UPDATED: Maryland Court Upholds Earlier Ruling Ending “Advisory Only” Jury Instructions
  • Aug 31, 2015
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ORIGINAL POST: On April 10, more than two dozen former prosecutors, state attorneys general and former senior Justice Department officials filed a friend-of-the-court brief in State v. Waine, asking the Maryland Court of Appeals to uphold its earlier decision on the unconstitutionality of jury instructions that jurors are the judges of both the facts and the law.

Prior to 1980, jurors in Maryland were uniformly told that the court’s instructions were “advisory only,” a position now widely recognized as violating a defendant’s core constitutional rights. In 1980, the Maryland Court of Appeals held “advisory only” jury instructions did indeed violate due process and were therefore unconstitutional. However, if defendants failed to object to “advisory only” instructions at trial, they were deemed to have waived those objections. Finally, in 2012, in Unger v. State, the Maryland Court of Appeals reaffirmed the unconstitutionality of the jury-decides-the law instruction and held that the ruling applied retroactively to anyone convicted prior to 1980. Maryland was the last state in the nation to uniformly use advisory only instructions in all criminal trials.

Following the Unger decision, more than 200 petitioners were expected to challenge their convictions, arguing that the “advisory only” jury instructions at their trials violated their fundamental constitutional rights. More than 80 of those individuals have already received relief under the decision; to date, none have been convicted of a new crime. Now, in State v. Waine, the State of Maryland has asked the court to overturn its 2012 decision and reinstate the prior principle that inmates who did not object to the constitutionally flawed jury instructions waived challenges to their convictions.

In the brief organized by The Constitution Project, the former officials urge the Maryland Court of Appeals to uphold its earlier decision in order to preserve the integrity of the judicial process. They argue that overruling the decision would create a pronounced unfairness in the administration of justice in Maryland because the result would be two groups of inmates treated dramatically differently — those who obtained relief before the court revisited its decision in Unger, and those who could not. The brief argues that overruling Unger would be fundamentally at odds with principles underlying judicial precedent and would severely harm the fairness of the criminal justice system in Maryland.

The brief was prepared with generous pro bono assistance from Skadden, Arps, Slate, Meagher & Flom LLP.

UPDATE: On August 28, the Maryland Court of Appeals decided in State v. Waine to uphold its earlier ruling on the unconstitutionality of “advisory only” jury instructions.  The majority opinion in Waine adopted the rule-of-law theme that the former officials emphasized throughout their brief.

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