Saturday, July 13, 2013

Gods in Little Black Robes

The Maryland Court of Appeals sure made multiple headlines last week.  After a ruling from our highest court last year, we are now learning that dozens of convicted felons from the 1970s are entitled to new trials because of erroneous jury instructions. As a practical result, 13 murderers have already been released from prison, and the cases of others are up in the air.  It's an incredible, nearly impossible burden on prosecutors to retry cases that are so very old. 

Judges don't care about this.  But they should care about their own burden to be prompt and accountable.  How is it that only now is the Court of Appeals taking action?  

A glance at the opinion reveals the following about the case filed by Merle Unger, a convicted murderer:
  • A few years after Unger's 1976 conviction, the Court of Appeals changed the plain words of the Maryland Constitution about jury responsibilities to mean something else.  Unger's trial judge (like many others) had relied on the original words.
  • Unger filed a Post-Conviction petition 20 years after his conviction. Post-Convictions give defendants another bite at the apple, usually arguing that their lawyers were bad and deprived them of a fair trial.
  • Nothing happened while Unger was apparently locked up in another state.  The case was taken up again in 2006.
  • Between 2006 and 2012 the case went back and forth between the trial court, Court of Special Appeals and Court of Appeals over technical arguments about whether Unger had waived his rights.  After concluding that he had not, the Court issued its decision.
And there we have our legal system in "action."   

Law school taught me that most criminal trials are overturned because of errors in jury instructions.   Throughout a trial, but mainly at the conclusion of all witness testimony, judges provide instructions to juries about what evidence they can and cannot consider, definitions of crimes and reasonable doubt, and their responsibilities as jurors.  Trial lawyers fight over what instructions the judge should give because they are important. 

But in practice, what is more important than juries actually understanding instructions is the legal wrangling that takes place after a conviction.   Lawyers who specialize in appeals pour over transcripts, looking for wording errors and omissions that could open the way to reversing the verdict. Judges read written briefs, hear arguments, and write lengthy opinions over the meaning of a few spoken words.

Jurors, however, don't have the same privilege.  They usually hear the instructions once, and never get them in writing.  Yet all 12 persons are supposed to make perfect sense of them, understand them in a uniform way, and apply them appropriately.  Who are we kidding?  In reality, little to no effort is made to ensure that jurors really understand their instructions.  The instructions just become fodder for multiple appeals. 

We have to live with that.  But no one should have to live with a court system that takes decades to decide that an erroneous jury instruction requires a new trial.

A second Court of Appeals decision threw out a mandatory sentence of five years without parole for a felon who possessed a handgun, ruling that the trial judge had to impose a more lenient penalty instead.  Prosecutors are justifiably worried that this could deprive them of what has been an effective weapon against violent criminals who possess handguns.

But the more worrisome factor for me, once again, is the accountability of the courts.  The appeal in the case, according to The Sun, was heard in 2005, eight years before Chief Judge Robert Bell wrote and issued the decision.  His ruling was a fitting farewell for the retiring judge who always distrusted the even-handedness of the criminal justice system.

But Bell wasn't fair himself.  For if he is right in his legal reasoning, why did he allow all those sentenced to the mandatory five years since 2005 to serve those sentences? What duty did he have to file a timely decision in the interest of justice?  Apparently, none.

I have never been particularly impressed with the work of our appeals judges, with a few significant exceptions. Inconsistent opinions, blatantly political decisions, and just plain shoddy legal reasoning litter the landscape of Maryland judicial precedent.

And now the Court of Appeals has told us that they can issue opinions whenever they want, without accountability for unreasonable delay and the impact of that delay.  It reminds me of what my first boss told me: "Judges are gods in little black robes."  


  1. As an observer, I have wondered often about the various ‘instructions’ jurors get from the bench in boilerplate Legalese. These seem to have little to do with a jury panel’s actual handing or consideration of the matter at issue, both during and especially at the end of a case when they are read series of long, involved, and tedious rules beyond the grasp of most high-school graduates (newspapers shoot for an eighth grade reading level).

    A pair of salesmen called ‘lawyers’ has just pitched a group of people fully capable of following a movie or television plot two versions of The Truth, sometimes wildly divergent versions, and neither the whole story. The two versions are actually legally-constructed strip maps from A-Z that dance carefully around inconvenient facts, legally excluded, such that the narratives often do not add up, or at least leave many unanswered questions. Sometimes jurors are told 'to disregard' things they don't have a context for understanding in the first place, opening the door to speculation in which they are cautioned not engage.

    The stories are summed up either before or after a judge runs through a long, involved, and incredibly boring recital in liturgical Legalese, at a practised liturgical lilt, done more for appellate lawyers than everyday people. The panel’s task is then to decide which side’s story was more believable. This process never fails to amaze me. I say this as an observer and an annual participant in Baltimore City juries.

    However, the least slip-up in the Legalese liturgy reverses the work of what a panel of reasonably intelligent citizens generally has worked conscientiously and sometimes contentiously to determine.

    We may ‘have to live with that’: there must be a better way.

    Peter Geier

  2. Such a great post. Thank you for sharing your journey honestly & candidly. And congratulations on your success! :) Love reading all your posts.