Maryland Court of Appeals Chief Judge Mary Ellen Barbera began her tenure as the state’s top jurist and the Judiciary’s lead administrator in July 2013 by pledging to strive for the “equal, fair and timely administration of justice.”
Mandatory retirement will compel her to step down in September having endured an awesome and unforeseeable challenge to that pledge of timeliness over the past 14 months.
Barbera’s handling of the state’s court system during the COVID-19 pandemic since March 2020 will be as much a part of her legacy as the opinions she wrote and the legal reforms she championed during her eight years as chief judge, said attorneys who worked with her and appeared before her.
Barbera, in an unprecedented series of emergency orders, suspended criminal and civil jury trials from March 2020 to April 26, 2021, while preserving the courts’ essential public safety functions in an effort to prevent the spread of COVID-19.
“Nobody signed up for a global pandemic,” Maryland Attorney General Brian E. Frosh said of the challenge Barbera faced.
“I think she steered the courts through it as well as can be done,” Frosh added. “You can’t endanger the lives of the litigants.”
Montgomery County State’s Attorney John McCarthy said Barbera kept court officers informed of her planned emergency orders. He praised her and Maryland District Court Chief Judge John P. Morrissey for keeping the courts open for necessary services, such as protective orders in domestic violence cases and bond reviews for defendants being detained before trial.
“She was dealt a hand that no one was dealt before,” McCarthy said. “She was an extraordinary administrative judge during unprecedented times.”
The suspension of criminal proceedings was especially onerous and controversial for criminal defendants being held in jail because of their constitutional right to a speedy trial. Nevertheless, Barbera’s order suspending jury trials drew praise from Brian Zavin, who heads the Maryland public defender’s appellate division.
“Chief Judge Barbera could not have foreseen the pandemic, but she rose to the occasion and guided the Judiciary through it, never losing sight of the need for Marylanders to have access to justice during this difficult time,” Zavin said.
Barbera is no stranger to the unprecedented.
Her appointment by then-Gov. Martin O’Malley made Barbera the first woman to serve as chief judge of the Court of Appeals.
She succeeded Chief Judge Robert M. Bell, the first Black person to lead Maryland’s top court. Bell had to step down upon reaching the state’s constitutionally mandated judicial retirement age of 70.
Barbera reaches that milestone – known among retired judges as “constitutional senility — on Sept. 10, giving Gov. Larry Hogan the opportunity to appoint the next chief judge.
Barbera, through a spokesman, declined to comment for this article.
Barbera set herself apart from her predecessors soon after her appointment eight years ago by making the revolutionary pledge that the Court of Appeals would issue its decisions during the same court term in which the appeals were heard. Prior to that, the high court often took years to issue decisions, leaving the fates of convicts and civil litigants in limbo.
Barbera has held true to that promise as the court has issued decisions for each case argued in a given term by the next Aug. 31, the last day of the Court of Appeals annual sessions.
“I’m sure that was a huge culture change for the Court of Appeals,” Frosh said of Barbera holding her fellow high court judges to a deadline.
“It took guts to do,” Frosh added. “It was a lot to ask of her colleagues.”
Zavin, the public defender, said Barbera “took seriously the notion that justice delayed is justice denied. Litigants now know that the court will give not just fair consideration to their claims but also expeditious consideration.”
Barbera’s skill as chief judge was also on display when the high court adopted a controversial rule in 2017 designed to prevent judicial officers from imposing bail on criminal defendants beyond their financial means, Frosh said.
As part of its consideration of the rule, the court held a contentious five-hour hearing in January 2017 that pitted the bail industry against Frosh, who viewed high bail assessments as a violation of due process for those too poor to pay. Both sides brought out heavyweight attorneys to press their case: Former U.S. Solicitor General Paul D. Clement argued for the industry and former U.S. Attorney General Eric H. Holder Jr. sided with Frosh.
After the hearing, the seven-member high court met for 75 minutes but agreed only to postpone its consideration of the rule for a month.
In that month, the court went from its lack of consensus to unanimously adopting the rule that judicial officers should look first to impose non-monetary conditions for ensuring that a defendant shows up for trial, including the potential use of ankle bracelets with homing devices or requiring the defendant to check in frequently with a court officer. The rule also called on district court commissioners and judges to assess in each case the amount the specific defendant can afford to pay in bail while ensuring his or her presence at trial.
“It was obvious that she (Barbera) had gone back to her colleagues and worked the issue,” Frosh said.
Barbera’s sensitivity toward the indigent as well as minority groups came to the fore last June during the nationwide protests against police brutality and systemic bias in the justice system.
The chief judge called on the state’s judiciary and its 40,000 attorneys to ensure that racial minorities and the indigent are not shortchanged in the civil and criminal justice system.
“All of us – members of the judicial branch and the legal community – must, as Justice Thurgood Marshall has demanded, ensure that the doors of justice open wide for all people – and that once inside, procedural fairness and due process are a given,” Barbera wrote in a three-page missive she titled “Statement on Equal Justice Under Law.”
“Access to legal services and representation in matters that affect the lives of all the people in our state, whether they have means or not, is essential,” Barbera added. “No one should suffer the degradations that too often accompany poverty – and we, the stewards of the justice system, cannot allow the lack of representation in civil matters to add to the burdens of the poor. Until governments can afford to guarantee representation to all in civil matters, the provision of legal representation pro bono publico – for the public good – and the legal services and information we provide can fill some, but not nearly enough, of the need.”
Zavin, the public defender, said Barbera’s sensitivity toward racial bias was also reflected in her opinion for the high court last year in Rasherd Lewis v. State. The court held that police officers lack probable cause to arrest and search someone simply for smelling of marijuana in light of Maryland’s decriminalization of possession of less than 10 grams of the drug.
The decision came amid social science data showing that Black men are more likely than white men to be arrested for marijuana possession, though use of the drug is the same across the races, Zavin said.
“It (the Lewis decision) is reflective of her view of the Judiciary as taking the lead on this issue of public importance,” Zavin said. “This is an important time in our society. She is well aware of that.”
Barbera has also issued rulings that favored the prosecution.
The chief judge wrote the plurality opinion in a landmark 2019 decision that scrapped the court’s longstanding rule that criminal defendants cannot be convicted based solely on their alleged accomplices’ testimony. The court in State v. Hassan Jones said accomplice testimony need no longer be supported by other, corroborative evidence so long as the judge tells the jury the accomplices’ testimony must be considered with great caution because they may be trying to transfer the blame.
“We hold that, in criminal jury trials, the courts should disturb as little as possible the jury’s role of factfinder, as established under the Maryland Constitution,” Barbera wrote. “This deference to the jury restores the balance between the concerns underlying accomplice testimony and its potential benefits.”
Appellate attorney Steven M. Klepper said Barbera’s “greatest opinion” lies not in criminal procedure or rules of evidence but in the standard Maryland courts should apply in deciding whether a child seeking to stay in the United States rather than be returned to an allegedly neglectful parent abroad qualifies for Special Immigrant Juvenile Status.
“Chief Judge Barbera’s lasting legacy will be her leadership in protecting children in our legal system,” said Klepper, of Kramon & Graham PA in Baltimore and editor in chief of Maryland Appellate Blog.
Barbera, writing for a unanimous court in Romero v. Perez in 2019 said the standard of proving neglect by a preponderance of the evidence in an SIJS case is less exacting than would be required to terminate parental rights under Maryland law.
“Children are a vulnerable cohort, uniquely susceptible to various forms of mistreatment,” Barbera wrote. “Their protection is of the utmost importance to all involved in governance and the administration of justice.”
The influence of Barbera’s opinions extend to a concurrence in which she urged the state’s judiciary to consider easing its outdated deference to eyewitnesses’ identification of criminal defendants because it is often flawed regardless of how certain the witnesses might be. She cited recent social science research that considered the effect stress, disorientation and media accounts have on a witness’s memory.
“I await the day – which cannot come too soon – when this court, prompted by the research on potential fallibility of eyewitness identification evidence, takes meaningful steps to improve Maryland’s pretrial and trial-related procedures, so as to mitigate, if not eliminate, the present concerns that attend the admission of, and weight given to, such evidence in future cases,” Barbera stated in her concurring opinion in Malik Small v. State in 2019.
The chief judge’s sentiments divided prosecutors and defense attorneys.
Prosecutors said a criminal case could rely on eyewitness testimony but only if the state believes and can show that the identification is reliable based on factors long recognized by Maryland courts, including the witness’ familiarity with the defendant before the crime. Defense counsel called eyewitness testimony inherently suspect and easily skewed by, for example, the stress of being a crime victim and police photo arrays that strongly suggest the perpetrator is among those pictured.
Debate over bail
Controversy came early in Barbera’s tenure when a sharply divided Court of Appeals, over her dissent, ruled that criminal defendants have a state constitutional right to counsel at their initial bail hearings.
At the time of the September 2013 decision, lawmakers widely believed the ruling would cost the state $28 million per year to provide the legal assistance. The actual cost has proven to be about $8.5 million, provided annually to a program in which attorneys agree to be on call to represent defendants who ask for counsel at the initial hearings before a district court commissioner.
In its 4-3 decision, the court majority said due process required counsel to be available due to the threat of immediate incarceration for detainees who could not come up with the amount set by the commissioner at the initial bail hearing. The dissenters, led by Barbera, focused on the temporary nature of the commissioner’s decision, which is usually reviewed by a judge within 24 hours.
“The initial bail hearing before a commissioner does not result in a final determination of incarceration because no decision made by a commissioner will lead to a defendant’s languishing in custody without judicial review,” Barbera wrote in DeWolfe v. Richmond. “The very fact of speedy review of the commissioner’s preliminary determination, by a judge at a formal court proceeding where defense counsel can argue against the commissioner’s initial bail decision, negates any realistic concern about unfair procedural process.”
Ronald Weich, dean of the University of Baltimore School of Law, cited Barbera’s dissent and her later support for bail reform in saying that “we see a real advance toward pretrial justice” in the chief judge.
Barbera, a staunch opponent of judicial elections, has failed in her efforts to convince the General Assembly to pass a proposed constitutional amendment denying attorneys the opportunity to run against incumbent circuit court judges.
Barbera said forcing judges to campaign to keep their seats politicizes the one governmental branch that should never be politicized.
“Judges, quite simply, are not politicians,” Barbera told legislators in 2020.
Judges are also bound to avoid even the appearance of partiality, which is difficult to do while raising money – often from the attorneys who appear before them – to defeat an election challenger, Barbera said.
“Where there are contested elections, there is a need for money,” Barbera said. “The only currency in Maryland courts should be, must be, impartiality.”
Supporters of judicial elections have countered that the right to run against sitting judges helped minorities and women diversify through election victories what had been a predominantly white male judiciary through the 1970s.
While governors have increased the circuit courts’ diversity through their appointments, the right to run against a sitting circuit court judge remains necessary in the event future governors are less enlightened in selecting jurists, the supporters said.
Barbera, however, succeeded this year in convincing legislators to pass a proposed amendment to change the name of Maryland’s top court from the Court of Appeals to the Supreme Court. She said many nonlawyers and attorneys from out of state justifiably presume Maryland’s court of last resort would have the name “Supreme” – as is the case in every other state except New York, which also has an ultimate Court of Appeals.
Creating a Maryland Supreme Court would clarify matters for everyone, Barbera said.
The proposed amendment would also change the title of the Court of Appeals’ jurists from “judges” to “justices” and the “chief judge” to “chief justice.”
The proposed amendment will not go before Maryland voters until the fall of 2022. As a result, history will record Barbera as a chief judge and not chief justice.
But titles matter little when measuring a judge’s accomplishments.
“She is a brilliant, talented woman and we were blessed to have her as an administrative judge,” said McCarthy, the state’s attorney. “I think her legacy will be not only her opinions but the way she guided us through the pandemic. That’s a helluva legacy.”