Maryland’s top court will consider whether a criminal defendant’s right to an unbiased jury is inherently violated by the courtroom presence of a bailiff wearing a face mask emblazoned with the pro-police “thin blue line” flag during trial.
The Court of Appeals agreed Wednesday to review a lower court decision that the symbol does not necessarily indicate the trial court’s bias toward the prosecution and law enforcement in violation of a defendant’s constitutional right to due process.
In its controversial ruling, the Court or Special Appeals said last fall that jurors would not necessarily be surprised or influenced by a bailiff or other law enforcement officer wearing the pro-police symbol. The court, however, added it would be a good idea for circuit court judges to prohibit the thin blue line imagery in their courtrooms, particularly in cases alleging police brutality or when the credibility of an officer’s testimony is in question.
But attorneys pressing the appeal of a man convicted of child abuse has urged the high court to hold that the “provocative pro-police political symbol” should never be displayed during a criminal trial.
“Contrary to the intermediate appellate court’s holding, exhibiting patent support of law enforcement and, by extension, the prosecution, with a symbol depicting police as the line between civilized society and criminals voided the court’s neutrality and sabotaged petitioner’s right to due process and a fair trial,” Assistant Maryland Public Defenders Rachel M. Kamins and Michele D. Hall wrote in Everett Smith’s successful petition for Court of Appeals review.
The thin blue line symbol depicts the American flag with black instead of red stripes and with a blue line, instead of a white stripe, under the 50 stars. The symbol is linked with the pro-police Blue Lives Matter movement, which formed in response to the Black Lives Matter protests against police brutality.
The controversy creates an “unacceptable risk that the jury would see the mask as a pro-police symbol, as an emblem of white supremacy, or as opposition to the Black Lives (Matter) movement, given the flag’s highly publicized association with matters political, hateful, and divisive,” Kamins and Hall wrote. “Finally, the Court of Special Appeals failed to appreciate that even the thin blue line’s most innocuous interpretation – what the court characterized as ‘pride in being a law enforcement officer,’ does not belong on display in what is supposed to be the non-political, viewpoint-neutral environment of a criminal courtroom.”
Assistant Maryland Attorney General Derek Simmonsen countered that the thin blue line display exhibits no more bias toward the prosecution than does the routine presence of law enforcement officers in courtrooms.
“The thin blue line flag, standing alone, signals the same type of general support for law enforcement as does a uniform and neither the uniform nor the flag promotes a ‘pro-prosecution’ message,” Simmonsen wrote in his unsuccessful request that the high court not hear the appeal.
“While a judge is presumed to be an entirely neutral arbiter of a case, any reasonable juror would assume that a uniformed bailiff likely views their profession in a positive light,” Simmonsen added. “Such an unsurprising sentiment does not create a substantial risk of an unfair trial.”
The Court of Appeals is scheduled to hear arguments in the case in June and render its decision by Aug. 31. The case is docketed at the high court as Everett Smith v. State of Maryland, No. 61 September Term 2021.
At Smith’s trial in Kent County Circuit Court in 2020, 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.
In its reported 3-0 decision, 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.”
Judge Stuart R. Berger wrote the opinion, which was joined by Judges Gregory Wells and Laura S. Ripken.
The appellate court’s decision followed Maryland District Court Chief Judge John P. Morrissey’s directive last May 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 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.