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Editorial Advisory Board: Administering justice

Recently, Chief Judge Mary Ellen Barbera released a “Statement on Equal Justice Under Law” urging “members of the system of justice” to  “assure that our courts do not suffer bias, conscious or unconscious,” and examine “the reasons for disproportionate impact upon people of color.”

The release of this timely statement is laudable and notes that all of us must “contribute in any way we can” to overcome bias. We accept that invitation and contribute four specific suggested changes that we believe would have a significant impact in the criminal justice system and thereby reduce the disproportionate impact upon people of color.

First, interpret Article 26 of the Maryland Declaration of Rights in a manner to provide greater rights to Marylanders rather than consistently adopting the interpretation of the Fourth Amendment in U.S. Supreme Court cases.  Specifically, discontinue allowing pretextual traffic stops that allow police to target those of color and engage in racial profiling when stopping citizens in cars.

Second, expand the voir dire process.  Maryland has the most restrictive voir dire process in the country allowing only questions that will reveal a basis for disqualification. Maryland is one of only a handful of states in this country that does not allow voir dire questioning to inform the exercise of peremptory challenges.

Allowing voir dire to assist in exercising peremptory challenges does not necessarily mean that jury selection can go on ad nauseum, which seems to be the greatest fear of appellate courts. Trial judges will still have discretion to control the process to prevent endless questioning.

It is our belief that unshackling the use of voir dire will provide litigants with a bit more confidence that the jury is truly unbiased. As Judge Glenn T. Harrell Jr. stated in his concurring opinion in Thomas v. State, 369 Md. 202 (2002)“let us, once and for all, join the rest of the country and expand the purpose of voir dire in Maryland to include the informed exercise of peremptory challenges.”

Third, the Court of Appeals should reconsider its holding in several cases that trial judges have discretion to refuse to give a requested “cross-racial identification” instruction that informs jurors, consistent with many studies, that it is more difficult to identify members of a different race than members of one’s own race. There should be a formal cross-racial identification instruction within the Criminal Pattern Jury Instructions that, in cases involving cross-racial identifications and upon request, must be given.

Fourth and finally, trial judges must reexamine their reluctance to question the credibility of testifying police officers. There is a clear perception among criminal defense attorneys and defendants that judges find the testimony of a police officer more credible than that of the defendant simply because he or she is a police officer.

Rare is the case where a trial or motions judge will not credit the testimony of a police officer. Yet, interestingly enough, when asked on voir dire whether one would believe the testimony of a police officer merely because he or she is a police officer, potential jurors who answer affirmatively are automatically disqualified to serve on the jury because they are biased.

We believe that implementing these, or even a few of these, measures would go a long way toward Barbera’s stated goal to “re-examine how we administer justice.”

Editorial Board members James B. Astrachan, Arthur F. Fergenson and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Michael Hayes

Julie C. Janofsky

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Vanessa Vescio (on leave)

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.