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Court says state can also appeal retrial ruling

Saying what’s good for the defense is good for the state, a Maryland appeals court has ruled prosecutors can appeal a judge’s decision that a convict should be granted a retrial based on newly discovered evidence and a reasonable showing of “actual innocence.”

The Court of Special Appeals’ decision follows a 2011 ruling by the state’s top court that convicts can appeal a judge’s rejection of their Petitions for Writ of Actual Innocence. The state “has a corresponding and comparable right of appeal from the ‘grant’ of such a petition,” the Court of Special Appeals held Tuesday.

In its 2-0 decision, the intermediate court did more than just accept the state’s appeal of a Baltimore County Circuit Court judge’s grant of actual innocence and a new trial. The Court of Special Appeals overturned Judge S. Ann Brobst’s 2010 grant and reinstated George Cameron Seward’s 1985 conviction and life sentence for rape and assault with intent to murder.

The court’s decision drew praise from Brian S. Kleinbord, who heads the Maryland Office of the Attorney General’s criminal-appeals division.

“The defendant should not be able to collaterally attack a 25-year-old criminal judgment without the state having means of appellate review,” Kleinbord said Wednesday.

Requiring the state to retry an old case — without the opportunity to appeal — places prosecutors “in a very difficult position,” he added, noting that witnesses to the long-ago crime might be unavailable or unable to testify.

Seward’s appellate attorney, Booth M. Ripke, did not return telephone and email messages seeking comment Wednesday. Ripke is with Nathans & Biddle LLP in Baltimore.

Seward had argued in his Petition for a Writ of Actual Innocence that newly discovered evidence — his employer’s payroll records — supported his alibi that he was at work on July 26, 1984, when the victim was raped and shot while her infant was in an adjoining room at their Baltimore County home.

Brobst granted the petition and ordered a new trial after accepting Seward’s contention that “there is a substantial possibility that the result of the trial may have been different” had the jury been shown the records from the dog-grooming store where he worked.

The attorney general’s office appealed Brobst’s decision to the Court of Special Appeals.

Ripke moved to dismiss the appeal, saying the state has no statutory right to appeal a grant of an actual-innocence petition.

Rejecting Ripke’s argument, the Court of Special Appeals noted that the high court in Douglas v. State found that convicts have a right to appeal petition denials, though no such right is stated in Maryland law.

“Because the Court of Appeals, in Douglas, was simply implementing what it deemed to be the intent of the General Assembly (and presumably not just half of that intent), we are impelled to conclude that a right of appeal, from a decision on an actual innocence petition, must be a bilateral right of appeal,” Chief Judge Peter B. Krauser wrote in the court’s reported opinion. “We therefore hold that the state has the same right of appeal from the grant of a Petition for a Writ of Actual Innocence that a petitioner has from the denial of such a petition.”

Having accepted the state’s appeal, the intermediate court went on to rule that Brobst erroneously granted Seward’s petition and wrongfully ordered a new trial based on the payroll records.

The records do not constitute “newly discovered evidence,” which would have warranted granting the petition, the court said. Rather, the records’ existence became known during the 1985 trial when the grooming-shop owner, Louise Stamathis, testified that she had records indicating Seward was at work, the court added.

“Although Seward insists that, at the time of trial, it was not known whether Ms. Stamathis could have found those records, nor whether they would have been exculpatory, that degree of uncertainty does not excuse trial counsel’s failure to make any attempt to compel their production,” Krauser wrote. “In sum, trial counsel made no reasonable and good-faith effort to procure Ms. Stamathis’s payroll records. The records, therefore, do not qualify as ‘newly discovered evidence.’”

Krauser was joined in his opinion by Judge Charles E. Moylan Jr., a retired jurist specially assigned to hear and decide the case.

A third judge, Albert J. Matricciani Jr., heard the case when it was argued Jan. 7 but stepped down from the bench on April 30 to become senior counsel at Whiteford Taylor Preston LLP in Baltimore. He did not participate in the court’s decision.

Brobst died of pancreatic cancer on Dec. 17, 2012. She was 59.