, in turn, erased the murder conviction the Oct. 25 decision had revived.

Monday’s one-sentence order offered little explanation for the court’s rare step, saying only that “in light of” a motion for reconsideration it had received, the Court of Appeals had concluded it should not have heard the case.

Attorney Gary E. Bair, who sought the reconsideration, said the Court of Appeals had erred in October by finding against his client on a point the state had already conceded.

Bair said Monday that he welcomed the withdrawal of the October decision, which reinstated murder and handgun convictions against his client, Arthur Franklin White Jr.

But he added the court should have gone further and overturned White’s related violent-crime convictions, which still leave him serving a prison term of life plus 55 years.

“We’re better off now than we were yesterday,” Bair said. “But he still has the [convictions] that the Court of Special Appeals left intact.”

The order ends the appellate process, said Bair, of Bennett & Bair LLC in Greenbelt.

Plain error

A Charles County jury had convicted White of first-degree murder, use of a handgun, conspiracy, kidnapping, armed robbery and possession of a handgun by a convicted felon in the August 2005 death of Derrell Stephen Cooks, who was killed in Waldorf and whose body was dumped in Washington, D.C.

White was sentenced to two life terms plus 75 years, including life for the murder and 20 years for using a handgun.

In 2007, the Court of Special Appeals upheld the convictions for each crime except murder and using a handgun.

The intermediate court said the trial judge committed “plain error” by permitting jurors to consider the prosecution’s argument that if they acquitted White, he would never be punished because his defense attorney would tell the Washington jury in a subsequent trial that the killing had occurred in Maryland.

White sought review by the Court of Appeals, saying the judge’s error should nullify all the convictions, not just the murder and handgun charges.

However, the high court, in its Oct. 25 decision, said the judge had not erred in permitting the jury to consider the prosecutor’s argument and reinstated the murder and handgun convictions.

Bair, in his reconsideration motion, called the court’s decision “fundamentally unfair” because the state had not challenged the Court of Special Appeals’ holding that the judge had erred.

Instead, the state argued only that the error should not have invalidated the murder and handgun convictions, Bair said.

“This court’s decision to review the issue [of plain error] even though it was not the subject of a cross-petition was especially unjust, where the state did not belatedly raise the issue in its brief or argument and thus never asked the court to reach the issue,” Bair wrote. “Consequently, Petitioner had no reason to anticipate that the court would revisit whether plain error occurred and was unfairly surprised by the court’s decision.”

Brian S. Kleinbord, who heads the Maryland attorney general’s criminal appeals division, said the high court never asked the state to respond to Bair’s motion for reconsideration.

Under Maryland Rule 8-605, a response to a reconsideration motion may not be filed unless requested by at least one judge who concurred in the opinion.

“We would have liked the opportunity to respond to the petitioner’s motion for reconsideration but the rules do not provide for such a response,” Kleinbord said.

Crossing the border

According to Maryland prosecutors, White and co-conspirators Johnny Goldring and Tyrone Lyles contacted Cooks about buying drugs from him. Cooks was killed when he showed up in Waldorf and the three men threw his body into the trunk of his car and drove it into Washington, D.C.

In closing arguments in White’s case, the prosecution told the jurors that a Washington, D.C., jury is “not going to know” that a trial occurred in Maryland. White’s counsel is “going to get up there and pound on the rail in front of them, ‘Everything happened in Maryland, everything happened in Maryland. You can’t find him guilty here in D.C. They just found the body here.’”

The high court rendered its opinion a week short of three years after it heard arguments in the case, on Oct. 30, 2008.

The time span is in keeping with a report in the Aug. 15 edition of The Daily Record that found many Court of Appeals cases remain pending more than two years — and in one case more than five years — after they are argued.

Now-retired Judge Joseph F. Murphy Jr., who wrote the October opinion, is now an attorney at Silverman, Thompson, Slutkin & White LLC in Baltimore. Through an aide, Murphy said he did not participate in Monday’s order withdrawing the decision and therefore would not comment on it.

Bair is married to Court of Appeals Judge Mary Ellen Barbera. She recused herself from the case and was replaced by retired Judge John C. Eldridge.

Eldridge was the only jurist on the seven-member Court of Appeals who did not join Murphy’s opinion. However, Eldridge did join in the court’s judgment.