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Md. high court opens term: Billboards, rap lyrics, CSI effect on docket

The term will mark Mary Ellen Barbera’s eighth and final full session as Court of Appeals chief judge. Barbera, the first woman to serve as Maryland’s top jurist, will reach the state’s mandatory judicial retirement age of 70 next September.

The term will mark Mary Ellen Barbera’s eighth and final full session as Court of Appeals chief judge. Barbera, the first woman to serve as Maryland’s top jurist, will reach the state’s mandatory judicial retirement age of 70 next September.

Maryland’s top court Thursday opens the public sessions of its 2020-2021 term, during which it will consider the constitutionality of Baltimore’s tax on billboard operators, whether a judge properly admitted into evidence the violent rap lyrics of an accused killer and if a judge’s TV drama-inspired jury instruction that prosecutors need not present forensic evidence to prove guilt was a harmless mistake.

The Court of Appeals new session – which history will record as September Term 2020 – officially began Sept. 1. The court will begin holding argument sessions Thursday, via teleconference until further notice due to its efforts to stanch the spread of the COVID-19 virus.

The term will mark Mary Ellen Barbera’s eighth and final full session as Court of Appeals chief judge. Barbera, the first woman to serve as Maryland’s top jurist, will reach the state’s mandatory judicial retirement age of 70 next September.

During the next 10 months, the seven-member court is expected to hear at least 80 appeals and issue its opinions in those cases by Aug. 31, the final day of its term.

The billboard, rap lyrics and jury-instruction cases are among those already on the Court of Appeals’ docket.

In the billboard case, Clear Channel Outdoor Inc. alleges Baltimore’s tax infringes on the operators’ right to free speech in the advertisements and messages they post.

Clear Channel is appealing a lower court ruling that the city permissibly taxed the company’s business of operating billboards and did not restrain the messages they conveyed. The intermediate Court of Special Appeals in January rejected the company’s argument that “taxing the means of speech threatens the exercise of speech.”

The Court of Appeals is scheduled to hear arguments Nov. 6 in Clear Channel Outdoor Inc. v. Director, Department of Finance of Baltimore City, No. 9 September Term 2020.

Clear Channel, which owned more than 95 percent of the city’s billboards as recently as 2017, is challenging the constitutionality of a 2013 Baltimore ordinance that imposes an excise tax on billboard owners who charge fees for outdoor advertising displays of at least 10 square feet. The assessment is $15 per square foot for an electronic outdoor display that changes images at least twice a day and $5 per square foot for any other outdoor display.

Clear Channel has paid its annual assessment each year since the ordinance’s enactment but seeks a refund based on its as-yet-unsuccessful First Amendment challenge.

In its successful petition for Court of Appeals review, Clear Channel likened billboard operators to other industries that provide a forum for advertisements yet have been found to be protected from a targeted tax because it would impinge upon their right to free speech.

“The First Amendment protects billboard operators’ interest in publishing speech for the public,” the company’s lead attorney, Benjamin Rosenberg, wrote in the petition.

Baltimore has responded that its billboard tax does not impinge on speech but is a neutral assessment designed to fix the city’s long-term structural deficit while easing the burden of property taxes on homeowners. The city added it imposes other similar assessments, including a cable franchise fee.

“The ordinance makes no reference to speech,” Assistant Baltimore Solicitor Rachel Simmonsen wrote in the city’s Court of Appeals filing. “The only condition that triggers the tax is the act of charging others to use the billboard, regardless of whether the advertising promotes coffee from McDonald’s, charity for war veterans, or the government’s ‘see something, say something’ campaign, which encourages transit users to report unattended bags and unusual behavior.”

In the rap music appeal, the high court will consider whether a trial judge properly admitted Lawrence Montague’s self-written song’s lyrics — which included “treat his head like a target/you know he’s dead today” —  because it was essentially a confession to the shooting of George Forrester in an Annapolis parking lot three years ago.

In his successful bid for high court review, Montague – who was convicted of second-degree murder — stated through counsel that his “artistic expression” through rap was unrelated to the crime charged and that its improper introduction at trial inflamed the jury against him while providing no substantive evidence of wrongdoing.

Montague is represented on appeal by Ryan J. Travers, an assigned Maryland public defender. Travers is with Skadden, Arps, Slate, Meagher & Flom LLP in Washington.

The Maryland Attorney General’s Office has countered that the lyrics bore a strong connection to the details of the killing and were properly presented to the jury, as the intermediate Court of Special Appeals ruled last year.

The Court of Appeals is scheduled to hear arguments Monday in the case, Lawrence Ervin Montague v. State of Maryland, No. 75 September Term 2019.

The harmless mistake case will mark the Court of Appeals’ latest foray into the propriety of jury instructions designed to combat the “CSI effect” – the theory that jurors have been conditioned by television programs such as “CSI: Crime Scene Investigation” to expect to hear scientific evidence conclusively linking a defendant to a crime.

The resulting, and recurring, legal question is how can judges make it clear to juries that forensic evidence is not required to prove guilt beyond a reasonable doubt while not leaving the impression that jurors should favor eyewitness and victim testimony in the absence of such evidence.

At the high court, Devon Taylor will argue through counsel from the Maryland public defender’s office that the judge’s instruction unfairly tipped the scales in the prosecution’s favor by implying that the jury should give the victim’s testimony added weight in the absence of DNA linking him to the crime. The jury ultimately found Taylor guilty of having robbed that victim.

The intermediate Court of Special Appeals held that the Wicomico County Circuit Court judge erred in giving the “anti-CSI effect” instruction but that the error was harmless because the victim’s testimony was so detailed and damning.

The Court of Appeals is scheduled to hear Taylor’s appeal Oct. 2. The case is Devon Jordan Taylor v. State of Maryland, No. 2 September Term 2020.

According to the victim’s trial testimony, Taylor broke into her well-lighted Salisbury apartment at about 1 a.m. on June 13, 2008, prompting her to grab a 12-inch kitchen knife. She said Taylor grabbed her arm but she twisted free, nicking him with the knife.

Taylor then grabbed her purse from the kitchen counter and fled, according to the victim, who was not named in the Court of Special Appeals’ opinion.

Police soon arrested Taylor based on the victim’s description of him. Officers, however, neither took the knife for forensic testing nor checked for fingerprints on the apartment door.

In closing arguments, Taylor’s trial attorney told the jury that the victim’s testimony was the only evidence the prosecution had.

The judge then instructed the jury that “there is no legal requirement that the state offer scientific evidence as part of its case, such as DNA, fingerprinting, blood typing, fiber analysis, hair follicle analysis, or anything of that nature.”

In addition to robbery and assault, the jury found Taylor guilty of burglary, indecent exposure, malicious destruction of property and theft of under $100. He was sentenced to 30 years in prison.


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