The appearance of justice matters

A little more than a year ago, this board issued its editorial concerning “a case of first impression” urging (the then) Court of Appeals of Maryland to grant certiorari and review (the then) Court of Special Appeals’ judgment affirming homicide and related convictions, by published opinion, in the case of State v. Belton.

We did not opine on the merits of the appeal; rather, we observed that the intermediate appellate court’s opinion “contain[ed] commentary many readers would consider to be racist and biased against” the defendants, a mother and her adult son, who had been convicted in the Circuit Court for Baltimore City of homicide-related charges growing out of a dispute over illegal drug distribution territory in Southwest Baltimore.

We were not alone in our belief that plenary review was warranted. Indeed, an array of amici curiae filed briefs supporting the certiorari petition, including the Public Justice Center, the ACLU of Maryland, the League of Women Voters of Maryland, the University of Maryland Carey School of Law Clinical Program, the Howard University School of Law Civil Rights Clinic, and the Maryland Criminal Defense Attorneys’ Association.

Readers may recall, as we described it, the opinion compared defendant Terrence Belton, a Black Baltimore City resident, to the monster Grendel from the epic poem “Beowulf.” Keeping with its literary sweep, the opinion also took pains to contrast Belton’s mother, his co-defendant, to Whistler’s mother, depicted 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 mother, was unworthy of sympathy.

We were pleased when certiorari was granted and we are now especially gratified by the manner and tone by which the recent opinion of the Supreme Court of Maryland disposed of the concerns we and others voiced.

To be sure, on the merits, the court reversed the judgment (in part), vacated the conviction on the manslaughter charge and remanded the case for a new trial as to that offense, holding, unanimously, that the trial court had erred in sustaining an objection by the prosecution to a proffer of evidence by the defense, and that the error was not harmless, despite the existence of other evidence supporting the verdict.

Regrettably, however, in our view, Justice Jonathan Biran’s meticulously reasoned and solidly supported disposition of the challenges to the “literary analogies and other comparisons” in the lower court’s opinion did not garner unanimous support from his six colleagues.

His majority opinion (for himself and three others on this point) “highlighted” two essential features of the opinion of the intermediate appellate court that were concerning: (1) that much of the language “could be interpreted as evoking racial stereotypes or suggesting that they are the product of implicit bias;” and (2) “the opinion’s overall tone,”  informed by the use of sarcasm, and without regard for “how this country’s tortured racial history may make otherwise benign literary and artistic references land on modern ears.”

“Judges,” the majority emphasized after scrutinizing in detail the intermediate appellate court’s work product, “must vigilantly guard both their actual impartiality and their appearance of impartiality.”  We commend the opinion to the careful attention of our readers.

In two separately authored concurring opinions, three of the justices declined to join the majority opinion’s careful analysis of, and resolute condemnation of, the racialized, stereotyping language of the intermediate appellate court’s opinion. This was a missed opportunity for the highest court in our state, an opportunity to speak with one voice about the twin imperatives of equal racial justice under law and the appearance of equal racial justice under law.

From our reading of the concurrences, two basic reasons are given as justifying the concurring justices’ nonjoinder in a portion of the majority opinion. First, there is a retreat to notions of judicial restraint, a claim that it was not necessary to the final determination on the merits of the appeal for the court to opine on the disquieting language under review.

To this, we say, when judges see something disturbing in the administration of justice, judges should say something. As the majority opinion aptly notes, “given the unique circumstances present [in Belton], the concept of discretion in an appellate court’s choice of language merits additional reflection and guidance.”

Second, it is said that the majority opinion “fail[s] to accord [the intermediate appellate court judges] the benefit of the doubt they deserve,” that is, there was no showing of actual bias in the opinion.

This critique entirely misses the point, however; the majority opinion explicitly makes the same assertion, more than once. In any event, the blinkered view that because the race of the defendants appears nowhere in the appellate record, the disputed language is thereby cleansed of all racial import is at best naïve. Resort to a “colorblind” appellate jurisprudence is dangerous.

We applaud the Belton majority for confronting a heavy lift, jurisprudentially speaking, and doing so with grace and solemnity. But we also think it’s too bad the justices of the nascent Supreme Court of Maryland splintered on such an issue of transcendent importance in the twenty-first century.

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

Eric Easton

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Julie C. Janofsky

Ericka N. King

Susan F. Martielli

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.