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Killer’s appeal comes down to judge’s notes or trial transcript

Md. high court grants post-conviction review

Court of Appeals Chief Judge Mary Ellen Barbera. (File photo)

Court of Appeals Chief Judge Mary Ellen Barbera. (File photo)

A convicted killer’s bid for a new trial could depend on whether a judge’s notes or a court reporter’s transcript is to be believed.

Maryland’s top court on Friday unanimously ordered a review of Mark Edmund Christian II’s February 2012 trial to determine if now-retired Harford County Circuit Judge Stephen Waldron properly instructed the jury, as he states in a recent affidavit, or delivered a constitutionally invalid instruction, as reflected by the trial transcript.

The written transcript recorded Waldron as having told the jurors they are “judges of both the law and the facts,” an instruction at odds with the Maryland high court’s May 2012 admonition in Unger v. State that telling jurors – the fact-finders – that they are judges of the law constitutes a “structural error” warranting reversal. Waldron, in his affidavit, stated he gave a different, proper instruction and that the court reporter posted outdated instructions rather than recording the instructions as given.

In sending the case back for post-conviction review, the Court of Appeals said the prosecution and Christian’s defense counsel must have an opportunity to present documents and witnesses to enable the circuit court  to determine “what the trial judge did, or did not, include in his instructions to the jury.”.

“The fight does continue for Mr. Christian,” his appellate attorney, Rosa Gross, said Monday. “We’ll just have to see what happens over there and see where it goes.”

After receiving Waldron’s instructions, the Harford County Circuit Court jury convicted Christian of first-degree murder in the 2007 shooting death of Robert Hemphill at an Aberdeen motel. The jury also found Christian guilty of attempted armed robbery, conspiracy to commit armed robbery and use of a handgun in a violent crime.

Waldron sentenced Christian to life in prison plus 30 years.

The Court of Appeals’ order for review displaced a lower court’s ruling that Christian’s convictions and sentence be overturned and a new trial given based on the improper instruction as recorded in the transcript.

In that now-vacated ruling, the Court of Special Appeals declined to accept the state’s argument that the transcript was incorrect. The intermediate court said Maryland’s procedural rules require that a correction to a court reporter’s transcript be by affidavit and the state had not provided one.

After the ruling, the state provided the judge’s affidavit to the Court of Appeals in time for oral arguments in April.

At arguments, Gross argued that the judge’s affidavit should be barred due to belated filing by the state. To permit the state to cite the affidavit would be unfair to Christian because witnesses’ memories of what the judge said at the 2012 trial would be faulty, added Gross, of A.Y. Gross LLC in Pikesville.

But the Court of Appeals said the state did not act improperly, noting that prosecutors alerted lower courts of the trial judge’s position, though the prosecution did not yet have his affidavit.

“Nothing in the record suggests that, prior to the trial judge’s communication, the state knew or should have known about this issue and declined to act on it,” Chief Judge Mary Ellen Barbera wrote. “We glean no ‘unreasonable delay’ from such facts.”

As for faulty memories, the Court of Appeals said the justice system is designed to protect against them through cross-examination.

“All memory is inherently suspect,” Barbera wrote.

“Every party in court faces that reality,” she added. “Were memory issues alone enough to preclude further fact finding, the judicial system’s ultimate objective of ‘ascertaining the truth’ would be compromised.”

The Court of Appeals rendered its decision and ordered post-conviction review in State of Maryland v. Mark Edmund Christian II, No. 68, September Term 2018.

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