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Maryland high court weighs constitutionality of ‘thin blue line’ at trials

A criminal defendant cannot receive a fair jury trial when a bailiff wears a face mask emblazoned with the pro-police “thin blue line” flag during the court proceeding, a defense attorney told Maryland’s top court Wednesday.

The symbol’s provocative political statement presents an “unacceptable risk” to the court’s perceived role as a neutral arbiter and unconstitutionally sways the jurors against the defendant, Assistant Maryland Public Defender Michele D. Hall said.

“We expect to have uniformed officers in the courthouse,” Hall told the Court of Appeals. “We are simply not inured to seeing political symbolism in the courtroom.”

The controversial 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 symbol has also been co-opted by white supremacist groups and has no place in a courtroom, Hall said in pressing the appeal of Everett Smith, a Black man who was convicted of child abuse and assault.

In response to Hall, an attorney for the state said Smith received a fair trial because jurors would neither be surprised nor swayed by a bailiff – or other law enforcement figure – wearing a symbol that supports fellow officers.

“For many people, it (the thin blue line) is simply a way to show support for the police,” Assistant Maryland Attorney General Derek Simmonsen said.

That argument, however, drew skepticism from Judge Shirley M. Watts. She said a juror could regard the symbol not as a benign display of police pride but of the court’s bias against a Black defendant.

“Race in this country is a topic that invokes historical and constitutional concern,” Watts said.

Judge Jonathan Biran said a bailiff displaying the thin blue line during a civil trial would not raise the same constitutional concern of fairness as showing it during a criminal trial when “the state is bringing its law enforcement power to bear” on a defendant.

Simmonsen responded that displaying the thin blue line is not inherently prejudicial to a fair trial. He said each case should be judged independently to determine if “actual prejudice” occurred in that instance.

He added that the high court has the administrative authority to adopt a rule prohibiting the courtroom display of the thin blue line as being inappropriate. However, the symbol does not inherently violate a defendant’s constitutional right to a fair trial, Simmonsen said.

Judge Joseph M. Getty, a retired jurist sitting by special assignment, asked Hall if it would be inherently prejudicial to a fair trial for a bailiff to wear a black mourning band with a thin blue line to honor a fallen police officer.

Hall responded that the black band would be appropriate and expected but that the blue line would present an “unacceptable risk” of bias by placing “a thumb on the scale in favor of the state.”

The Court of Appeals is expected to render its decision by Aug. 31 in the case, 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 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.

The intermediate Court of Special Appeals 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.”

In its decision last fall, the appellate court said 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.

Smith then sought review by the Court of Appeals.

The high court’s consideration of Smith’s case follows Maryland District Court Chief Judge John P. Morrissey’s directive in May 2021 that judges 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 rather than 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.