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1976 murder conviction falls in Court of Appeals

Maryland’s top court has ordered a new trial for a man convicted of felony murder 36 years ago in the killing of a Hagerstown police officer, and in the process reopened the courthouse door to inmates convicted of violent crimes before 1980, when judges routinely told juries that their instructions were “advisory.”

The Court of Appeals said Merle Unger’s trial judge violated his right to due process by instructing the jurors that his instructions to them were “merely advisory.” Those advisory instructions included the statement that Unger’s guilt had to be proven beyond a reasonable doubt, the court said.

The top court also held — contrary to its own opinion in State v. Adams, a similar case from 2008 — that Unger’s trial attorney had not waived his right to challenge the instruction by failing to object when it was given.

The court said Unger’s trial attorney had no reason to object at the 1976 trial because the court had not yet found advisory jury instructions to be unconstitutional under Article 23 of the Maryland Declaration of Rights.

“Attorneys are not required to be clairvoyant,” retired Judge John C. Eldridge wrote for the majority.

Brian S. Kleinbord, of the Maryland Office of the Attorney General, said the decision could apply to convicts still serving sentences for violent crimes of which they were convicted more than 32 years ago.

Kleinbord said he objected to the court’s overturning — “without justification for even doing so” — of its 2008 decision in Adams.

But Daniel H. Ginsburg, who represented Unger before the high court, said the judges “clearly recognized that there was a due-process problem” in the advisory-only instruction.

“The jury could have applied whatever burden of proof it wanted to,” said Ginsburg, a Rockville solo practitioner. “There’s no reason to believe it didn’t do exactly that.”

Gary E. Bair, now a Montgomery County Circuit Court judge, was Ginsburg’s co-counsel.

Washington County State’s Attorney Charles P. Strong Jr. said Tuesday that he and his staff “fully expect to go forward” with retrying Unger after 36 years.

“All cases are difficult,” he said. “To my knowledge, all witnesses are available as well as the transcript of the prior trial.”

Eldridge’s decision was issued last week, more than two years after the court heard argument in the case.

Evolving law

The decision was the latest to interpret a clause of Maryland’s constitution that has stood nearly untouched since 1851. Article 23 provides that juries are the “judges” of both the law and the facts in a criminal case.

From the 1850s until 1980, that meant jury instructions on the law were considered advisory.

All that changed in 1980 and 1981, with the Court of Appeals’ decisions in Stevenson v. Maryland and Montgomery v. Maryland.

In those rulings, the court said that Article 23 did not mean exactly what it said, and, with a few exceptions, it limited the jury’s role to that of a fact-finder.

After a federal court found that advisory instructions deprived a defendant of due process under the Fourteenth Amendment, the Court of Appeals ruled, in Adams, that the due process argument was waived if the defendant did not object to the instruction at trial.

But the high court on Thursday reversed course and said that Stevenson and Montgomery had announced a new standard.

As a result, the decision enables convicts to seek new trials if they were convicted before 1980 by a jury that was told by the judge that their instructions were advisory and their attorneys either did not object then or their objections were denied as invalid.

Court of Appeals Judge Glenn T. Harrell Jr., in a concurrence and dissent, objected to the court’s overturning of precedent.

“Acknowledging that stare decisis [adherence to precedent] is not an inexorable command, deviation from its principles should be done only in extraordinary circumstances, when this court finds changed circumstances (not just personnel), or increased knowledge that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people,” Harrell wrote.

Judge Sally D. Adkins joined Harrell’s opinion.

Unger was charged in the armed robbery of a Hagerstown store and in the shooting death of city police officer Donald R. Kline, 40, who gave chase on Dec. 13, 1975.

Unger’s trial was moved from Washington County to Talbot County Circuit Court, where a judge instructed the jury that “anything which I may say about the law, including any instructions which I may give you, is merely advisory and you are not in any way bound by it.”

Years of appeals

The jury on Nov. 24, 1976, convicted Unger of felony murder, armed robbery and related gun crimes. The intermediate Court of Special Appeals in September 1977 reversed the convictions for armed robbery and use of a handgun in committing armed robbery.

Unger was sentenced to life in prison for felony murder and 15 years for using a handgun in a murder.

Unger, 62, filed a post-conviction petition in Talbot County Circuit Court in 1997, which was transferred to Washington County Circuit Court. The petition remained pending until May 1, 2006, when Unger, now represented by counsel, filed an amended petition for post-conviction relief based on the trial judge’s improper advisory instruction.

Washington County Circuit Court Judge Donald E. Beachley granted Unger’s petition, and the state appealed.

In July 2009, the Court of Special Appeals reversed, citing the 2008 opinion on waiver in Adams.

Unger then successfully sought review by the Court of Appeals, which heard argument on the case on April 1, 2010.

It decided the case by a 4-2 vote.

Chief Judge Robert M. Bell and Judges Lynne A. Battaglia and Clayton Greene Jr. joined Eldridge’s opinion. Joseph F. Murphy Jr., a member of the court when the case was argued, stepped down from the court last Sept. 30 to go into private practice and did not participate in the court’s decision.



Unger v. State, CA No. 111, Sept. Term 2009. Reported. Opinion by Eldridge, J. (retired, specially assigned). Concurrence and dissent by Harrell, J. Argued April 1, 2010. Filed May 24, 2012.


Did the post-conviction judge properly order a new trial even though defense counsel had failed to object to the trial judge’s advisory-only jury instruction?


Yes; defense counsel did not waive the right to challenge the advisory-only jury instruction on appeal, and the instruction violated defendant’s constitutional right to due process.


Daniel H. Ginsburg and Gary E. Bair for petitioner; Cathleen C. Brockmeyer for respondent.

RecordFax # 12-0524-20 (66 pages).