Mary Ellen Barbera begins her third term as chief judge of Maryland’s top court Tuesday, having made clear her desire to limit the number of cases the Court of Appeals hears each session and to have those cases decided by the end of the term.
But more subtle has been a rightward shift in the court’s criminal procedure decisions, siding with the police in warrantless DNA searches and allowing the admission of photo arrays without expert testimony challenging the memory of witnesses. The court has also permitted police to examine screen saver information on flip phones seized without a warrant from someone they have just arrested.
“My sense is that the court is more conservative than it had been,” said Byron L. Warnken, who has written a treatise on Maryland criminal procedure. “The court’s opinions have been generally more consistent with a conservative approach to criminal justice.”
Warnken, a University of Baltimore School of Law professor, added the high court has “been pro prosecution in DNA issues.”
In one DNA case, Barbera wrote for a 4-3 majority in August 2014 that people who voluntarily submit to questioning in a police station relinquish any claim to the perspiration they happen to leave behind on a chair — even when a detective examines the bodily fluid for DNA linking them to a crime. Warnken represented the defendant, Glenn Raynor, in the appeal of his rape conviction before the Court of Appeals and the U.S. Supreme Court, which declined without comment in March to hear the case.
In another DNA case, the Court of Appeals last month held, over two dissenting judges, that police who receive a person’s DNA sample voluntarily during a criminal investigation may use that sample to investigate other crimes unless the person has expressly told them not to. Public Defender Paul B. DeWolfe is considering appealing George Varriale’s case to the Supreme Court.
‘At the forefront’
The significance of the DNA decisions is not lost on retired Court of Appeals Judge Howard S. Chasanow.
“They’re striking out in some new areas, DNA for example,” said Chasanow, who served on the high court from 1990 to 1999. “They’re at the forefront in that.”
On two occasions during Barbera’s tenure as chief, the court also has overturned murder convictions. However, one of those decisions was in a case from which she recused herself and the other was a holdover from when her predecessor, Robert M. Bell, was in charge.
With Barbera recused, the court in August 2014 overturned the first-degree murder conviction and life sentence of a former police sergeant, who stood accused of having shot his mistress to death in 1993 while still on the force. The court ruled 4-3 that James Kulbicki’s trial counsel failed to cross-examine the state’s ballistics expert on flaws underlying the science upon which he linked Kulbicki to the alleged crime scene and gun used to kill 22-year-old Gina Nueslein. Barbera did not publicly disclose the reason for her recusal.
Maryland Attorney General Brian E. Frosh has appealed the decision to the U.S. Supreme Court, which has not yet decided if it will hear the case.
In December 2013, just five months into Barbera’s tenure as chief, the Court of Appeals overturned a double-murder conviction, saying defense counsel should have been allowed to cross-examine a prosecution witness. The court said Bagada Dionas was denied a fair trial because the judge refused to permit defense counsel to ask a purported eyewitness if he believed prosecutors would drop a violation of probation charge in return for his damning testimony.
Arguments in Dionas’ appeal, however, were heard on Jan. 10, 2012, when Bell was still chief. Bell, though having reached 70 and retired from the bench, wrote the court’s unanimous decision in that case.
More apparent, and easier to document than a shift in criminal procedure jurisprudence, is the court’s exercising much more discretion under Barbera in the number of cases it agrees to hear each term.
In the last eight years of Bell’s tenure as chief, 2005 to 2013, the high court agreed to hear an average of about 140.4 cases per term and never fewer than 121 in any single term. By contrast, the court has agreed to hear an average of 88 cases per year in Barbera’s first two terms, with the most being 89 in the 2013-2014 session, according to Maryland Judiciary data.
Meanwhile, Barbera, who became chief in July 2013, has twice made good on her pledge that the court will decide all cases no later than the Aug. 31 after they are argued before the judges.
“The decision to take a few less cases but to get the opinions out faster makes good sense, is a wise decision,” Chasanow said.
With criminal appeals, a quicker decision means less time in legal limbo for defendants appealing their convictions; in civil appeals, a faster ruling could mean millions of dollars for a defendant who is subject to a 10 percent annual interest rate on damages until a final decision is reached, Chasanow said.
But fewer cases heard means fewer petitioners are getting to argue their appeals before the high court, he added.
“There is a tradeoff,” Chasanow said.
The seven-member Court of Appeals court begins its 2015-2016 term with only six active judges, as Judge Glenn T. Harrell Jr. stepped down in June upon reaching the mandatory judicial retirement age of 70. Harrell said he will continue to sit on the high court by special assignment from Barbera until his success is sworn in.
The appellate judicial nominating commission on Friday sent three names to Gov. Larry Hogan as a potential replacement: Court of Special Appeals Judge Michele D. Hotten, Prince George’s County Circuit Judge Sean D. Wallace and attorney Michael J. Winkelman, a partner at McCarthy & Winkelman in Lanham.
Hogan will get a chance to fill another vacancy in April, when Judge Lynne A. Battaglia turns 70.
“Changing two of seven [judges] is a big change, huge change,” Warnken said. “We have no idea where Larry Hogan is coming from. We have no idea what his appointments will look like. That is a huge variable. Will it be based on intellect, will it be based on politics, will it be based on a combination of that?”