A criminal defendant’s constitutional right to an unbiased jury was inherently violated by the courtroom presence of a bailiff wearing a face mask emblazoned with the pro-police “thin blue line” flag during trial, a divided Maryland high court ruled Friday in overturning a man’s child abuse conviction.
The politically charged symbol strongly indicated the trial court’s potential bias toward law enforcement, symbolism that became particularly pronounced amid nationwide protests over police brutality against unarmed Black people, the Court of Appeals said in its 5-2 decision.
The defendant, Everett Smith, is Black. His case went to trial in Kent County Circuit Court in October 2020 — just five months after George Floyd’s murder under the knee of then-Minneapolis police officer Derek Chauvin sparked the national unrest, the high court said in ordering a new trial.
“The thin blue line symbol, already controversial, had become even more polarizing to many” at the time of Smith’s trial, Judge Jonathan Biran wrote for the majority. “Against this backdrop, the bailiffs’ display of the thin blue line flag on their face masks in the courtroom during Smith’s trial created an unacceptable risk that the jurors would believe that the court was siding with law enforcement in this moment of political upheaval, and that they would necessarily have that belief in their minds as they decided whether to side with law enforcement in this particular case.”
The 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.
At the time of Smith’s trial, Kent County Circuit Court bailiffs wore the thin blue line face masks in support of law enforcement at the direction of their boss, Sheriff John F. Price IV. But the high court said the provocative symbol’s display violated Smith’s Sixth Amendment right to a fair trial regardless of any benign motive.
“What the authority figures in the courtroom chose to display on their face masks was likely to be of particular interest to the jurors,” Biran wrote, referring to the bailiffs.
“Undoubtedly, one of the reasons the sheriff of Kent County decided to require his deputies (bailiffs) to wear this particular mask was because he expected that members of the public would take notice,” Biran added. “We have every reason to believe that the jury in Smith’s trial did just that.”
Smith’s appellate attorneys hailed the high court’s ruling in a statement.
“We are very pleased that the court recognized the inherently prejudicial nature of the thin blue line symbol with all of its meanings, including as a pro-law enforcement expression, during a criminal proceeding, and the particularly problematic impact here of court personnel displaying such an evocative symbol during Mr. Smith’s trial,” wrote Assistant Maryland Public Defenders Michele Hall and Rachel Kamins.
The Maryland Attorney General’s Office declined to comment on the court’s decision.
Biran was joined in the opinion by Judges Shirley M. Watts, Michele D. Hotten, Brynja M. Booth and Angela M. Eaves.
In dissent, Judge Steven B. Gould said no evidence had been presented in court that Kent County jurors would be influenced or surprised by a bailiff wearing pro-police, thin blue line imagery.
In addition, the jurors were screened before trial for any bias in favor of police officers and were instructed before deliberations to decide the case solely on the evidence presented at trial, Gould wrote.
“At bottom, even if the jurors saw the deputy’s mask and though to themselves: ‘now there’s a guy who is proud to be a law enforcement officer in these tumultuous and turbulent times,’ I have no reason to believe that would have posed any material risk that impermissible considerations would come into play in the jury’s deliberations,” Gould wrote.
“That said, I share the majority’s underlying concern about the portrayal of symbols and messages of political or ideological content in the courtroom by any person affiliated with the state or law enforcement,” Gould added. “Irrespective of whether Mr. Smith’s right to a fair trial was inherently prejudiced, this case illustrates the need for this court to exercise its rulemaking authority to prevent this situation from arising in the future.”
Gould was joined in the dissent by Judge Joseph M. Getty, a retired jurist sitting by special assignment.
At Smith’s trial, his defense counsel objected to the symbol on the courtroom bailiff’s face mask. Judge Harris P. 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 Smith’s conviction, saying the bailiff’s display of the symbol “did not constitute inherent prejudice necessitating a new trial.”
Smith then sought review by the Court of Appeals.
The high court rendered its decision in Everett Smith v. State of Maryland, No. 61 September Term 2021.
Concern about the symbol prompted Maryland District Court Chief Judge John P. Morrissey in May 2021 to bar courtroom displays of the thin blue line, saying they 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.