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Law digest – 7/16/12


Criminal Procedure, Post-conviction relief: Defendant was not entitled to post-conviction relief to re-litigate the allegation that the trial court erred by excluding expert testimony, because that issue had already been finally litigated and cases decided after his trial did not establish any previously unrecognized constitutional standard. Greco v. State, No. 86, Sept. Term, 2011. RecordFax No. 12-0626- 20, 43 pages.

Labor & Employment, Respondeat superior: Where fatigued employee fell asleep at the wheel on his way home from work, causing an accident, his employer was not liable to a third party. Barclay v. Briscoe, No. 41, Sept. Term, 2011. RecordFax No. 12-0627-20, 33 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction where attorney violated several Rules of Professional Conduct and had been suspended indefinitely for similar misconduct in other cases. Attorney Grievance Commission v. Shakir, Misc. Docket AG No. 8, September Term, 2009. RecordFax No. 12-0625-24, 12 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction where attorney abandoned his representation of his client and failed to cooperate with Bar Counsel. Attorney Grievance Commission v. Park, Misc. Docket AG No. 15, September Term, 2009. RecordFax No. 12-0625-23, 18 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction where attorney violated multiple Rules of Professional Conduct in connection with nine separate clients and matters. Attorney Grievance Commission v. Garrett, Misc. Docket AG No. 13, September Term, 2010. RecordFax No. 12-0625-22, 22 pages.


Civil Procedure, In banc review: An in banc panel of the circuit court lacked jurisdiction to consider the merits of a husband’s request to dissolve a consent judgment that barred him from contacting his wife, and to vacate the contempt order that was issued when he breached that consent judgment; therefore, there was no final judgment that could be reviewed on appeal. Remson v. Krausen, No. 2187, Sept. Term, 2010. RecordFax No. 12-0628-05, 20 pages.

Civil Procedure, Service of process: Substituted service on SDAT was sufficient against a corporation that had forfeited its charter, had no resident agent, and whose only corporate director was deceased. Thomas v. Rowhouses, Inc, No. 2102, Sept. Term, 2010. RecordFax No. 12-0628-04, 19 pages.

Criminal Procedure, ‘CSI effect’ jury instructions: In defendant’s criminal trial for weapons possession, court erred in instructing the jury that there was no legal requirement that the state utilize any specific investigative technique or scientific test to prove its case. Samba v. State, No. 1895, Sept. Term, 2010. RecordFax No. 12-0628-00, 33 pages.

Criminal Procedure, Plea agreements: The circuit court properly denied defendant’s motion to enforce the terms of an oral plea agreement, which was superseded by a later written agreement, and was not clearly erroneous in concluding that the defendant failed to fulfill his duties within a reasonable time. Y.Y. v. State, No. 3025, Sept. Term, 2009. RecordFax No. 12-0627-05, 42 pages.

Criminal Procedure, Search and seizure: Public school employee had no reasonable expectation of privacy in his unlocked work desk, which was owned by school, was in centrally located area, and which employee could have taken steps to secure but did not. Walker v. State, No. 2733, Sept. Term, 2010. RecordFax No. 12-0628-02, 40 pages.

Negligence, Assumption of risk of medical malpractice: Absent exceptional circumstances, an assumption of risk defense is not available to a physician in a suit for medical malpractice in Maryland. Schwartz v. Johnson, No. 2556, Sept. Term, 2009. RecordFax No. 12-0627-00, 20 pages.


Civil Procedure, False Claims Act: The district court erred in ruling that, as state agencies, the defendants were not “persons” subject to suit under the False Claims Act, without first considering an arm-of-the-state analysis under the Eleventh Amendment. U.S. ex rel. Jon H. Oberg v. Kentucky Higher Education Student Loan Corp., et al., No. 10-2320. RecordFax No. 12-0618-61, 9 pages.

Environmental Law, Finding of no significant impact: In concluding that no Environmental Impact Statement was necessary before approving a permit to expand the number of boat slips in marine refuge area, the Army Corps of Engineers lacked any reasonable basis for finding that a no-wake zone was being adequately enforced or that its efficacy was otherwise assured. Friends of Back Bay v. U.S. Army Corps of Engineers, No. 11-1184. RecordFax No. 12-0618-60, 16 pages.

Labor & Employment, Americans with Disabilities Act: Plaintiff who brought an employment discrimination claim under the ADA exhausted her administrative remedies despite not filing her proposed accommodation with Equal Employment Opportunity Commission, because her administrative and judicial claims were reasonably related. Sydnor v. Fairfax County, No. 11-1573. RecordFax No. 12-0619-60, 11 pages.