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On ‘thin blue line’ imagery at trials, Maryland appeals court issues caution

A criminal defendant’s right to an unbiased jury is not necessarily violated by the courtroom presence of a bailiff wearing a face mask emblazoned with the pro-police “thin blue line” flag during trial, Maryland’s second-highest court ruled Wednesday in upholding a child abuse conviction.

But the Court of Special Appeals also called it a good idea for circuit court judges to prohibit the controversial symbol in their courtrooms, particularly in cases alleging police brutality or when the credibility of an officer’s testimony is in question.

In its reported 3-0 decision, the Court of Special Appeals rejected arguments from Everett Smith’s appellate attorney that the thin blue line symbol “inherently” indicates the trial court’s bias toward the prosecution in violation of a defendant’s constitutional right to due process.

The appellate court said jurors would generally not be surprised or influenced by a law enforcement officer, such as a bailiff, wearing a symbol that supports the police.

“Notably, the context in which the ‘thin blue line’ flag was displayed in this case must be considered,” Judge Stuart R. Berger wrote for the court. “The thin blue line flag at issue in this case appeared on the face mask of a uniformed and armed law enforcement officer serving as a courtroom bailiff. Inasmuch as the thin blue line flag is seen by some as a symbol of general support for law enforcement, a reasonable juror may have inferred that the law enforcement officer wearing the thin blue flag face mask was doing so in order to display his pride in being a law enforcement officer.”

The thin blue line symbol depicts the American flag with a blue line, instead of a white stripe, under the 50 stars. The symbol has sparked controversy due to its ties to the pro-police Blue Lives Matter movement, which formed in response to the Black Lives Matter protests against police brutality.

The Court of Special Appeals noted the controversy and said its decision permitting the symbol’s display would likely not apply to cases where police actions and testimony are at issue.

“We do not suggest that a bailiff wearing a thin blue line flag mask is a good practice, nor do we suggest that prejudice can never arise in different circumstances in which actual prejudice rather than inherent prejudice is alleged,” Berger wrote.

“Indeed, a litigant may have a reasonable argument that a bailiff wearing a thin blue line face mask caused actual prejudice in a case involving, for example, allegations of excessive force or other misconduct by a law enforcement officer, or in a case where a law enforcement officer’s credibility is weighed against that of a layperson,” Berger added. “Our opinion in this case does not foreclose such an argument.”

The court advised judges to be safe rather than sorry.

“(A) prohibition on the wearing of thin blue line symbols by courthouse staff may be a prudent prophylactic measure to avoid issues on appeal, as well as to err on the side of caution to ensure litigants’ right to a neutral and fair tribunal,” Berger wrote.

Assistant Maryland Public Defender Rachel M. Kamins, Smith’s appellate attorney, declined to comment on the ruling. She said no decision has been made regarding an appeal to the Court of Appeals.

The Maryland Office of the Attorney General also declined to comment.

At Smith’s trial in Kent County Circuit Court last year, his defense counsel objected to the symbol on the bailiff’s face mask.

“This particular emblem is used by both members of the police (and) the public to indicate a political statement in support of police and in contradiction to some of the movements, social movements we see today,” Ryan E. Ewing, a public defender, told Judge Harris P. Murphy. “Having that representation on the facial coverings is making a political statement in a place that is supposed to be unbiased and providing a neutral and fair place for his trial today.”

Murphy overruled the objection, citing the bailiff’s constitutional right to free speech.

The jury found Smith, who is Black, guilty of second-degree child abuse and second-degree assault for having hit his teenage daughter. He was sentenced to 15 years in prison, with all but five years suspended, and five years’ probation.

Smith then sought review by the Court of Special Appeals.

The appellate court upheld the conviction not on First Amendment grounds but based on its determination that the symbol “did not constitute inherent prejudice necessitating a new trial.”

Berger was joined in the opinion by Judges Gregory Wells and Laura S. Ripken.

The court’s decision followed Maryland District Court Chief Judge John P. Morrissey’s May directive that jurists and court staff not wear any apparel that displays the “blue line” of support for law enforcement while they are on duty or on court property, even though trials in his courtrooms are decided by judges not juries.

Morrissey, who acted at the urging of Maryland Public Defender Paul B. DeWolfe, said such displays undermine the judiciary’s compelling need to avoid even the appearance of favoritism toward a cause.

No such wide-ranging directive has been sent regarding the state’s 24 circuit courts.

The Court of Special Appeals rendered its decision in Everett Smith v. State of Maryland, No. 1273 September Term 2020.