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Md. Court of Appeals opens new term with higher profile

The members of the Maryland Court of Appeals. From left, Justices Michelle D. Hotten, Robert N. McDonald, Clayton Greene Jr., Mary Ellen Barbera (the chief justice), Sally D. Adkins, Shirley M. Watts and Joseph M. Getty. (File Photo)

The judges of the Maryland Court of Appeals. From left, Michele D. Hotten, Robert N. McDonald, Clayton Greene Jr., Mary Ellen Barbera (the chief judge), Sally D. Adkins, Shirley M. Watts and Joseph M. Getty. (File Photo)

ANNAPOLIS — Its low profile recently removed by a podcast and politics, Maryland’s top court will open the public sessions of its 2018-2019 term Thursday, a session during which it will consider among its approximately 150 appeals whether an internet sensation’s murder conviction should be reinstated.

The Court of Appeals, during its September 2018 term, will also weigh if incriminating text messages between spouses are “marital” communications that cannot be introduced at the husband’s criminal trial. In addition, the court will consider whether the appropriate liability test in a medical-malpractice case is not what a “reasonable person” would have done but how a “reasonable doctor” would have acted.

The Court of Appeals, which arguably has been best known for its low public profile, drew international attention with its decision to hear the state’s argument that Adnan Syed — the focus of the “Serial” podcast — received flawed but not constitutionally ineffective assistance from his trial counsel.

Specifically, the high court will review a lower court’s conclusion that the now-deceased defense attorney’s failure to investigate a potential alibi witness violated Syed’s constitutional right to effective assistance of counsel. The Court of Special Appeals ruled in March that the Sixth Amendment violation warrants a new trial for Syed, prompting the state’s appeal.

The Court of Appeals has not announced a date to hear arguments in State of Maryland v. Adnan Syed, No. 24 September Term 2018.

The high court, an independent body that prides itself on being divorced from politics, became a topic last month of Democratic gubernatorial candidate Ben Jealous’ campaign to unseat the incumbent, Larry Hogan, a Republican.

Jealous noted in a tweet that four high court judges will reach the state’s mandatory judicial retirement age of 70 during the next four year gubernatorial term and stated that “given what’s happening @SCOTUS, we cannot afford to let the GOP pick our judges too.”

Jealous’ tweet drew criticism from a leading member of his own party when state Sen. Robert A. “Bobby” Zirkin said there is no comparison between gubernatorial appointments to the Maryland Court of Appeals – which have historically been nonpartisan – and presidential selections to the U.S. Supreme Court, which have evoked brutal partisan battles, including one currently over Republican President Donald Trump’s pending nominee, Brett Kavanaugh.

“The (Maryland) Judiciary has remained non-political – the way it should be,” said Zirkin, D-Baltimore County and a practicing attorney. “For Jealous to make this an issue is irresponsible.”

The four jurists approaching age 70 are Chief Judge Mary Ellen Barbera and Judges Clayton Greene Jr., Robert N. McDonald and Joseph M. Getty.

Zirkin’s non-political view of judicial appointments will be on display this fall, as Court of Appeals Judge Sally D. Adkins said she will step down from the bench on Oct. 31.

Hoping to succeed Adkins are Court of Special Appeals Judge Christopher B. Kehoe, Dorchester County Circuit Judge Brett W. Wilson and attorney Christopher F. Drummond, a Centreville solo practitioner, who have applied for the soon-to-be-vacant Eastern Shore seat on the high court.

The Appellate Judicial Nominating Commission will vet the candidates and submit its recommendations from among the trio to Hogan in the fall.

The governor need not choose the nominee from among those recommended, but it has been gubernatorial practice for nearly 50 years.

Retired Court of Appeals Judge Joseph F. Murphy Jr. said Tuesday that the high court’s seven jurists are likely unfazed by the international and political attention.

“Our Court of Appeals has managed to stay above that sandbox mentality,” said Murphy, a partner at the law firm Silverman Thompson Slutkin White LLC in Baltimore. “I’m sure that nobody’s happy about it, but I don’t see anybody getting excited about it at the same time.”

Amid the podcast-spurred attention, the gubernatorial campaign and a looming vacancy, the high court will review a Court of Special Appeals ruling that text messages between spouses are presumed to be confidential and may not be used as evidence in a criminal trial except in extraordinary circumstances.

Kevin Sewell’s conviction – and life without parole sentence — was based in large part on the damning text messages he sent his wife and which were read repeatedly by the prosecution at trial, the Court of Special Appeals said in its 3-0 decision. The prosecution failed to overcome the presumption that the defendant intended the texts to be private communications with his wife, the court added in its reported opinion in March.

“Simply because the communications were over a cell phone in the nature of text messages does not rebut the presumption,” wrote Judge Irma S. Raker, a retired jurist sitting by special assignment. “The state’s argument that any person could have seen the messages is inadequate. Cell phones have mechanisms to lock access to texts.”

In these texts, Sewell told his wife of his increasing frustration with his nephew’s whining and biting and that he had bitten the child back so hard that he must tell the mother a story of how the bruises occurred. Sewell also refers to the child by profanities in the text messages, about which the wife testified in return for being given immunity from prosecution based on her testimony.

A medical examiner listed the child’s cause of death as shaken or slammed syndrome with additional trauma to the chest, abdomen, back and extremities.  The autopsy also mentioned bite marks.

The prosecution spent 15 percent of its closing argument on the text messages, telling the Worcester County Circuit Court jury that “cell phones can be a blessing and a curse …. For (Sewell) they were a curse on May third of 2015 because you were able to, we were all able to, see in great detail what occurred during the morning into the afternoon hours of Sunday, May third.”

In addition to first-degree murder, the jurors found Sewell guilty of first-degree child abuse and neglect of a minor, prompting his appeal to the Court of Special Appeals.

“The text messages exchanged between appellant (Sewell) and his wife were marital communications” and presumed confidential, Raker wrote in overturning the convictions. The state sought review by the high court.

The Court of Appeals is scheduled to hear arguments Oct. 4 in State of Maryland v. Kevin Sewell, No. 20 September Term 2018.

With regard to civil litigation, the high court will review a Court of Special Appeals decision that jurors in medical-malpractice cases must determine not how a reasonable person would have treated the patient but what a reasonable physician in the relevant specialty should have done.

While the “reasonable person” standard is generally appropriate in assessing negligence in personal-injury cases, specialized fields in medicine require a heightened standard that respects the skill of doctors, the Court of Special Appeals said in its reported decision last September.

The intermediate court ruled Baltimore County Circuit Judge Susan Souder gave an improper “reasonable person” instruction to the jury that later found neurosurgeon Reginald J. Davis needlessly and inappropriately removed damaged discs from Mark Armacost’s cervical spine as part of fusion surgery. Armacost, who developed a bacterial infection following the controversial surgery, was awarded $329,000 in damages.

The Court of Appeals is scheduled to hear the patient’s appeal Oct. 9 in Mark Armacost v. Reginald J. Davis, No. 69 September Term 2017.

The high court’s decisions in these cases, as well as in the others it hears this session, are expected by Aug. 31, the final day of its September 2018 term.

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