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Justice (still) delayed at Court of Appeals

Another year has passed, and convicted criminals Kevin C. Alston, Tony Lamont Haile and Jaron Tyree Grade are still waiting for word from Maryland’s top court.

Alston has been waiting the longest — since May 3, 2006 — for the results of his challenge to the sentence he received as a felon in possession of a firearm. Haile’s ineffective assistance of counsel case was argued on April 9, 2007. Less than six months later, the court heard Grade’s claim that the judge at his murder trial erred in dismissing a juror without notifying defense counsel.

The three men were featured in The Daily Record’s August 2011 report on the increasingly slow pace at which the Court of Appeals was deciding cases after hearing arguments, and the cases are still pending.

Former Court of Appeals Judge Howard S. Chasanow called the continuing time lag disconcerting.

“There needs to be a balance between deliberation and speed,” said Chasanow, a mediator who served on the high court from 1990 to 1999. “There needs to be some sensitivity to the case.”

[Click here to see an interactive detailing each judge’s last 10 opinions]

Last year, figures supplied by the court showed the average delay had jumped from 105 days in fiscal 2008 to 178 days in fiscal 2010, the most recent data available from the court. That was the longest interval since at least 1996 — at the time.

But the average soared to 243 days in fiscal 2011 before falling to 183 days in fiscal 2012 (that is, the 12 months ending June 30, 2012), according to numbers supplied last week by the court.

The latest result is more than twice the 90-day limit specified in the Maryland Constitution, a provision the court decided was “merely directory” in 1908.

And while six of the seven current members of the court appear to have averages that come close to that limit, the court took a step this summer that makes it impossible to say for certain.

At the end of June, as fiscal 2012 was drawing to a close, the court issued six unsigned opinions in cases that had long been pending. The court issued another five unsigned opinions on Aug. 21, when it returned from its July hiatus.

On average, those 11 opinions were issued 32.7 months after argument.

Before this June, the Court of Appeals had not issued an unsigned reported opinion since Aug. 22, 2008.

Unsigned opinions aside, averages for the last 10 opinions issued by six current members of the court ranged from a low of 2.5 months for Judge Glenn T. Harrell to 3.8 months for Judge Sally Adkins.

Judge Mary Ellen Barbera, whose 11.8-month average last year was the highest of any current member of the court, whittled that down to 3.4 months as of Aug. 29.

Last year’s slowest author overall, retired Judge John C. Eldridge, continued to write for the court but posted a slightly faster pace. Rather than the 24.2-month average in our August 2011 report, he was down to 22.3 months as of Aug. 29, 2012.

Eldridge sits by special assignment of Chief Judge Robert M. Bell, who promised last year he was “giving … some thought” to the problem of delayed opinions.

Bell’s average, which last year stood at just five months, has now ballooned to 31.5 months.

In six of his last 10 cases, the opinion came more than three years after argument. The chief judge has also become more prolific, having written the majority opinion in 10 cases since Aug. 15, 2011, compared with two in the prior 12 months.

Bell declined to comment through court spokeswoman Terri Bolling. Eldridge did not return telephone messages seeking comment, and Barbera did not respond to a request for comment.

‘Judge Per Curiam’

Bell’s average for his last 10 opinions exceeds even that of “Judge Per Curiam,” representing the court’s unsigned opinions. Counting only the last 10, as The Daily Record did for the other judges, the average is 31 months.

“No one wanted to put their names on these opinions, and I think for good reason,” said attorney Irwin R. Kramer. “No one wanted to take responsibility for issuing these delayed opinions.”

The per curiam average includes a range of 16.9 months for Motor Vehicle Administration v. Lipella to more than five years for Application of Cramer.

In Lipella, the court overturned a judge’s ruling that limited the admissibility of sobriety test results. In Cramer, would-be lawyer Nicholas Hamilton Cramer waited from May 31, 2007, until Aug. 21, 2012, to learn he had “failed to meet his burden of proving that he possessed the requisite moral character and fitness to be a member of the Maryland bar.”

Chasanow, the judge-turned-mediator, pointed to one unsigned decision in particular as an example of justice delayed: a one-page opinion on June 25 that overturned an armed-robbery conviction more than three years after argument and almost three years after the court had reversed the conviction of the man’s co-defendant — and for identical reasons.

Pablo Guillermo Lancaster and his brother, Jovan, were tried together and sentenced to 20-year prison terms for a 2005 armed robbery. The high court heard arguments in their cases separately, about three months apart, in 2009. Jovan’s conviction was overturned that August because the trial court had allowed the prosecution to withhold the witnesses’ names from the defense.

The terse opinion in Pablo’s appeal stated only that the conviction was reversed “for the reasons explained” in Jovan’s case.

“That [one-page] opinion wasn’t so deliberative,” Chasanow said. “And in the meantime, the brother who got a reversal was out while Lancaster remained in jail.”

Eight of the other 11 per curiam decisions issued this summer were Attorney Grievance Commission actions, resulting in seven disbarments and an indefinite suspension.

In four of those disbarments, the lawyers were already under suspension or otherwise barred from practicing in Maryland. In the other three, however, the lawyers remained free to practice between argument and the decision — in one case, for more than two years; in the others, for about a year and a half apiece.

Glenn M. Grossman, Bar Counsel for the commission, declined to comment on the time between argument and decision in attorney grievance cases.

Attorney Kramer, though, pointed out that the aim of attorney grievance cases, often stated by the high court, is not to punish the lawyer but to protect the public.

“Protecting the public requires that these cases be turned around more quickly,” said Kramer, of Kramer & Connolly in Reisterstown. “Otherwise, the court is subjecting the public to the danger of incompetent, unfit counsel who should be disbarred. That is a real concern.”

He also said the delays in issuing decisions that sanction lawyers for their lack of diligence “does smell of some hypocrisy.”

“You expect attorneys to do their job in a diligent manner,” Kramer added. “Court, do it yourself. Practice what you preach in your opinions by getting your opinions out earlier.”

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