“Juries decide facts, Judges decide law” seems so basic, it is hard to believe that up until 1980, Maryland juries were told otherwise.   


Previously, juries were instructed, in accordance with the Maryland Constitution, that  “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact.”  Although the Court of Appeals effectively eliminated such “advisory” instructions thirty-two years ago, their impact is still being felt.

In 1976, Merle Unger stood trial for the murder of a Hagerstown police officer.   After the trial judge told the jury that his instructions were “merely advisory,”  the jury convicted Unger of felony murder.   Unsurprisingly,  Unger’s trial counsel did not object to the advisory instruction.  After all, it was contained within the Maryland Constitution.

Four years later, in 1980, the Maryland Court of Appeals rejected the plain language of that constitutional provision and held that “legal issues are for the judge alone to decide.”  Then, in 2000, the U.S. Court of Appeals for the Fourth Circuit (Maryland’s circuit), concluded that there is a reasonable likelihood that a jury would interpret advisory instructions as allowing it to ignore the court’s instruction on proof beyond a reasonable doubt, and that such instructions therefore violated a criminal defendant’s right to due process under the Fourteenth Amendment.

In 2006, the Circuit Court for Washington County held a hearing on Unger's Petition for Post-Conviction relief in which Unger sought a new trial based on the advisory instructions given at his trial thirty years earlier.  In Spring 2007, Unger’s Petition was granted.  (Author’s Note – in Spring 2007, I was a Law Clerk at the Washington County Circuit Court).   The State appealed.  The Maryland Court of Special Appeals reversed, citing a 2008 Court of Appeals holding that defense counsel’s failure to object to advisory instructions constituted a waiver of the right to appeal that issue.   

Last week, the Maryland Court of Appeals reversed the Court of Special Appeals (and its own 2008 opinion regarding waiver), and affirmed Judge Donald Beachley’s grant of Unger’s Post-Conviction Petition.  The Court held that in light of the relevant decisions of the Maryland Court of Appeals after Unger’s 1976 trial, which “established a new state constitutional standard,” Unger's attorney's failure to object at trial to the jury instructions did not constitute a waiver of Unger’s right to challenge them.  According to Judge John Eldridge, to hold otherwise would require lawyers to be "clairvoyant."   

The Washington County State’s Attorney’s Office has stated that it intends to retry Unger.   While the next jury to hear Unger’s case will likely wonder why Unger is on trial in 2013 for a 1975 murder, one thing that will be made abundantly clear to the jury is that Maryland law is not advisory.