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Md. high court weighs how Unger appeals should be handled

ANNAPOLIS – Attorneys for a convicted rapist and the state argued Thursday over whether Maryland appellate courts should routinely order new trials for inmates convicted before 1980 of violent crimes or if their appeals should be uniformly reviewed by circuit courts to determine if the convicts’ rights were violated and a retrial is in order.

The argument, before the Maryland Court of Appeals, addressed the appropriate procedural process following the state high court’s rulings in 2015 and 2012 that trial judges before 1980 routinely violated defendants’ constitutional right to due process by telling jurors that judicial instructions to them were “advisory.”

Assistant Maryland Public Defender Jeffrey M. Ross said the intermediate Court of Special Appeals can generally order new trials in these cases, as the high court clearly stated in its decisions that fair trials were rare until 1980 due to the flawed instructions.

But Assistant Maryland Attorney General Cathleen C. Brockmeyer said the issue of whether faulty jury instructions denied specific defendants their constitutional rights must be proven at a circuit-court hearing rather than presumed by the Court of Special Appeals.

Appearing before the high court, Brockmeyer said the Court of Special Appeals was wrong to order a new trial rather than a circuit-court hearing in James Leslie Adams-Bey Jr.’s appeal of his pre-1980 conviction for first-degree rape.

She said the Court of Appeals’ 2012 decision in Unger v. State, which the judges reaffirmed in August, addressed solely the jury instructions’ unconstitutionality and did not mandate new trials for the convicts.

The decision to grant new trials should be left to circuit-court judges after they review whether a conviction in fact resulted from a constitutionally flawed instruction, according to Brockmeyer. By summarily ordering a new trial, the Court of Special Appeals has “usurped” the circuit court’s discretion, she said.

Prior to 1980, jury instructions were commonly – but not uniformly – unconstitutional and did not always result in unfair convictions, Brockmeyer said. This uncertainty provides “all the more reason to leave it to the circuit court” to review the trial record in each case, she said.

Ross countered that the high court in Unger, and again last year in State v. Waine, held that the advisory instructions before 1980 allowed jurors “to disregard bedrock principles of due process,” including guilt beyond a reasonable doubt. In applying Unger and Waine, the Court of Special Appeals therefore may order a new trial without deferring to the circuit court, Ross said.

The appellate court “properly exercised its statutory review authority” in ordering a new trial for Adams-Bey, Ross added.

A middle ground?

Several Court of Appeals judges, in questioning the lawyers, indicated the solution might be a middle ground in which the Court of Special Appeals can either order a new trial or remand the case to the circuit court for its consideration of whether to hold a retrial.

Chief Judge Mary Ellen Barbera said a remand would be appropriate in the “unlikely circumstance” that a pre-1980 jury instruction did not violate a defendant’s right to due process. Similarly, an appellate-court order for a new trial should be rendered when “no doubt” exists that the advisory instruction denied the defendant a fair trial.

Judge Lynne A. Battaglia, a retired jurist sitting by special assignment, said the Unger-related appeals should be decided on a case-by-case basis to determine if the flawed jury instruction resulted in a constitutionally unfair trial.

“It’s not one size fits all after Unger,” Battaglia said.

In Unger and Waine, the Court of Appeals held the advisory jury instructions were unconstitutional because they failed to inform 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.

The high court’s decisions have resulted in the Court of Special Appeals being inundated with review requests from inmates whose convictions date to the 1970s. More than 85 convicts serving long sentences have been released from prison after challenging the advisory instruction, a figure the Maryland attorney general’s office derided last year as “the Unger windfall.”

The Court of Appeals is expected to render its decision by Aug. 31 in the case State v. James Leslie Adams-Bey Jr., No. 105, September Term 2015.

The top court heard Thursday its last scheduled oral arguments of the current term. The court is scheduled to sit next on Sept. 1, the opening day of its 2016-2017 term.