A defense attorney this week urged Maryland’s top court to erase a recent appellate court opinion due to what she called its racially charged content that would drive any reasonable reader to question that court’s impartiality toward the Black appellant against whom it ruled.
The racial tropes drawn in the lower court’s reported opinion and comparisons it made to a genteel white society indicate a racial bias against the appellant in upholding his voluntary manslaughter conviction, Assistant Maryland Public Defender Katherine P. Rasin told the Court of Appeals.
“An opinion that has the appearance of racial bias has no place in our jurisprudence,” Rasin said of the intermediate Court of Special Appeals opinion. “What message does it send if this court acknowledges that the opinion appears biased but may remain on the books and be cited in perpetuity?”
In its opinion, the Court of Special Appeals said the Black southwest Baltimore neighborhood where Terrance Belton killed Edward Calloway “was not the Hallmark Hall of Fame.” The court also likened Belton and his mother to monsters from the epic poem “Beowulf” and said their relationship was far from the idyllic scene depicted in James Whistler’s painting of his white mother.
Rasin said the bias in the Court of Special Appeals opinion raises questions whether the decision was fair. The appellate court ruled the trial judge’s exclusion of Calloway’s threatening statement “this is my block” was a harmless error that did not undermine Belton’s self-defense claim.
“The language does not have to be explicitly racist to evoke racist stereotypes,” Rasin said in urging the high court to “remove it (the opinion) from the books.”
“This court can use this case to initiate a dialogue on this topic that fosters an exchange of ideas without defensiveness or stigma,” Rasin added. “This is not about name-calling or canceling; it’s about compassion evolving and doing the best we can with the information that we have.”
Judge Jonathan Biran interjected that the high court’s racial bias jurisprudence primarily addresses improper statements made during jury trials, not in appellate opinions.
“For an appellate court, does there need to be a kind of wider strike zone than we might apply to the jury context given the impressionability of jurors in deciding questions of guilt or innocence?” Biran asked.
Rasin responded the standard should be the same.
“There is a reason why it is a right and not a privilege to be treated with basic respect,” Rasin said. “Ideally, remedying problematic language should be normalized. This court can recognize that we all suffer from implicit bias and that we have differing levels of awareness of it and that our language is constantly evolving.”
Assistant Maryland Attorney General Daniel J. Jawor countered that Judge Charles E. Moylan Jr., who wrote the opinion, has a well-known “penchant for literary devices” and that a reasonable reader would not ascribe racist tropes to the jurist’s metaphoric description of the trial record.
Jawor suggested the high court could “disavow” the opinion in a statement if it finds the literary references objectionable. The high court, however, should not recall the opinion, he said.
Court of Appeals Judge Angela M. Eaves pressed Jawor on why it was “even necessary” for an appellate opinion to invoke Beowulf and its monsters.
“Our position is quite narrow: It’s simply that the interpretation ascribed to the opinion by Mr. Belton is not necessarily so and does not therefore rise to an appearance of partiality,” Jawor responded. “However, we agree that there are problems with any type of comparison to monsters. It might not show racial partiality but it is an ill-considered metaphor at best.”
Apart from the opinion’s language, Rasin and Jawor battled over whether the erroneous exclusion of Calloway’s assertion that “this is my block” was harmless error.
Rasin said the exclusion was harmful to Belton’s defense because it went to the heart of his argument that he killed Calloway in self-defense. Jawor called the exclusion harmless because the jury had heard other evidence that Calloway had threatened Belton.
Judges Biran, Steven B. Gould and Shirley Watts appeared to support Rasin’s position in stating that a person who claims a property interest, as Calloway did, might reasonably be perceived by another – such as Belton – as willing to resort to deadly violence to defend it.
The high court is expected to render its decision by Aug. 31 in the case, Terrance Belton v. State of Maryland, No. 8 September Term 2022.
According to trial testimony, Calloway and Belton’s mother were brawling on the morning of Dec. 6, 2018, when Belton was told his mother was being assaulted. Belton rushed to the scene, drew his gun and shot Calloway five times because of what Belton said was fear that Calloway would shoot first.
Though Belton was charged with second-degree murder, the Baltimore City Circuit Court jury found him guilty of the lesser offense of voluntary manslaughter.
A three-judge panel of the Court of Special Appeals upheld Belton’s conviction despite agreeing with his contention that the trial judge erroneously barred, as impermissible hearsay, testimony that Calloway had threateningly said to him that “this is my block” shortly before the slaying.
The appellate court noted that hearsay is defined as an out-of-court statement sought to be introduced at trial for the truth of the matter asserted.
“We agree with the son that the assertion was not hearsay,” Moylan wrote. “It was certainly not offered for the truth of the thing asserted, to wit, that Calloway was licensed, presumably by the city of Baltimore, to exercise a monopolistic privilege to sell contraband narcotics at the intersection of South Monroe Street and McHenry Street.”
Though excluded in error, the statement’s admission would have had no effect on the jury’s verdict in light of the many prior threats and evidence that the mother was an active participant in the hostile communications with Calloway, the Court of Special Appeals held.
Belton then sought review by the Court of Appeals.
Moylan, a retired jurist sitting by special assignment, was joined in the opinion by Judges Andrea M. Leahy and Melanie Shaw Geter.
The Court of Special Appeals issued its opinion last year in the joint cases Terrence (sic) Belton v. State of Maryland and Shakiea Worsley v. State of Maryland, Nos. 720 and 290, September Term 2020.