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Letter to the Editor - July 9

July 09, 2012

Unger decision could impact early jury trials


To the editor:

Every Herald-Mail subscriber and reader needs to know that the Unger decision (“Maryland court orders new trial for man convicted of killing officer in 1975,” May 26) might affect your legal rights.

In a seminal decision, Maryland’s highest court found the century-old provision in the Maryland Declaration of Rights, Article 23, that the jury is “judge of the law” as well as the facts, was unconstitutional. On page 35 of the slip opinion (Merle Unger v. State, September Term 2009, Case No. 111), the court said:

“Those portions of the Court’s Stevenson, Montgomery and Adams opinions, holding the interpretation of Article 23 in Stevenson and Montgomery was not a new constitutional standard, were erroneous and are overruled”; and on page 5 the court held: “the Stevenson and Montgomery opinions substantially changed the state constitutional standard embodied in Article 23. Accordingly, failure to object to advisory only jury instructions in criminal trials prior to Stevenson will not constitute a waiver.”

Thus, every person who was tried in the Maryland courts by a jury before Dec. 17, 1980, was perhaps tried in violation of the United States Constitution and may have the right to a new trial. This is not the first time the Court of Appeals admitted a major constitutional error affecting the lives of thousands of citizens. In Schowgurow v. State, 240 Md. 121 (1965), the Court of Appeals held another century-old provision, Article 36 in the Maryland Declaration of Rights, was also unconstitutional, and it affected thousands of citizens.


Douglas Scott Arey
No. 130196 EA-111
Jessup Correctional Institution

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