Keeping it quiet

The Baltimore Sun

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.

"The decision on publication was one of the objections some of the legislators had," said retired Court of Special Appeals Judge Charles E. Moylan Jr. "What's it going to cost us to print all of these decisions? It's going to be a fantastic taxpayer burden to put all of these books out. So early on, it was decided that clearly we needed to publish some of our decisions but not all of them."

The state currently has a little more than 180 volumes of reported appellate opinions, Moylan said. Had the court published all of its work, he estimated that number would be more than 1,000.

Opponents of more widespread reporting say appellate courts already publish a considerable amount of case law. More paper would just raise client fees, state expenses and possibly require more judges - with little gained in return.

Posting the opinions online or in legal databases would prove too tempting for lawyers, who would rely on the non-binding decisions to make their cases even though they shouldn't, Bair said.

"Personally I don't see any sense in having them available if you can't use them," said Geraldine K. Sweeney, chief of the appellate division for the State Public Defender's Office. "Theoretically, everything that's in an unreported opinion has been said before in a reported one. You can't use it, and you shouldn't need it."

Attorney Andrew Baida said changing the rules would also create more delays in the court.

Cases argued before the Court of Special Appeals take, on average, a year to complete, according to statistics from fiscal year 2007, when more than 2,100 appeals were filed. The court issued 1,301 opinions that year, an average of 100 per judge, although retired judges often hear cases.

The chief judge of the Court of Special Appeals, Peter Krauser, declined to be interviewed for this article. Through a spokesman, he said that he has begun a "preliminary review" of the issue of unreported opinions.

Typically one judge - the one writing an opinion - decides whether the work meets the standard for publication; it has to say something "substantially" new. If so, the case goes before the entire court at its monthly meeting for consideration.

Moylan said that in addition to deciding whether a case breaks new ground, the court has historically considered whether it involves a "notorious celebrity" such as the man who shot presidential candidate George C. Wallace in 1972.

But other than the opinion's author and perhaps other members of the bench, no one knows precisely why an opinion is reported or not.

Take the murder case against Kenneth Hiter Jr. During his trial in Baltimore, someone broke into the jury room, rifled through members' belongings and stole a cell phone, money, wallet and keys.

Veteran judge John N. Prevas had no idea what to do. Should he declare a mistrial? Would the jurors' victimization bias them against the defendant?

Prevas searched online legal databases for guidance from Maryland appellate courts. Finding none, he turned to examples from Chicago, where jurors are sometimes put up in hotels and all sorts of things are stolen. Following the reasoning in Illinois law, he continued the trial.

On appeal, three judges agreed with Prevas' handling of the matter. But the opinion's author, for unknown reasons, decided the case shouldn't go on the books.

"I think judges really would have benefited from that guidance," Prevas said.

"There's a handful of cases where they think the issue is old hat, when we don't think it's old hat."

Prevas' colleague, Circuit Judge John Glynn, said that the appeals court seems to select cases for publication that are "useful in helping lawyers try other cases."

But he wonders whether other factors, such as the strength of the logic behind a decision, also come into play.

He has faced situations where he knows the fair outcome but struggles "to come up with a really compelling rationale" for it.

"So [judges would] rather not print it," Glynn said. "They don't want people parsing these words 10 years from now."

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