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Law digest – 4/18/13


Criminal Procedure, Communication with juror: The trial court’s substitution of a juror with an alternate at the start of deliberations, without first notifying counsel of the juror communication that prompted that action and seeking counsel’s response or input, was reversible error. Grade v. State, No. 16, Sept. Term, 2007. RecordFax No. 13-0403-20, 25 pages.


Administrative Law, Evidence at police trial board hearing: The police department, in a disciplinary proceeding of an officer, did not violate the rights of the officer by failing to disclose certain information regarding the FBI’s investigation of another officer, because such information was not exculpatory. Baltimore Police Department V. Ellsworth, No. 0005, Sept. Term, 2012. RecordFax No. 13-0325-00, 24 pages.

Criminal Procedure, Right to counsel: The Sixth Amendment right to counsel is not vulnerable to a waiver by inference merely from informed silence or the act of confessing after having been given Miranda rights. Therefore, where defendant was represented by counsel and never expressly waived his Sixth Amendment right to counsel, the state violated that right by failing to notify counsel when an indictment was handed up after defendant had been released on bail, re-arresting the defendant and subjecting him to extended interrogation without counsel present; thus, inculpatory statements made during that interrogation were inadmissible. In re Darryl P., No. 2942, Sept. Term, 2011. RecordFax No. 13-0325-02, 92 pages.

Evidence, Expert testimony: The circuit court abused its discretion in permitting plaintiff’s expert to testify, as he was not qualified and lacked a sufficient factual basis for his testimony. City Homes, Inc. v. Hazelwood, No. 2109, Sept. Term, 2011. RecordFax No. 13-0322-04, 92 pages.

Negligence, Pool safety regulations: Previously approved recreational swimming pools are not exempted from compliance with state and county regulations governing swimming pools; therefore, in plaintiff’s negligence per se action against apartment complex, which alleged that apartment pool failed to satisfy statutory requirements for public swimming pools and sought damages arising from near drowning of plaintiff’s son in apartment pool, circuit court erred in granting summary judgment in favor of apartment complex on basis that statutory regulations did not apply to “previously approved” apartment pool. Paul v. Blackburn Limited Partnership, No. 2727, Sept. Term, 2011. RecordFax No. 13-0325-01, 67 pages.


Constitutional Law, Free speech in schools: When a student wore shirts that displayed the Confederate flag in a community where racial tensions continued to exist, such speech threatened to disrupt school and school officials could prohibit or punish that speech without violating the student’s constitutional rights. Hardwick v. Heyward, No. 12-1455. RecordFax No. 13-0325-60, 28 pages.

Contracts, Arbitration clause: An airport shuttle driver who worked under a franchise agreement with a taxi service must arbitrate his Fair Labor Standards Act and state law wage claims against the taxi service despite a class action waiver in the agreement’s arbitration clause, as this clause was not unconscionable. Muriithi v. Shuttle Express, Inc., No. 11-1445. RecordFax No. 13-0401-60, 17 pages.

Criminal Procedure, Involuntary guilty plea: Defendant’s guilty plea was rendered involuntary, and his due process rights violated, by admitted falsehoods in the sworn affidavit that underpinned the search warrant for defendant’s home and vehicle. U.S. v. Fisher, No. 11-6781. RecordFax No. 13-0402-60, 32 pages.

Criminal Procedure, Sentencing enhancements: Each pornographic picture uploaded by defendant, even if the same image was sent to multiple recipients, was considered to be one image; therefore, when defendant uploaded more than 600 pornographic images, a five-level enhancement was appropriately applied under the U.S. Sentencing Guidelines. U.S. v. Price, No. 12-4010. RecordFax No. 13-0329-60, 9 pages.

Environmental Law, Acquiring corporation’s CERCLA liability: Although acquisition agreement was ambiguous as to whether acquiring corporation assumed liabilities of acquired corporation for past acts under federal environmental act allowing private parties to recover costs of cleaning up hazardous land waste, extrinsic evidence demonstrated such intent, and acquiring corporation was therefore a “potentially responsible person” subject to liability under act. PCS Nitrogen Incorporated v. Ashley II of Charleston LLC, No. 11-1662. RecordFax No. 13-0404-60, 42 pages.