Keeping it quiet

Only a fraction of the details fo the rulings of Maryland's second-highest appeals court are ever made widely available to the public

March 22, 2009|By Melissa Harris | Melissa Harris,melissa.harris@baltsun.com

Maryland's second-highest court resolves hundreds of disputes a year - on issues ranging from whether companies really have to pay millions to wronged customers or whether a convicted murderer deserves a new trial.

But the resolution of those cases is not usually made widely available to the public. Nine out of every 10 opinions from the Court of Special Appeals are labeled "unreported," virtually closed off from public scrutiny and never bound in legal volumes.

Google and more powerful legal search engines won't turn up the opinions either - even when the name of a company or defendant is instantly recognizable. In many ways, these decisions are so hard for the public to find that they might as well be secret.

In the last month alone, the court has upheld the convictions of former Baltimore police officer Jemini Jones, acquitted of raping suspects but fired for a handgun violation and fleeing police; Jermile Harvey, the gang leader who killed a teenager with a samurai sword; and Dameon C. Woods, the corrections officer who stomped to death Raymond K. Smoot, a 51-year-old father of four, in Baltimore's jail.

The outcomes of these appeals have gone "unreported" because they were deemed to offer no new insights into the practice of law and cannot be cited or enforced as precedent in similar cases. But they certainly mean something to the families involved. A reporter informed Smoot's niece, Delvonna Smoot, 38, that the court upheld Woods' 20-year prison sentence last week.

"Thank God. Thank God," said Smoot, who has custody of her uncle's 14-year-old son.

"I was not aware."

The practice of "unreporting opinions" developed decades ago, when the judiciary feared the cost of printing volumes of law books and the headaches it would cause any clerk or attorney sifting through so much redundancy.

But the practice is now being re-evaluated in Maryland and other states as the Internet slashes publishing costs and boils down a week's search to the tap of a few buttons.

University of Maryland law professor William L. Reynolds, a longtime advocate of opening up the work of appellate judges, said reforms would increase accountability and make the law more predictable. The change would only take a few hours, he said.

"They're public documents," Reynolds said. "Taxpayers paid for them. Why should they have to trek to a faraway courthouse?"

All federal appellate decisions are available online - even those that are not precedent-setting. And the U.S. Supreme Court now allows attorneys to use those opinions to try to persuade federal judges. At least one state, Massachusetts, has followed suit.

But Maryland and many other states have kept a two-tier system.

"Unreported opinions" issued by the Court of Special Appeals don't establish precedent for lower court judges faced with similar issues. And they can't be used to support arguments or rulings in other cases. For those reasons, the cases aren't widely distributed in print or online.

"Reported" opinions, in comparison, are binding as precedent. They're available on the judiciary's Web site and Google, and searchable on legal databases, such as Lexis-Nexis and Westlaw.

Gary Bair, who led the criminal appeals division of the Maryland attorney general's office for 17 years, said the rules "seem strange in the 21st century" but are needed, given the court's caseload. Lawyers can ask the court to reconsider its decision not to publish, which Bair has done three times, all with success.

"So many appeals present the same issues over and over again," he said. "It's virtually impossible to read all of the published opinions as it is."

Unreported opinions are not secret. People involved in the case - the judge and the attorneys - receive copies. For everyone else, however, they are not easy to find.

A list of unreported cases appears on the judiciary's Web site, but not the outcomes or opinions. It costs money to have a copy of an opinion sent to you.

"One rationale for the rule is that every opinion is not written with the same degree of care," said David Rocah, a staff attorney for the American Civil Liberties Union in Maryland. "It's certainly possible for it to be abused, but I haven't seen that."

If concerns about quality are the reason for unreported opinions, the court needs more judges, said attorney Michael Wein, who has written several articles on the issue. The status quo, he added, doesn't match the courts' overall march toward "transparency."

So far this year, the 13-member Court of Special Appeals - almost always sitting in panels of three - has issued 263 unreported opinions and 29 reported ones.

The practice began with the court's founding in 1966 when politicians and judges hammered out the details of a court designed to take some pressure off an overwhelmed Court of Appeals.

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