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Editorial Advisory Board: The Belton opinion is disrespectful

In a case of first impression, Terrence Belton is seeking review by the Court of Appeals of a reported opinion of the Court of Special Appeals that contains commentary many readers would consider to be racist and biased against both Belton and his mother.

An amicus brief in support of the certiorari petition, filed by the Public Justice Center and joined by numerous groups, (including the ACLU of Maryland, the League of Women Voters of Maryland, the University of Maryland School of Law Clinical Program, the Howard University School of Law Civil Rights Clinic, and the Maryland Criminal Defense Attorneys’ Association), takes great pains to explain how the opinion is “racist” regardless of the author’s intent or the opinion’s lack of overtly racist language.

The opinion compares Belton, a Black defendant in a homicide case, to the monster Grendel in the epic poem “Beowulf.” This allusion to a Black man as subhuman and predisposed to violence is a racist trope that is centuries old. The opinion goes on to contrast Belton’s mother to Whistler’s mother in the famous portrait, suggesting that, because the mother was a young and “vigorous” (not “decrepit”) drug dealer in a blighted neighborhood of Baltimore, she, unlike Whistler’s pure and gentle (white) mother, was unworthy of sympathy.

By making racially charged judgments about the value of some lives over others, the opinion is disrespectful to both Belton and his mother in a way that calls into question the appellate court’s appearance of impartiality.

Not only did two other judges join Judge Charles E. Moylan Jr.’s opinion, but, apparently, at least a majority of the 15-member Court of Special Appeals did so as well, given that it was released as a published opinion.

Unlike the opinions of the Court of Appeals, all of which are published, for an opinion from the Court of Special Appeals to be reported a majority of the 15-member Court must vote to do so. And while we do not know the exact count, clearly, at least seven judges in addition to Moylan saw nothing problematic with reporting the opinion. Worse, they all also saw nothing wrong with the disparaging tone used throughout it or the fact that most of the opinion using the insulting language is dicta.

What is even more remarkable about this case is that, when the opinion was initially released, counsel for Belton filed a motion requesting that the Court of Special Appeals reconsider its decision to report it and asking that it be recalled.  Counsel for Belton made every effort to save the court from itself. But the motion was denied, even though the state did not take a position on it.

What this demonstrates can be one of two things: Either the judges who voted to report the opinion found nothing racist about it, which in itself should be disturbing, or the judges turned a blind eye in deference to one of their senior colleagues who enjoys citing the likes of Beowulf, Shakespeare and Yeats, among many others.

For decades, judges on both appellate courts have been part of a larger tradition of “colorful” opinion writing that extends well beyond our state. In the past, courts have been loath to police or reign in the character, style, or rhetorical flourishes of their fellow jurists.

But we must not overlook the fact that we are in 2022, not 1922 or even 1972. Hopefully, trial and appellate judges alike are far more aware of, and sensitive to, the systemic racism in America noted by Alexis de Tocqueville two centuries ago. Moreover, the internet and social media vehicles such as Twitter enable the instantaneous and worldwide proliferation of any judicial opinion, something unheard of just two decades ago.

Indeed, is not the purpose of a reported appellate opinion to explain and promote respect for the law to bench, bar, and the public alike?

In the aftermath of the murder of George Floyd in 2020, then-Chief Judge Mary Ellen Barbera issued a Statement on Equal Justice under Law wherein she noted “[Judges] must re-examine how we administer justice … to assure that our courts do not suffer bias, conscious or unconscious.” As the Public Justice Center’s amicus brief cogently notes: “The Judiciary talked the talk, and this case demands the Court walk the walk. The Opinion is incompatible with the Judiciary’s stated values.”  We agree.

Editorial Advisory Board member Arthur F. Fergenson did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Michael Hayes

Julie C. Janofsky

Ericka N. King

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

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.