Maryland appellate courts have broad discretion to overturn pre-1980 convictions for violent crimes, as those guilty verdicts in all likelihood resulted from unconstitutional “advisory” jury instructions, the state’s top court ruled Thursday.
In its decision, the Court of Appeals held that appellate panels reviewing these decades-old convictions are not bound to merely remand cases and leave it to the circuit court to determine on review whether the conviction should be thrown out and a new trial ordered.
The high court added it is generally an “abuse of discretion” for a circuit court to reject a convict’s request for review of a pre-1980 conviction.
The Court of Appeals’ decision followed its 2012 ruling in Unger v. State that trial judges before 1980 routinely violated defendants’ constitutional right to due process by telling jurors that their judicial instructions to them were merely “advisory” — including the bedrock admonitions that innocence must be presumed and guilt must be proven beyond a reasonable doubt.
“It is virtually certain that a court during that era would have given such an instruction and not effectively nullify it immediately thereafter by informing the jury of the binding nature of its instructions on constitutional matters,” Chief Judge Mary Ellen Barbera wrote for the high court. “Only in such an extraordinary case – if ever there might be one – could it perhaps be a proper exercise of discretion to deny a motion to reopen post-conviction proceedings on an Unger claim.”
The high court reaffirmed its Unger decision last year in State v. Waine. In both cases, 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 intermediate 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.”
In its decision Thursday, the high court affirmed the Court of Special Appeals’ reversal of James Leslie Adams-Bey Jr.’s 1978 conviction and life sentence in Anne Arundel County Circuit Court for first-degree rape and related offenses. The appellate courts awarded Adams-Bey a new trial.
The appeals followed a circuit court judge’s post-Unger denial of Adams-Bey’s motion for post-conviction relief based on the trial judge’s jury instructions.
At Adams-Bey’s trial, the judge told the jurors they were being given “advisory instructions” and that they were “advised that in this state an accused is entitled … to the presumption of innocence.”
In its appeal to the high court, the Maryland attorney general’s office argued that the judge’s instructions, while not constitutionally pristine, were permissible. These instructions were materially different from others of that era, in which juries were routinely told the instructions were not binding, the office stated. Thus, Adams-Bey’s case should be remanded to the circuit court for its consideration and not simply overturned by the appellate court, the office added.
But the Court of Appeals rejected the state’s argument, saying the trial judge’s instructions cannot be excused simply because those given in other courts were “more overtly unconstitutional.” The Court of Special Appeals was well within its authority to overturn the conviction, the high court added.
“The jurors were granted permission to apply the law as they found it to be, and the trial court repeated the advisory nature of its instructions when it instructed on the presumption of innocence and the state’s burden of proof beyond a reasonable doubt,” Barbera wrote in explaining the instruction’s infirmities. “And, in particular, the court declined to inform the jury of the binding nature of the court’s instructions on matters of bedrock constitutional law.”
Judge Shirley M. Watts joined the high court’s judgment for Adams-Bey but not Barbera’s opinion.
“[A]lthough the majority determines that the instructions in this case were ‘advisory instructions,’ the majority opinion is not clear that, going forward, trial and appellate courts must engage in a similar determination that alleged advisory instructions are indeed ‘advisory instructions’ before granting relief,” Watts wrote. “What is clear is that, when confronted with Unger claims, trial courts and the Court of Special Appeals must review the jury instructions and determine whether they were indeed ‘advisory instructions’ that Unger proscribes. The mere allegation that instructions were ‘advisory instructions,’ or that the instructions were similar to those that the trial court gave in Unger, is not sufficient to establish structural error.”
Raquel M. Coombs, a spokeswoman for the attorney general’s office, said that, “while we are disappointed in the Court of Appeals’ decision, we are pleased that the court provided guidance to the circuit courts on the advisory jury instruction issue.”
Assistant Maryland Public Defender Jeffrey M. Ross, Adams-Bey’s appellate counsel, did not return a telephone message seeking comment Thursday afternoon.
The Court of Appeals rendered its decision in State v. James Leslie Adams-Bey Jr., No. 105, September Term 2015.