Criminal procedure — Motion to reopen post-conviction proceeding — Unger and Waine
In 2012, Neil Cohen filed a motion, in the Circuit Court for Baltimore County, to reopen his post-conviction proceeding to consider his “Unger claim.” In Unger v. State, 427 Md. 383 (2012), the Court of Appeals held that the trial court had committed reversible error by instructing the jury that it “is the Judge of the Law as well as the facts,” that the court’s instructions to it were “merely advisory,” and that it was “not in any way bound by” the court’s instructions. Id. at 392 (italics omitted).
Because the trial court at Cohen’s 1978 trial gave a similar “advisory only” jury instruction, Cohen, relying on Unger, sought to reopen his post-conviction proceeding and have his convictions vacated. After the circuit court denied Cohen’s motion, he filed an application for leave to appeal asserting that the circuit court had abused its discretion in denying his motion.
We granted the application for leave to appeal and transferred the case to the regular appeal docket of this Court.
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