Please ensure Javascript is enabled for purposes of website accessibility

State urges Md. high court to overturn Unger decision

ANNAPOLIS — The judges on Maryland’s top court were unusually silent Tuesday as an attorney for the state urged them to overturn their controversial 2012 decision that reopened courthouse doors to many inmates convicted of violent crimes before 1980.

But the Court of Appeals’ seven judges remained just as stoic when a defense attorney pressed them to hold fast to their historic opinion in Unger v. State that trial judges prior to 1980 routinely violated defendants’ constitutional rights to due process by instructing jurors that their judicial instructions were “advisory.”

In Unger, the court held that these instructions, rather than advisory, were in fact constitutionally mandated and informed jurors that guilt must be proven beyond a reasonable doubt.

The court also said defendants whose judges had given the advisory instruction could now challenge their pre-1980 convictions — even if their attorneys had not raised an objection at trial.

At least 87 convicts serving long sentences have been released from prison after challenging the advisory instruction, a figure Assistant Maryland Attorney General Cathleen C. Brockmeyer derided as “the Unger windfall” during her argument before the high court Tuesday.

Brockmeyer said the Unger decision has also harmed the public perception of the Court of Appeals, as many people believe “these inmates are being released on a technicality.”

In addition, she said, the ruling has caused “chaos” in state’s attorneys’ offices as they have tried to determine if they still have the evidence and witnesses available to retry defendants decades after the crime was committed.

But Chief Judge Mary Ellen Barbera, in one of the few comments from the bench Tuesday, told Brockmeyer that “chaos is an expected outcome of change in the law.”

In response, Brockmeyer urged the court to think of the victims of the decades-old crimes who believed their cases to be over.

“This is not an orderly process for these victims,” Brockmeyer said. “They have to relive this.”

The use of advisory instructions ended in 1980 amid a series of Court of Appeals decisions on the role of juries that began with Stevenson v. State.

In overturning Unger, the high court would be restoring its 2008 decision in State v. Adams that a constitutional challenge to an advisory instruction cannot be brought now if it was not raised at the time of the trial.

Defending the Adams decision, Brockmeyer said barring belated constitutional challenges is appropriate because defense attorneys certainly suspected before 1980 that advisory instructions were unconstitutional because they did not make it clear to jurors that guilt had to be proven beyond a reasonable doubt.

It is “indefensible” for an attorney not to have challenged the advisory instruction then, and the convicts should not be able to raise it for the first time now, Brockmeyer said in urging the court to overturn Unger.

Defense attorney Andrew D. Levy countered that the decision in Unger should be upheld because it properly enables convicts to challenge an unconstitutional advisory instruction for the first time many years later.

Without a mandatory instruction on guilt beyond a reasonable doubt, jurors would be hard pressed to deem someone innocent if they believed it more probable than not that he or she committed the crime, Levy said.

“The presumption is that the jury listens to instructions … and then follows them,” he said.

By giving an advisory instruction, judges were essentially telling jurors, “You need not follow what I am telling you,” added Levy, of Brown, Goldstein & Levy LLP in Baltimore.

The high court rendered its Unger decision in May 2012 on a 4-2 vote. A seventh judge, Joseph F. Murphy Jr., had recently left to return to private practice and did not participate in the decision.

In the majority were then-Chief Judge Robert M. Bell and Judges Lynne A. Battaglia, Clayton Greene Jr. and John C. Eldridge, a retired judge.

Eldridge was sitting in for Barbera, who did not publicly disclose the reason for her recusal. However, her husband, Gary E. Bair, now a Montgomery County Circuit Court judge, was an appellate counsel for the petitioner, Merle Unger.

The dissenting judges were Glenn T. Harrell Jr. and Sally D. Adkins.

Adkins, the only judge besides Barbera to ask questions Tuesday, asked Levy what he believed the obligation is for a judge who, having dissented, must now decide whether to vote to uphold the court’s decision.

“We are all obligated to follow the law,” Levy responded. “Once the court announces the decision, it doesn’t matter if the judge agrees or not.”

The case before the high court Tuesday concerned Peter Sutro Waine, whom a Harford County Circuit Court jury found guilty of two counts of first degree murder in 1977 and who was sentenced to two consecutive life sentences. The judge had instructed the jury that “anything that I say to you about the law is advisory only. It is intended to help you, but you are at liberty to reject the court’s advice on the law and arrive at your own independent conclusion on it, if you desire to do so.”

Waine filed for post-conviction relief in 1997, which was denied. He filed a motion in 2007 to re-open his post-conviction proceeding.

Harford County Circuit Judge Emory A. Plitt Jr. granted the motion on June 14, 2012, citing Unger, which had been decided the previous month.

Following a hearing on Aug. 12, 2012, Plitt granted Waine a new trial, again citing Unger.

The intermediate Court of Special Appeals upheld Plitt’s grant of a new trial, prompting the state to seek review by the Court of Appeals.

The Maryland State’s Attorneys’ Association and the Maryland Office of the Public Defender have submitted competing briefs to the Court of Appeals in support of the state and criminal defendants, respectively.

The Maryland Crime Victims’ Resource Center also filed a brief urging the high court to ensure that victims have a say in post-conviction proceedings involving the perpetrator of the long-ago crime.

“Although post-conviction proceedings like this one typically arise out of old convictions and may predate the routine use of the current victim notification procedures and forms, crime victims of ancient crimes are no less worthy or entitled than current crime victims to be ‘treated by agents of the state with dignity, respect, and sensitivity’ during current post-conviction hearings, as required by the Maryland Declaration of Rights, Article 47(a),” the center stated in its brief.

The high court is expected to render its decision in the case, State v. Waine, No. 90, September Term 2014, by Aug 31.