Last week, the Supreme Court of Maryland issued the much-anticipated decision concerning appellate impartiality in Belton v. State, No. 8, September Term 2022.
Who knew that, when this case was appealed to the Appellate Court of Maryland on a single, straightforward question regarding hearsay and self-defense, and submitted on briefs, it would turn into a matter of first impression in the Supreme Court implicating the right to fair and impartial judges on appeal?
The Appellate Court’s Opinion. In the Appellate Court, Mr. Belton raised one question: whether the exclusion of non-hearsay which impacted both his self-defense and his defense of other claims was erroneous. The Appellate Court (reported opinion by the Honorable Charles Moylan) held that the exclusion was erroneous but that the error was harmless. However, in the course of its opinion, and among other things, the Appellate Court compared Mr. Belton, an African American man, to Grendel, the mythical monster in the Old English poem, Beowulf. Also, the opinion contrasted Belton’s mother with the Victorian era icon for motherhood, Whistler’s mother.
As the Supreme Court would later note, the Appellate Court’s resolution of Belton’s claim of error “takes up approximately five pages in the bound volume of reported opinions. The bulk of the opinion (approximately 40 pages) is dicta concerning the application of the doctrines of defense-of-others and self-defense (…). The parties did not brief these points. The Appellate Court raised them sua sponte after the case was submitted on the briefs.” It is in that dicta that the most problematic portions of the Appellate Court’s opinion are found.
After the Appellate Court filed its decision, Mr. Belton filed a Motion to Recall and Reconsider Reported Opinion, on the ground that the opinion “lacks the appearance of impartiality by employing inappropriate and racially-charged comparisons[.]” The Motion was denied.
The Petition for Writ of Certiorari. A petition for writ of certiorari was filed presenting three new questions: (1) as a matter of first impression, whether a criminal defendant’s right to a fair and impartial judge and the appearance of a fair and impartial judge extend to appellate proceedings; (2) whether the appellate court’s reported opinion, containing racially-charged comparisons and analogies of the appellants to literary monsters – all in dicta unnecessary to the Court’s holding – violated petitioner’s right to fair and impartial judges and the appearance of fair and impartial judges; (3) whether the Appellate Court erred in denying petitioner’s Motion to Recall and Reconsider Reported Opinion where the opinion denies petitioner’s right to fair and impartial judges and the appearance of fair and impartial judges.
Petitioner’s fourth and final question raised the erroneous appellate court’s determination that the exclusion of non-hearsay was harmless. It is on this last question that the Supreme Court reversed the Appellate Court, finding that the State could not establish that the error was harmless beyond a reasonable doubt. What interests us more, however, is the Supreme Court’s opinion on the question of appellate impartiality.
The Amicus Curia. The Public Justice Center (PJC) filed an amicus brief and was joined by the ACLU of Maryland, the League of Women Voters of Maryland, the University of Maryland School of Law Clinical Program, the Howard University School of Law Civil Rights Clinic, and the Maryland Criminal Defense Attorneys’ Association. PJC writes that “the Opinion tramples the basis notion of human dignity of the Defendants. Its commentary trades in racist stereotypes – regardless of authorial intent – and is entirely irrelevant to the appeal.”
The Supreme Court Majority Opinion. The SCM (opinion by Justice Biran, joined by Justices Hotten, Watts, and Eaves) held that “the right to fair and impartial judges – both in fact and in appearance – extends to appellate proceedings.” The Court refused to decide whether the Appellate Court deprived Belton of due process or otherwise abused its discretion through its choice of language in its opinion, because it reversed the ACM on the issue of the harmlessness analysis.
However, the majority chose to provide “additional reflection and guidance” given the unique circumstances present here: “Judges must vigilantly guard both their actual impartiality and their appearance of impartiality. In the appellate context, this requires careful contemplation of how the language of our opinions may be taken, including how this country’s tortured racial history may make otherwise benign literary and artistic references land on modern ears.” The Court then disavowed the opinion’s dicta concerning self-defense and defense-of-others, including its literary analogies, because its analysis was based on flawed or disputed factual premises. The Court did not vacate the opinion nor did it order the Appellate Court to recall it. But it held that the opinion “will not constitute the law of the case on remand and should not be cited as authoritative in future cases.”
The Concurring Opinions. Justice Booth, joined by Justice Getty, did not join the Court’s “additional reflection and guidance.” The concurrence felt it was inappropriate “to parse through the dicta in the Appellate Court’s opinion creating dicta of our own. As justices of the Supreme Court of Maryland, it is often our job to carefully interpret and scrutinize language of appellate court opinions where the merits of an issue before us are concerned. But where we are not deciding the merits of a case, an appellate court should use great caution in exercising its discretion to comment gratuitously on issues beyond those necessary to be decided.” Justice Gould, joined by Justice Getty, also focused on the fact that there was no evidence of explicit or implicit bias in the ACM’s opinion. When “judicial commentary is untethered to an issue requiring our resolution and there is no evidence of racial bias, this Court should not stroke concerns about the racial dimensions of an Appellate Court’s opinion or critique its language and tone.”
This case of first impression will likely continue to spark much discussion regarding implicit or unconscious bias in court opinions.