Drawn from an old transcript, this is how a Baltimore judge instructed a jury before its deliberations in a murder trial in 1967: "You, under our system, in criminal cases are at liberty to disagree with the court's interpretation of the law. You shall determine what the law is and then apply the law to the facts as you find them to be."
Imagine being on that jury, invited to employ your vast legal knowledge in interpreting Maryland law in a case that could send a defendant to prison for the rest of his life.
Wait, there's more:
On the sacrosanct principle of a defendant being presumed innocent until the state can prove guilt, the judge said this: "You are instructed, in an advisory way, that it is incumbent upon the state of Maryland to establish proof beyond a reasonable doubt."
Advisory? You mean, what the judge said about "burden of proof" was only a little FYI? Holding the state to the standard of "beyond a reasonable doubt" was merely a suggestion?
Imagine how confused the jurors of 1967 might have been, or how emboldened they were to reject the judge's instructions and do whatever they felt like.
But that's how things were done back then.
For a couple of centuries, a Maryland judge's instructions to a jury were considered advisory. Maryland was an outlier in this regard, holding to a practice that dated from Colonial times even after the Supreme Court and all but one other state rejected it.
That is exactly why, 13 years into the 21st century, inmates serving life sentences for murders or rapes from decades ago have been granted new trials and set free. More are expected to be released in the coming weeks. They're not walking out of prison on some technicality, some fine point of law that only lawyers who argued the case that triggered the releases can comprehend.
Rather, the principles of presumed innocence, burden of proof and reasonable doubt are widely understood and embraced, even by grouchy Americans who think our legal system is upside down.
So, unpacked and understood, the facts behind 2012 Court of Appeals ruling that led to the recent releases of lifers seem wholly remarkable — as late as 1980, jurors in Maryland murder cases were being told that a judge's instructions were merely advisory. That was unconstitutional, the court said in 2012, making its ruling retroactive to all cases before 1980. That's why convicted senior-citizen murderers and rapists get to walk out of prison now — because they were tried by juries that got the flawed instruction.
The roots of this "advisory" instruction run deep, to English common law. The idea was to authorize juries to nullify laws they considered too rigid and to guard against the harsh rulings of judges.
According to Michael Millemann, professor at the University of Maryland School of Law, Colonial settlers incorporated the provision into the Maryland Declaration of Rights, relying on it as a check on judges they considered loyal to the British monarchy.
For the same reasons, John Adams and other statesmen of the Colonial era believed jurors must be the interpreters of both law and fact.
After the American Revolution, the practice remained, and in time it became the standard instruction in trials throughout the states.
It wasn't until the 20th century that the great flaw was exposed and repealed through judicial action at both state and federal levels. "The defendant must be presumed to be innocent, and the state must prove guilt beyond a reasonable doubt," Millemann says. "These fundamental rules are not 'advisory' and cannot be left to the jury to accept or reject."
But Maryland didn't get the memo. By 1949, it was the only state besides Indiana to still use advisory instruction. Over the years, judges here gave it in thousands of felony cases, though some recognized the flaw.
Here's how, in 1973, an obviously conflicted Baltimore judge instructed a jury in a murder case:
"What I have to say to you is advisory, and no more, because even though the jury in every case is the judge of facts in Maryland, in the trial of a criminal case the jury is also the judge of the law. That may sound incongruous to you, but it has been in the Maryland Constitution for almost 200 years now ... dating back to colonial days when the colonies thought that the British crown was employing incompetent judges."
The judge added that the jurors "can disagree with my interpretation of the law as it applies to the facts as you find those facts to exist."
Again, imagine being a juror, invited to reject the judge's take on the law in a murder case.
In 1980, the Court of Appeals finally dumped the "advisory instruction." But it said its ruling applied only to future cases.
It took the notoriously slow court another 32 years to declare, in 2012, the instruction unconstitutional and apply it to all cases before 1980. You'd think the high court of this ostensibly progressive state would have seen the light much sooner. That would have served justice and saved a lot of grief.