Smith v. State ( 2022 )

Everett Smith v. State of Maryland, No. 61, September Term, 2021. Opinion by Biran, J.
CONSTITUTIONAL LAW – SIXTH AMENDMENT – RIGHT TO A FAIR TRIAL
– INHERENT PREJUDICE. Petitioner was tried on assault charges in the Circuit Court
for Kent County in October 2020. At his trial, two bailiffs wore face masks that displayed
the “thin blue line” flag. After Petitioner was convicted of two charges, he argued on appeal
that the display of the thin blue line flag was inherently prejudicial to his right to a fair trial
under the Sixth Amendment to the United States Constitution. The Court of Appeals held
that, to prevail on a claim of inherent prejudice, the defendant must: (1) have objected to
the challenged practice in the trial court; (2) demonstrate, based on the record of the
proceeding in the trial court, that the challenged practice was observable by the jury; and
(3) establish that the challenged practice created an unacceptable risk that impermissible
factors would come into play in the jury’s determination of the case. If the defendant meets
all of these requirements, the State may attempt to show that the challenged practice was
necessary to further a compelling governmental interest.
The Court held that the bailiffs’ display of the thin blue line flag on their face masks was
inherently prejudicial to Petitioner’s right to a fair trial. The most benign meaning that can
reasonably be attributed to the thin blue line symbol is a pro-law enforcement message. In
a criminal trial, the display of a pro-law enforcement message in the courtroom is
inappropriate. In this particular case, the display of the thin blue line symbol violated the
Sixth Amendment because it was the bailiffs – agents of the court – who wore the offending
masks, and because Petitioner’s trial occurred at a time when the thin blue line symbol was
particularly evocative.
Circuit Court for Kent County
Case No. C-14-CR-19-000193
Argued: June 1, 2022
IN THE COURT OF APPEALS
OF MARYLAND
No. 61
September Term, 2021
EVERETT SMITH
v.
STATE OF MARYLAND
Watts
Hotten
Booth
Biran
Gould
Eaves
Getty, Joseph M.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Biran, J.
Gould, J., and Getty, C.J., dissent.
Filed: August 26, 2022
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-08-26
14:38-04:00
Suzanne C. Johnson, Clerk
2020 will be remembered as one of the most tumultuous years in American history.
As the nation struggled to navigate the COVID-19 pandemic, a white Minneapolis police
officer killed George Floyd, an unarmed African American man, on May 25, 2020. Floyd’s
murder, which followed multiple killings of African Americans around the country over
the previous decade, galvanized the Black Lives Matter movement, leading to enormous
protests and counter-protests around the nation throughout the summer of 2020. The
pro-police “Blue Lives Matter” movement increased in prominence nationally as a
response to Black Lives Matter and calls to “defund the police.” The presidential campaign
fanned the flames of controversy throughout the summer and into the fall of 2020.
The case before us here went to trial on October 14, 2020, against this backdrop of
illness, fear, and civic and political unrest. In the Circuit Court for Kent County, the State
charged Everett Smith, an African American man, with several criminal offenses arising
from an alleged physical altercation with his 14-year-old daughter. In keeping with an
Administrative Order issued by the Chief Judge of this Court, the trial court required all
people in the courtroom for Smith’s trial to wear face masks to prevent the transmission of
COVID-19. At the time of Smith’s trial, the Sheriff of Kent County was requiring all his
deputies to wear face masks that displayed a “thin blue line” version of the American flag.
The “thin blue line” is a controversial and polarizing symbol. Some view it as an expression
of general support for law enforcement; others view it as a symbol of how police serve as
a barrier between civilized society and criminals; and others view it as a racist symbol that
expresses support for white supremacy and violence against African Americans.
The Sheriff’s deputies who served as courtroom bailiffs during Smith’s trial wore
thin blue line face masks as required by the Sheriff. Immediately before jury selection,
Smith’s attorney asked the trial court to direct the deputy who was acting as the bailiff at
that time to wear a different mask that did not include an image of the thin blue line.
Believing the bailiff had a First Amendment right to wear the thin blue line flag mask, the
trial court declined defense counsel’s request. The jury convicted Smith of second-degree
assault and second-degree child abuse by a custodian.
On appeal, Smith argued that the bailiffs’ display of the thin blue line flag on their
face masks violated his right to a fair trial under the Sixth Amendment to the United States
Constitution. The Court of Special Appeals affirmed Smith’s convictions. Although the
intermediate appellate court recognized that a courtroom is not a public forum where
restrictions on citizens’ First Amendment rights are subject to heightened scrutiny, and the
court expressed concern about the display of the thin blue line in courtrooms, it held that
Smith did not his meet burden to demonstrate that he was deprived of a fair trial.
We conclude to the contrary. The bailiffs’ display of the thin blue line flag – and the
pro-law enforcement message it conveyed – was inherently prejudicial to Smith’s right to
a fair trial. We therefore vacate Smith’s convictions and order a new trial.
I
America in the Fall of 2020
A. The Maryland Judiciary’s Reaction to the COVID-19 Pandemic
By mid-March 2020, COVID-19 had arrived in Maryland and was spreading rapidly
throughout much of the State. Under the direction of the then-Chief Judge of this Court,
2
the Honorable Mary Ellen Barbera, Maryland’s courts suspended most in-person hearings
and initiated emergency procedures to protect the citizens of the State.1 The unprecedented
COVID-19 public health emergency caused the postponement of trials for months, as
Maryland’s citizens and judicial system grappled with the global pandemic.
In May 2020, Chief Judge Barbera issued an administrative order lifting the
prohibition on jury trials, with trials to resume after October 5, 2020.2 In October 2020,
Chief Judge Barbera issued an amended administrative order on the phased resumption of
operations as well as an amended administrative order on the resumption of trials scheduled
to begin on October 5.3 Trials were permitted to go forward with strict safety requirements,
including required masking in court buildings, mandatory quarantining, etc. Jury trials
subsequently resumed under these mandated reopening and safety precautions.
B. The Murder of George Floyd and Subsequent Unrest
On May 25, 2020, George Floyd, an African American man, was killed by Derek
Chauvin, a white Minneapolis police officer, during Floyd’s arrest for allegedly using a
1
See Maryland Courts, (COVID-19) Administrative Orders, available at
https://perma.cc/M4K7-T9DL. Maryland’s Judiciary continued in a health emergency
posture until March 28, 2022. During that two-year period, the changing circumstances and
phases of COVID-19 required continued adaptation by the courts and citizens of the State.
2
See Order: Lifting the Statewide Suspension of Jury Trials and Resuming Grand
Juries (May 22, 2020), available at https://perma.cc/Z9V8-7WDD.
3
See Second Amended Administrative Order Lifting the Statewide Suspension of
Jury Trials and Resuming Grand Juries (Oct. 2, 2020), available at https://perma.cc/7ZTL-
AW8G; Second Amended Administrative Order on the Progressive Resumption of Full
Function of Judiciary Operations Previously Restricted Due to the COVID-19 Emergency
(Oct. 2, 2020), available at https://perma.cc/X8UZ-3EG5.
3
counterfeit 20-dollar bill at a convenience store.4 Officers stopped Floyd, pulled him out
of his vehicle, and restrained him on the ground. Chauvin kneeled on Floyd’s neck for over
eight minutes. An unresponsive Floyd was declared dead, and his death was ruled a
homicide.5
Bystanders’ videos of Floyd’s killing spread rapidly, sparking widespread outrage
against police brutality and racial injustice. Major cities across the United States saw large
protests and civil rights demonstrations. The Black Lives Matter movement (“BLM”),
founded in response to George Zimmerman’s fatal shooting of Trayvon Martin in 2012,
gained significant support and following in the aftermath of Floyd’s murder.6 This social
outcry brought other recent killings of African Americans – in particular, Ahmaud Arbery
4
See, e.g., How George Floyd Died, and What Happened Next, N.Y. TIMES (May
19, 2022), available at https://perma.cc/S39N-KS44.
5
Chauvin was charged with murder and related offenses in state and federal court.
In 2021, Chauvin was convicted of second-degree unintentional murder, third-degree
murder, and second-degree manslaughter in state court in Minnesota. John Eligon, et al.,
Derek Chauvin Verdict Brings a Rare Rebuke of Police Misconduct, N.Y. TIMES (Apr. 20,
2021), available at https://perma.cc/XPX4-QLX8. He subsequently was sentenced to 270
months of imprisonment. Tim Arango, Derek Chauvin is sentenced to 22 and a half years
for murder of George Floyd, N.Y. TIMES (June 25, 2021), available at
https://perma.cc/ZH88-PK27. Chauvin also pled guilty in federal court to violating Floyd’s
civil rights and was sentenced to 252 months in that case. Chauvin’s federal sentence will
run concurrently with his state sentence. Nicolas Bogel-Burroughs, Derek Chauvin Pleads
Guilty to Violating George Floyd’s Rights, N.Y. TIMES (Dec. 15, 2021), available at
https://perma.cc/RYE8-YPSH.
6
See Larry Buchanan, et al., Black Lives Matter May Be the Largest Movement in
U.S. History, N.Y. TIMES (July 3, 2020), available at https://perma.cc/7C7Q-2AAX.
4
and Breonna Taylor – to national attention. Ahmaud Arbery was murdered by white men
while out jogging; Breonna Taylor was killed by police in her own home.7
These highly publicized killings of African American men and women, and
subsequent protests, led to widespread calls for police accountability, combatting of
reported systemic racism in law enforcement, and introspection concerning police
interaction with people of color. A call to “defund the police” gained support among
protestors and reformers, leading to public discussion, proposals, and policymaking in
cities and states across the country.8 Proponents of the “defund the police” movement
sought to restructure and reallocate police responsibilities and funding toward other
resource investments in communities, such as addressing housing and education disparity,
mental health, poverty, and social services.9 Many law enforcement organizations and
pro-law enforcement groups took defensive postures toward these calls to “defund the
police.”10
7
Richard Fausset, What We Know About the Shooting Death of Ahmaud Arbery,
N.Y. TIMES (Feb. 7, 2022), available at https://perma.cc/9M9X-7HJL; Richard A. Oppel
Jr., et al., What to Know About Breonna Taylor’s Death, N.Y. TIMES (Apr. 26, 2021),
available at https://perma.cc/565B-3DKE.
8
Giovanni Russonello, Have Americans Warmed to Calls to ‘Defund the Police’?,
N.Y. TIMES (July 3, 2020), available at https://perma.cc/72SH-8L3F.
9
See Farah Stockman and John Eligon, Cities Ask if It’s Time to Defund Police and
‘Reimagine’ Public Safety, N.Y. TIMES (June 5, 2020), available at
https://perma.cc/2NW7-GAGT (detailing Minneapolis, Los Angeles, and New York City’s
discussions and decision-making on major police reforms).
10
Juliana Kim and Michael Wilson, ‘Blue Lives Matter’ and ‘Defund the Police’
Clash in the Streets, N.Y. TIMES (July 22, 2020), available at https://perma.cc/UHX4-F7T2
(stating that supporters of Blue Lives Matter “share a frustration with the criticism of police
5
C. The “Thin Blue Line” Flag
Counter-protests to BLM also appeared around the country during the summer of
2020. Pro-law enforcement demonstrations, e.g., the “Blue Lives Matter” movement
launched in response to murders of New York City police officers in 2014, served as a
counterpoint to the BLM and “defund the police” movements.11 The “thin blue line”
symbol, while having existed for some time, began to appear more frequently at these
counter-protests.
1. The “Thin Blue Line”
The “thin blue line” draws its origins from the “thin red line” of the British Army
during the Crimean War. During the battle of Balaklava, an unconventional two-deep line
of Scottish infantry successfully repelled a Russian cavalry charge. TREVOR ROYAL,
CRIMEA: THE GREAT CRIMEAN WAR, 1854-1856, at 266-68 (St. Martin’s Press, 2000). The
soldiers wore red uniforms and were described as a “thin red streak” or “thin red line”
standing as the line in defense of their country. Id. at 267-68. This usage and imagery of a
“thin red line” describing military as the last line of defense has continued into modern
popular culture, including the 1998 film The Thin Red Line.
While it is unclear when exactly the thin red line inspired the creation of the “thin
blue line,” the phrase and image were first publicly used in the 1920s and became more
behavior and tactics and the calls to defund the police,” and quoting a pro-police organizer
as saying that “this movement to ‘Back the Blue’ was galvanized when calls to defund and
abolish the police became a very real force in this country”).
11
See id. (describing a street altercation between supporters of law enforcement and
BLM supporters in Brooklyn, NY).
6
widely known in the 1950s due to Los Angeles Police Department (LAPD) Chief William
H. Parker.12 Tasked with cleaning up department corruption, Parker reformed the LAPD
from “local disgrace to national fame – a crisp, militaristic ‘thin blue line’ ....” Parker also
established a department-sponsored TV program called “The Thin Blue Line” and
consistently used the phrasing in interactions with the press.13
2. The “Thin Blue Line” Flag
There are at least two popular iterations of the “thin blue line” flag, one depicting a
plain black flag with a large blue stripe across and another as a version of the American
flag depicting black and white stars and stripes with a distinct blue line substituted for one
of the stripes.14 Andrew Jacob, president of Thin Blue Line USA, claims credit for creation
of the thin blue line flag in 2014, although not the image itself.15
In 2020, some counter-protesters to BLM and pro-police protesters adopted the thin
blue line image and flag as symbolic of their support for law enforcement.16 The thin blue
12
David Shaw, Chief Parker Molded LAPD Image – Then Came the ‘60s: Police:
Press treated officers as heroes until social upheaval prompted skepticism and
confrontation, L.A. TIMES (May 25, 1992), available at https://perma.cc/7W9U-Q627.
13
Id.
14
See Thin Blue Line USA, available at https://perma.cc/8BQ6-6XH4.
15
Maurice Chammah and Cary Aspinwall, The Short, Fraught History of the ‘Thin
Blue Line’ American Flag, POLITICO (June 9, 2020), available at https://perma.cc/WWQ6-
J53F.
16
See, e.g., Kim and Wilson, supra note 10 (describing pro-police supporters
waving thin blue line flags at a protest in New York City); Reuters Staff, Fact Check: U.S.
and ‘Thin Blue Line’ Flags Were Displayed at Trump Wisconsin Rally, Reuters (Oct. 27,
2020), available at https://perma.cc/LTT2-SP8F (describing how “[t]he ‘thin blue line’ has
7
line flag also has been displayed by white supremacists and violent extremists. During the
“Unite the Right” rally in Charlottesville, Virginia, in 2017, the thin blue line flag was
flown by white supremacists along with Confederate and Neo-Nazi flags and symbology.17
Due to white supremacist co-option of the thin blue line flag, some law enforcement
agencies have banned the use of the image.18
3. The Various Potential Interpretations of the Thin Blue Line Flag
The thin blue line flag has been interpreted to convey several meanings and
connotations, including showing support for law enforcement and “the men and women
who put their lives on the line every day to protect us.”19 According to Thin Blue Line
also been displayed at rallies of the ‘Blue Lives Matter’ movement ... [and that] ‘Blue Lives
Matter’ was launched in response to ‘Black Lives Matter’ …”); Alexander Mallin and
Meredith Deliso, Blue Lives Matter supporters arrested with slew of firearms outside
Kenosha after police received tip about possible shooting, DOJ says, ABC NEWS (Sept. 3,
2020), available at https://perma.cc/R4AV-NGB9.
17
Sean Rossman, ‘Thin Blue Line’: What Does An American Flag With a Blue Line
Mean?, USA TODAY (Aug. 18, 2017), available at https://perma.cc/NGL9-X45K; Tovia
Smith, Thin Blue Line Flags Stir Controversy in Mass. Coastal Community, NPR (July 31,
2020), available at https://perma.cc/MH2B-PHCH (stating how “the flag has also been
associated with white supremacists groups”).
18
Chief Kristen Roman, Thin Blue Line Update, UW-Madison Police Department
(Jan. 26, 2021), available at https://perma.cc/5BY4-QL95 (explaining that the thin blue
line image had been co-opted by white supremacists and violent extremists who attacked
the U.S. Capitol; that the image therefore had caused fear among some of the jurisdiction’s
citizens, and in light of those “relevant community concerns, perceptions, and fears,” the
thin blue line image was banned from public displays in official capacities).
19
Thin Blue Line USA Blog, What is the Meaning of the Thin Blue Line? (Jan. 23,
2018), available at https://perma.cc/4EPU-U7YT.
8
USA, the flag can also indicate pride in law enforcement and patriotism.20 Thin Blue Line
USA also describes the symbolic meaning of the space “above the blue line [as]
represent[ing] society, order and peace,” while the space below indicates “crime, anarchy
and chaos.”21 “The Thin Blue Line running between them, ‘law enforcement,’ keeps crime
from pervading into society.”22 Lastly, Thin Blue Line USA speaks to the flag representing
“courage and a tribute to those who have fallen in the line of duty.”23 Thin Blue Line USA
has explicitly denounced any use of the flag by those with racist, violent, or extremist
views, including those who protested in Charlottesville and at the United States Capitol on
January 6, 2021.24
The flag is seen by some in law enforcement as something that “‘holds [us] together’
and ‘protects us.’”25 Or the thin blue line flag can stand for “‘maintaining order during
unrest.’”26
20
Id.
21
Id.
22
Id.
23
Id.
24
Id.; Rossman, supra note 17.
25
Rossman, supra note 17 (quoting Bill Johnson, executive director of the National
Association of Police Organizations).
26
Id.
9
However, “some say it symbolizes a blatantly racist agenda.”27 As LAPD Police
Chief “Parker was known for unambiguous racism,” many view the entire history of the
thin blue line as steeped in anti-Black sentiment.28 Because the flag and symbol have been
used in counter-protests to BLM, “many believe it connotes opposition to ending police
brutality and systemic racism.”29 On occasion, additional symbols associated with violence
have been added to the flag, such as a skull associated with “the Punisher,” a comic book
character who extols extra-judicial violence and killings.30 Some believe that “[w]hat
originally began as a banner supporting law enforcement in recent years has been
increasingly hijacked by White Supremacist groups who use it as a Neo-Confederate flag
and symbol of the anti-Black Lives Matter movement.”31
In sum, the attributed meanings of the thin blue line flag run the gamut from showing
pride in and support of law enforcement to promotion of violent white supremacy.
27
Smith, supra note 17.
28
Chammah and Aspinwall, supra note 15.
29
Smith, supra note 17.
30
Chammah and Aspinwall, supra note 15.
31
Controversial “Thin Blue Line” Flag Replaces America’s “Stars and Stripes” at
Trump Rally in Waukesha, Milwaukee Independent (Oct. 26, 2020), available at
https://perma.cc/7B7L-79H4.
10
II
This Case
A. The Charges
On November 20, 2019, Smith was charged in the Circuit Court for Kent County by
way of a Criminal Information with first-degree assault, second-degree assault, first-degree
child abuse, and related charges. The charges arose from Smith’s alleged assault of his
14-year-old daughter, L.H., on October 3, 2019.
B. The Trial
Smith’s case came on the docket for trial on October 14, 2020.
1. The Defense’s Objection to the Bailiff’s Display of the Thin Blue Line Flag on
His Face Mask
Immediately prior to jury selection, defense counsel expressed concern about the
courtroom bailiffs’ display of the thin blue line flag on their face masks:
So the defense has raised a couple of questions and I wanted to formally
address those at this time. I think, first and foremost, we did not file a line or
some sort of motion to preclude this from happening but have been
communicating with the State and the Court over a period of a week or more
regarding the facial coverings that the bailiff’s [sic] have been ordered to
wear.
These facial coverings, as I understand it, are not a choice that the bailiff’s
[sic] have in terms of wearing or not wearing but, rather, have been ordered
by the elected sheriff of this county to be as part of their uniform.
These facial coverings, for the record, depict[] what is commonly [known]
as the thin blue line, American Flag. It’s a black and white copy of an
American Flag with one of the bars across instead of being in black, it is in
blue. It makes a visual representation of this concept of a thin blue line as
something that the police are standing between order and chaos. That they -
- it is inherently a political statement. It is often used as a counterpoint in
terms of arguments about whether black lives matter and if that’s a political
11
statement or not, this is often a counterpoint and an argument I think is
inherently a political statement, especially if it’s ordered by someone elected
in political office.
I think that the Court can exercise its judicial power in establishing decorum
and procedures in the courtroom and I think it, in fact, is inherent in judicial
ethics to make sure that the Defendant receives every appearance of a fair
trial and, in fact, does receive a fair trial.
The Defendant, Mr. Smith, and I have discussed this matter. He feels that the
presence of this emblem on the facial coverings of the bailiffs indicates a bias
in favor or [sic] either police of [sic] the State[.]
The trial court then asked defense counsel whether the bailiff’s uniform also
reflected a bias in favor of the police or the State. Defense counsel replied that he did not
believe that a police uniform is “an inherently political statement,” but that the symbol
displayed on the bailiff’s facemask “is used … by members of the police [and] also by
member[s] of the public to indicate a political statement in support of police and in
contradiction to some of the movements, social movements, that we’re seeing today.”
Thus, according to the defense, “having that representation on the facial coverings is
making a political statement in a place that is supposed to be unbiased and providing a
neutral and fair place for his trial today.”
The prosecutor responded: “I don’t think we can just assume that it is a political
statement…. There’s no evidence before the Court or the testimony from the sheriff or
from the deputy what exactly this means. It simply is an American Flag with a blue stripe.
There are no words present on it that convey anything.” However, if it was meant to be
political speech, the prosecutor contended, such speech would be entitled to “more
protections.” Thus, the prosecutor framed the question for the trial court as “whether this
12
mask, which it is the deputy’s constitutional right to wear, whether that infringes on the
Defendant’s constitutional right to a fair and impartial trial. And I would submit that any
potential bias … from a face covering that probably nobody even noticed would be
completely diminished by an officer wearing a uniform with a badge and a firearm.”
A few moments later, the following colloquy occurred among the court, defense
counsel, and the prosecutor:
THE COURT: Well, is there any -- I mean, is there any law that you’re aware
of that distinguishes between the sheriff’s office employees and a member of
the general public wearing something -- let’s assume, for the sake of
argument it’s a political statement, I think that’s only one possible
interpretation. I don’t think it’s the -- by any means, the only interpretation.
But is there any law that you’re aware of that distinguishes between their
ability to express a political -- I mean, the case law is pretty clear that the
courthouse is a public forum and that it’s -- political speech is
constitutionally protected and any regulation to limit it has to be narrowly
tailored to serve a compelling government interest.
[DEFENSE COUNSEL]: True.
THE COURT: Is there anything that you’re aware of that says that they are
in any different position than anybody else coming in the courthouse?
[PROSECUTOR]: Judge, the law that I’m aware of, … comes down to
whether or not a government agency would allow any sort of speech. So it
has to allow all speech or no speech.
THE COURT: Right.
The prosecutor at one point recognized that the trial court “has the authority to
establish the decorum in the courtroom … to indicate that there is no bias toward any party,
that everyone who is present receives a fair treatment[.]” The trial court responded:
Well, it’s the Court’s ability to enforce the decorum as the Court sees fit but
it has -- that has to be done within the framework of the [C]onstitution -- I
13
mean, the Court can’t … set its own rules on what it thought decorum should
be if that -- if those rules conflict with and contradict the Constitution.
After additional argument, the trial court delivered its ruling from the bench:
The Court’s going to find that while it is, you know, arguable, it’s [sic]
potential that these are intended to be a political statement, there is no
evidence to suggest that that’s what, in fact, it is; that it’s merely something
that the elected sheriff of this county has purchased for whatever reason and
required his deputies to wear that it -- that even if it does reach the level of
being only worn for -- to make some sort of political statement, that it’s
protected by the First Amendment to the Constitution in a public forum and
therefore the Court’s going to deny the request.
2. Voir Dire Through Closing Arguments
At the outset of the jury selection process, the trial court explained that questioning
of the prospective jurors would proceed “in two phases” to allow for social distancing. The
court explained that this was necessary because “people have concerns about COVID-19
and that’s understandable.” The court catalogued several measures designed to protect the
health and safety of those present, including maintaining six feet of separation between
people, “much more frequent[]” cleaning of the courthouse, the erection of “barriers” in
the courtroom, and the presence of multiple hand sanitizing stations. The court stated that
“[a]ll of these steps are based on the most recent guidance we receive from public health
organizations and we, again, are doing everything we can to try and insure your protection.”
The court then told the potential jurors: “If any of you have concerns, as we go through
this process, please let the bailiff or the sheriff’s deputies or one of the court staff know
and we’ll attempt to do everything we can to address them.”
Voir dire then proceeded. As required, the trial court asked the prospective jurors
questions designed to reveal bias in favor of or against law enforcement. After completing
14
strikes for cause, the trial court adjourned the proceedings for the day. Jury selection
resumed the next morning, October 15, 2020, with the parties exercising peremptory
challenges. The trial court directed each remaining potential juror, in turn, to walk to the
front of the room, stand in the witness box, and lower their face mask for a few seconds so
that the parties could see their full faces. The first potential juror who was acceptable to
both parties – and who therefore was going to serve as a juror – was instructed by the trial
court to “follow the bailiff,” who showed the juror where to sit in the jury box. The trial
court similarly told most of the other accepted jurors to “follow the bailiff” as they took
their seats. In several of those instances, while directing the particular juror to follow the
bailiff, the trial court also asked the juror to put their mask back on.32
After the jury was sworn, the trial court gave preliminary instructions. As part of
that presentation, the court told the jurors:
After the attorneys make opening statements, each of you will be given a
notepad and a pencil to use to take notes during the evidence portion of the
trial. Please write your juror number and nothing else on the first page of the
notepad. At the end of the day, if we go into a second day, and that’s not
anticipated at this point, the bailiff will collect the notepads and no one will
be permitted to read them.
In addition, the trial court instructed the jurors:
There may be public interest in this case and news coverage or other
discussion of it. For that reason, do not read any article or any other report or
watch or listen to any television or radio news reports about the case. If
32
For example, the court told one juror: “Sir, follow the bailiff, please. And you can
put your mask back up.” In another instance, the court told a juror: “Ma’am, you can put
your mask on and follow the bailiff there.” To another of the accepted jurors, the trial court
said: “Sir, you can put your mask back on and follow the bailiff there and he’ll tell you
where to sit.” The record reflects that trial court was vigilant in ensuring that everyone in
the courtroom complied with the mask mandate.
15
anything occurs contrary to these instructions, please write a note and give it
to the bailiff as soon as possible.
Further, the court told the jurors that they should
not express any views, comments or opinions about the case to anyone. And
if anyone does try to communicate with you or if you inadvertently overhear
something, again, make sure that you write a note or communicate that to
your forelady and she can communicate it to the bailiff or one of the
courtroom personnel.
After a hearing on a motion outside the presence of the jury, the parties delivered
their opening statements and the State presented its case-in-chief. The State’s first witness
was the alleged victim, L.H., whose testimony was interrupted by the lunch recess. When
the case resumed after lunch, the trial court told the attorneys:
And I’ll just note for you all. The bailiff did indicate to me that the alternate
juror was saying he was having some difficulty hearing [L.H.]. So I’m going
to remind her again to get up in the microphone or maybe the microphone
should be lowered so it’s coming out the bottom of the mask.
L.H. then completed her testimony for the State, after which the State called the
State Police trooper who had responded to the scene of the alleged assault on L.H. After
the State rested, the defense recalled L.H. She was the sole witness in the defense’s case.
After the parties concluded their presentations of evidence, the trial court instructed the
jury. At the outset of those instructions, the court said:
Ladies and gentlemen, the time has come for me to instruct you as to the law
that you are to apply in this case. I’m going to read through -- the bad news
is you have to listen to me read through all of these instructions. The good
news is I don’t expect you to remember them all so I send back with the jury
a copy of the instructions. So if you need to or want to refer to them during
your deliberations, you have them back there with you. If you do have any
questions during your deliberations, I would ask you to knock on the door --
have your forelady knock on the door and the bailiff will have a form that he
16
will hand to the forelady so you can fill out with the question that you have
and that’ll be presented back to the bailiff, then delivered to the Court.
After closing arguments, the court again told the jurors that, if they had any
questions, they should “knock on this door -- there are going to be two doors to this room
which is unusual for a jury room. If you have any questions, knock on this door here in the
courtroom. That’s where the bailiff will be in the courtroom.” The trial court also stated
that it was “going to put one of the deputies on the other door just to make sure that nobody
is bothering you.” Soon afterwards, the trial court directed the clerk to “swear the bailiffs,”
explaining that “we need to swear both of you since you're both on the door. Another first.”
3. Verdict and Sentence
The jury deliberated for approximately 45 minutes before reaching its verdict. The
jury found Smith guilty of second-degree assault and second-degree child abuse by a
custodian. The jury acquitted Smith of first-degree child abuse and reckless
endangerment.33
On January 4, 2021, the trial court sentenced Smith to 15 years of imprisonment for
second-degree child abuse, with all but five years suspended, and five years for
second-degree assault, to run concurrently, to be followed by a five-year term of probation.
Smith timely noted an appeal.
33
In addition, the trial court entered a judgment of acquittal on a count charging
Smith with first-degree assault, and the State’s Attorney dismissed the charge of
second-degree child abuse by a household member by entering a nolle prosequi in open
court.
17
C. Appeal
The Court of Special Appeals affirmed Smith’s convictions, holding that the display
of the thin blue line flag did not violate Smith’s right to a fair trial. Smith v. State, 253 Md.
App. 25, 44 (2021). The intermediate appellate court stated that the trial court was incorrect
when it said that a courtroom is a public forum for purposes of the First Amendment. Id.
at 35-36. To the contrary, it is a nonpublic forum and, as such, “the government has much
more flexibility to craft rules limiting speech” in a courtroom. Id. at 36 (internal quotation
marks and citation omitted).
Whether or not the trial court’s reliance on the bailiff’s First Amendment rights was
incorrect, the intermediate appellate court concluded that “the bailiff’s wearing of the ‘thin
blue line’ mask in the courtroom was not so inherently prejudicial as to deprive Smith of a
fair trial.” Id. at 35. The court acknowledged that the thin blue line flag “is perceived by
many as a racist symbol antithetical to the Black Lives Matter Movement.” Id. at 40.
However, the court noted that others “perceive the ‘thin blue line’ flag to be a general
symbol of support of law enforcement or pride in policing.” Id. The court reasoned that,
because “the symbol of the ‘thin blue line’ flag does not have one generally accepted
meaning but instead is interpreted as meaning a variety of different things,” the “context in
which the ‘thin blue line’ face mask was displayed in this case must be considered.” Id. at
43-44. The court continued:
Specifically, the “thin blue line” flag at issue in this case appeared on the face
mask of a uniformed and armed law enforcement officer serving as a
courtroom bailiff. Inasmuch as the “thin blue line” flag is seen by some as a
symbol of general support for law enforcement, a reasonable juror may have
inferred that the law enforcement officer wearing the “thin blue line” flag
18
face mask was doing so in order to display his pride in being a law
enforcement officer.
Id. at 44 (footnotes omitted). For this reason, the Court of Special Appeals “reject[ed]
Smith’s inherent prejudice argument and [held] that the wearing of a ‘thin blue line’ flag
face mask by a uniformed courtroom bailiff did not constitute inherent prejudice depriving
Smith of his right to a fair trial.” Id.However, the Court of Special Appeals made clear that its holding was not an
endorsement of the display of the thin blue line flag in courtrooms:
We are mindful to make explicit what this opinion does not hold. We do not
suggest that a bailiff wearing a “thin blue line” flag face mask is a good
practice, nor do we suggest that prejudice can never arise in different
circumstances in which actual prejudice rather than inherent prejudice is
alleged. Indeed, a litigant may have a reasonable argument that a bailiff
wearing a “thin blue line” flag face mask caused actual prejudice in a case
involving, for example, allegations of excessive force or other misconduct
by a law enforcement officer, or in a case in which a law enforcement
officer’s credibility is weighed against that of a layperson. Our opinion in
this case does not foreclose such an argument. Furthermore, a prohibition on
the wearing of “thin blue line” symbols by courthouse staff may be a prudent
prophylactic measure to avoid issues on appeal, as well as to err on the side
of caution to ensure litigants’ right to a neutral and fair tribunal. Here,
however, we do not deal with allegations of actual prejudice. Our holding,
therefore, is limited to the inherent prejudice argument raised in this case[.]
Id. at 44-45 (emphasis in original).
Smith filed a petition for certiorari, in which he asked this Court to decide the
following question: “In a reported case of first impression, did the Court of Special Appeals
wrongly hold that the courtroom bailiff’s face mask depicting the ‘thin blue line’ was not
19
inherently prejudicial to Petitioner?” On February 9, 2022, we granted Smith’s petition.
Smith v. State, 477 Md. 382 (2022).34
III
Standard of Review
Whether the display of the thin blue line flag mask was inherently prejudicial
presents a question of law, which we review de novo. See, e.g., State v. Robertson, 463 Md.
342, 358 (2019). We also review constitutional claims, such as Smith’s claim based on the
Sixth Amendment, de novo. See, e.g., Vigna v. State, 470 Md. 418, 437 (2020).
IV
Discussion
Smith argues that the bailiffs’ display of the thin blue line flag on their face masks
in the courtroom was inherently prejudicial and therefore violated his Sixth Amendment
right to a fair trial. He contends that the thin blue line symbol posed an unacceptable risk
of impermissible factors coming into play because it injected bias into his trial. According
to Smith, at the very least, the thin blue line symbol conveyed general support for law
enforcement. However, Smith argues that it also could have been interpreted by jurors as
presenting a “loyalty test,” which effectively asked jurors: “[W]hich side are you on? Do
you stand with civilized society, or the criminal element?” Or, Smith observes, the jurors
could have interpreted the display of the thin blue line symbol as expressing support for
34
In his petition for certiorari, Smith also sought review of a question concerning
the State’s rebuttal closing argument. We did not include that question in the writ of
certiorari that we issued.
20
white supremacy. According to Smith, all of the possible interpretations of the thin blue
line symbol communicate biases that fundamentally detract from the neutrality and
impartiality essential to a criminal trial. Smith further contends that the fact that the symbol
was worn by the bailiffs – officers of the court – increased the risk that the jurors would
decide the case based on bias, rather than on the evidence presented to them, because the
jurors would conclude that the court approved of the messages conveyed by the thin blue
line symbol.
The State, on the other hand, contends that the multiple meanings a juror could draw
from the thin blue line flag dooms Smith’s claim because a finding of inherent prejudice
requires that a courtroom practice convey one clear and unmistakable message that
comments on the particular defendant’s case. According to the State, if the jurors noticed
the symbol at all, they most likely would have seen it as expressing pride in law
enforcement, which would not undermine Smith’s right to a fair trial. In this regard, the
State observes that a uniformed bailiff does not hold the same place of authority as a trial
judge presiding over the case. Thus, according to the State, while a judge wearing a pro-law
enforcement message in a criminal trial would be problematic, a bailiff can wear a symbol
expressing pride in their profession without infringing on a defendant’s right to a fair trial.
Any concern about the jurors being swayed by such a pro-law enforcement message, the
State says, is ameliorated by the fact that the jurors were screened for pro-law enforcement
bias during voir dire.
Finally, the State contends that Smith failed to create a detailed enough record to
establish inherent prejudice. According to the State, the record reveals little about what
21
jurors actually saw. For example, Smith failed to make a record of the specific location
where the bailiffs were positioned in the courtroom. In the absence of such a record, the
State contends, Smith cannot show that there was an unacceptably high risk of the jurors
receiving any of the messages that the thin blue line flag may have conveyed.
We agree with Smith. The thin blue line flag conveys a pro-law enforcement
message that bears on the criminal justice system. As such, it has no place in the courtroom
in a criminal trial. We conclude that the display of the flag was inherently prejudicial in
this case because it was court agents who wore the symbol and because of the fraught
national atmosphere concerning policing at the time Smith’s trial went forward.
A. The Right to a Fair Trial and Inherent Prejudice
The right to a fair trial is guaranteed by the Sixth Amendment to the United States
Constitution, as incorporated against the States by the Fourteenth Amendment. Duncan v.
Louisiana, 391 U.S. 145, 148-49 (1968). “The Sixth Amendment’s guarantee of a fair trial
and impartial jury is the touchstone of our justice system.” Hunt v. State, 345 Md. 122, 146
(1997) (footnote omitted); see also Estelle v. Williams, 425 U.S. 501, 503 (1976) (right to
a fair trial is a “fundamental liberty secured by the Fourteenth Amendment”). A fair
criminal trial requires that the jurors “be without bias or prejudice for or against the
defendant and that their minds be free to hear and impartially consider the evidence and
render a fair verdict thereon.” Hunt, 345 Md. at 146.
Events or practices that inject outside influences into the courtroom, if sufficiently
prejudicial, can violate a defendant’s right to a fair trial. A finding either of actual prejudice
or inherent prejudice is sufficient to demonstrate a violation of the Sixth Amendment. To
22
prove actual prejudice, the defendant must show some actual prejudicial effect on the jurors
based on what transpired in the courtroom. See, e.g., Irvin v. Dowd, 366 U.S. 717, 727-28
(1961) (describing how, in a rural community, substantial pretrial publicity in a murder
case actually prejudiced the defendant’s right to a fair trial).
A showing of inherent prejudice does not require proof that the complained-of
practice actually affected the jurors’ decision-making process. As the Supreme Court has
stated, “[t]he actual impact of a particular practice on the judgment of jurors cannot always
be fully determined.” Williams, 425 U.S. at 504. Yet, there is “no doubt that the probability
of deleterious effects on fundamental rights calls for close judicial scrutiny.” Id. “Courts
must do the best they can to evaluate the likely effects of a particular procedure, based on
reason, principle, and common human experience.” Id. A defendant establishes inherent
prejudice if the defendant shows that the challenged practice presented “‘an unacceptable
risk … of impermissible factors coming into play.’” Holbrook v. Flynn, 475 U.S. 560, 570
(1986) (quoting Williams, 425 U.S. at 505). This is a difficult showing to make. Hill v.
Ozmint, 339 F.3d 187, 199 (4th Cir. 2003).
Several of the leading inherent prejudice cases have concerned whether courtroom
decorum or security measures posed an unacceptable risk that the jurors would make
judgments based on factors outside of the evidence. In Estelle v. Williams, the defendant
was unable to post bail and therefore was in custody. He wore prison-issued clothing
throughout his trial. See Williams, 425 U.S. at 509-11. He argued to the Supreme Court
that his prison garb had effectively marked him as guilty in the eyes of the jury, thereby
infringing on the presumption of innocence. See id. at 503-04. The Court agreed that
23
prison-issued clothing would be a “constant reminder of the accused’s condition,” and that
it was “so likely to be a continuing influence throughout the trial that … an unacceptable
risk is presented of impermissible factors coming into play.” Id. at 504-05. The Court also
explained that, unlike shackles used to restrain a disruptive defendant, requiring a
defendant to go to trial in prison clothing does not further an essential state policy. Id. at
505. Nevertheless, the Court affirmed the judgment of conviction because the defendant
failed to object at trial to wearing the prison-issued clothing. See Williams, 425 U.S. at
512-13.
In Holbrook v. Flynn, six defendants were tried together for allegedly robbing a
bank. Holbrook, 475 U.S. at 562. As the proceedings began, four uniformed state troopers
sat in the spectator’s section behind the bar directly behind the defendants. Id. Defense
counsel objected that the uniformed officers “would suggest to the jury that the defendants
were of ‘bad character.’” Id. at 563. The trial court ruled that the defendants would not be
prejudiced by these state troopers sitting behind the bar, and in any event, voir dire would
reveal whether the potential jurors were likely to draw adverse inferences from the
troopers’ presence, effectively guaranteeing that the defendants received a fair trial. See id.After jury selection was completed, the trial court gave its final ruling on Holbrook’s
objection. Id. at 565. The court found that there was a valid security reason to have the
troopers there and noted that 51 of 54 prospective jury members had stated that there was
no “inference of guilt” associated with the trooper’s presence; the remaining three had not
precisely answered the question. Id. Concluding that the presence of the troopers would
not affect the defendants’ ability to receive a fair trial, the trial court overruled Holbrook’s
24
objection, and the trial began. Three defendants were acquitted; Holbrook and two others
were convicted. Id.After the Supreme Court of Rhode Island affirmed the convictions, Holbrook sought
habeas corpus review in federal court. Eventually, his habeas petition was considered by
the Supreme Court. The Court acknowledged the requirement under the Sixth Amendment
that “one accused of a crime is entitled to have his guilt or innocence determined solely on
the basis of the evidence introduced at trial, and not on grounds of official suspicion,
indictment, continued custody, or other circumstances not adduced as proof at trial.” Id. at
567 (internal quotation marks and citation omitted). However, not “every practice tending
to single out the accused from everyone else in the courtroom must be struck down.” Id.The Court observed that “jurors are quite aware that the defendant appearing before them
did not arrive there by choice or happenstance[.]” Id. Thus, the Court explained that it had
“never tried, and could never hope, to eliminate from trial procedures every reminder that
the State has chosen to marshal its resources against a defendant to punish him for allegedly
criminal conduct.” Id.The Court then considered “whether the conspicuous, or at least noticeable,
deployment of security personnel in a courtroom during trial is the sort of inherently
prejudicial practice that, like shackling, should be permitted only where justified by an
essential state interest specific to each trial.” Id. at 568-69. The Court answered that
question in the negative, explaining:
The chief feature that distinguishes the use of identifiable security officers
from courtroom practices we might find inherently prejudicial is the wider
range of inferences that a juror might reasonably draw from the officers'
25
presence. While shackling and prison clothes are unmistakable indications of
the need to separate a defendant from the community at large, the presence
of guards at a defendant’s trial need not be interpreted as a sign that he is
particularly dangerous or culpable. Jurors may just as easily believe that the
officers are there to guard against disruptions emanating from outside the
courtroom or to ensure that tense courtroom exchanges do not erupt into
violence. Indeed, it is entirely possible that jurors will not infer anything at
all from the presence of the guards. If they are placed at some distance from
the accused, security officers may well be perceived more as elements of an
impressive drama than as reminders of the defendant’s special status. Our
society has become inured to the presence of armed guards in most public
places; they are doubtless taken for granted so long as their numbers or
weaponry do not suggest particular official concern or alarm.
Id. at 569. The Court concluded that “‘reason, principle, and common human experience’
counseled against a presumption that any use of identifiable security guards in the
courtroom is inherently prejudicial.” Id. (quoting Williams, 425 U.S. at 504). Given the
“variety of ways in which such guards can be deployed, … a case-by-case approach is more
appropriate.” Id.The Court then applied this case-specific approach to Holbrook’s case. In so doing,
the Court made clear that, when considering a claim of inherent prejudice, the subjective
state of mind of the jurors is not dispositive: “If a procedure employed by the State involves
such a probability that prejudice will result that it is deemed inherently lacking in due
process, little stock need be placed in jurors’ claims to the contrary.” Id. at 570 (internal
quotation marks and citation omitted). This is the case because
[e]ven though a practice may be inherently prejudicial, jurors will not
necessarily be fully conscious of the effect it will have on their attitude
toward the accused. This will be especially true when jurors are questioned
at the very beginning of proceedings; at that point, they can only speculate
on how they will feel after being exposed to a practice daily over the course
of a long trial. Whenever a courtroom arrangement is challenged as
inherently prejudicial, therefore, the question must be not whether jurors
26
actually articulated a consciousness of some prejudicial effect, but rather
whether “an unacceptable risk is presented of impermissible factors coming
into play[.]”
Id. (quoting Williams, 425 U.S., at 505).
Turning to the objective consideration of the presence of the four troopers at
Holbrook’s trial, the Court determined that this police presence was not inherently
prejudicial to Holbrook’s right to a fair trial. While the Court did not “minimize the threat
that a roomful of uniformed and armed policemen might pose to a defendant’s chances of
receiving a fair trial,” the Court could not “find an unacceptable risk of prejudice in the
spectacle of four such officers quietly sitting in the first row of a courtroom’s spectator
section.” Id. at 570-71. The Court did not “believe that the use of the four troopers tended
to brand respondent in [the jurors’] eyes ‘with an unmistakable mark of guilt.’” Id. at 571(quoting Williams, 425 U.S. at 518 (Brennan, J., dissenting)). Four troopers “are unlikely
to have been taken as a sign of anything other than a normal official concern for the safety
and order of the proceedings. Indeed, any juror who for some other reason believed
defendants particularly dangerous might well have wondered why there were only four
armed troopers for the six defendants.” Id. The Court noted, however, that even if there
was a “slight degree of prejudice attributable to the troopers’ presence” at Holbrook’s trial,
the State had a valid basis to employ this level of security, given the need to maintain
custody over the defendants, who had been denied bail as flight risks. Id. In this regard, the
presence of the troopers behind the bar separating the defense table from the courtroom
27
gallery differed from the wearing of prison garb at issue in Williams, which did not further
any valid state interest. See id. at 571-72.35
Another context in which courts around the country have considered claims of
inherent prejudice is messaging by spectators in the courtroom. Although there has been
no Supreme Court case holding courtroom spectators’ conduct to have been inherently
prejudicial to a defendant’s right to a fair trial, see Carey v. Musladin, 549 U.S. 70, 76-77
(2006), some state courts have reached that conclusion based on the facts of the cases
before them. For example, State v. Franklin, 327 S.E.2d 449 (W. Va. 1985), involved the
trial of a defendant charged with driving under the influence of alcohol, resulting in death.
At Franklin’s three-day trial, between 10 and 30 people, including a Sherriff in uniform,
35
In a vein similar to Holbrook, this Court in Bruce v. State, 318 Md. 706 (1990),
considered whether enhanced security measures employed at a criminal trial were
inherently prejudicial to the defendant’s right to a fair trial. There, the defendant was
charged with multiple murders and other violent felonies. Id. at 711. There was “enhanced
security” at Bruce’s trial, including armed guards around and on the roof of the courthouse,
new metal detectors, and a deputy sheriff posted close to the defendant in the courtroom,
as well as other uniformed and plainclothes officers elsewhere in the courtroom. See id. at
716, 720-22. With respect to the security measures outside the courtroom, the Court held
that Bruce “failed to establish any unacceptable risk of prejudice from the limited
description, on the record,” of those protocols. See id. at 719-20. The Court concluded that
“[t]he inferences to be drawn from the security measures outside the courtroom were not
necessarily that the defendant was dangerous or untrustworthy, but could be that there was
a potential for violence directed at the defendant or the witnesses in the case.” Id. at 719.
The Court then reviewed the in-courtroom security measures. Id. at 720-22. The
Court distinguished a heightened security officer presence in the courtroom from a
defendant being shackled or wearing a prison uniform or other measures that can “create
the impression in the minds of the jury that the defendant is dangerous or untrustworthy.”
Id. at 721 (internal quotation marks and citation omitted). The Court held that the
courtroom security measures during Bruce’s trial were not unreasonable based on the
record. Id. at 721-22.
28
prominently displayed Mothers Against Drunk Drivers (“MADD”) buttons as they sat
directly in front of the jury in the courtroom. Id. at 454. Defense counsel repeatedly
requested a mistrial or alternatively asked the court to order the removal of the MADD
buttons, or the spectators wearing them, from the courtroom. Id. The court granted no relief.
See id.
On appeal, West Virginia’s high court noted the right of defendants and the public
under its State Constitution to an “open public trial in every criminal case.” Id. at 455. This
requires balancing “the right of public access to a criminal trial” with “the constitutional
right of a defendant to a fair trial.” Id. The Court observed that “[a]n important element in
this process is insuring that the jury is always insulated, at least to the best of the court’s
ability, from every source of pressure or prejudice.” Id. The Court held that, in Franklin’s
case, the trial court had not sufficiently protected the right to a fair trial:
In this case the spectators were clearly distinguishable from other visitors in
the courtroom and, led by the sheriff, they constituted a formidable, albeit
passive, influence on the jury. Indeed, the court’s cardinal failure in this case
was to take no action whatever against a predominant group of ordinary
citizens who were tooth and nail opposed to any finding that the defendant
was not guilty. This Court quite simply cannot state that the mere presence
of the spectators wearing MADD buttons and the pressure and activities of
the uniformed sheriff leading them did not do irreparable damage to the
defendant’s right to a fair trial by an impartial jury.
Id.; see also Long v. State, 151 So. 3d 498, 501-02, 505 (Fla. Dist. Ct. App. 2014)
(defendant convicted of molestation and sexual battery by a person in familial or custodial
authority; on appeal, convictions reversed because the presence at trial of 11-12 men
wearing jackets with the insignia “Bikers Against Child Abuse” was inherently
prejudicial).
29
In other instances, courts have concluded that clothing or accessories worn by
spectators and other conduct by non-courtroom staff that occurred inside or outside the
courtroom did not rise to the level of inherent prejudice. For example, in People v. Ramirez,
479 P.3d 797, 821 (Cal. 2021), cert. denied, 142 S. Ct. 784 (2022), the California Supreme
Court rejected a claim of inherent prejudice, where approximately 18 uniformed officers
appeared in the courtroom gallery on the final day of trial for a defendant charged with
murdering a police officer. The Court concluded that there was a “wide range of reasonable
inferences that the jury could have drawn from the officers’ presence,” including
supporting the victim’s family, and/or “show[ing] camaraderie for one another.” Id. at 822.
Although the Court stated that jurors “may be affected by the presence of uniformed police
officers regardless of what they believe the officers’ intentions to be,” it concluded that the
“risk of undue influence” from the showing of police in the courtroom was not
“unacceptably high.” Id.; see also State v. Dillon, 788 N.W.2d 360, 363 (S.D. 2010)
(holding that a display of children’s shoes in a hallway that the jury walked through did
not inherently prejudice the defendant accused of raping multiple children); Billings v.
Polk, 441 F.3d 238, 246-47 (4th Cir. 2006) (holding that there was not inherent prejudice
when an alternate jury member wore a t-shirt displaying the message “No Mercy – No
Limits”).
We glean from the cases we have discussed above that claims of inherent prejudice
are properly decided based on the unique facts and circumstances of each case. To prevail
on a claim of inherent prejudice, the defendant must: (1) have objected to the challenged
practice in the trial court, (2) demonstrate, based on the record of the proceeding in the trial
30
court, that the challenged practice was observable by the jury; and (3) establish that the
challenged practice created an unacceptable risk that impermissible factors would come
into play in the jury’s determination of the case. If the defendant meets all of these
requirements, the State may attempt to show that the challenged practice was necessary to
further a compelling governmental interest. We now apply this case-by-case approach to
this case and consider whether the bailiffs’ display of the thin blue line flag on their face
masks was inherently prejudicial to Smith’s right to a fair trial.
B. The Bailiffs’ Display of the Thin Blue Line Flag on Their Face Masks Was
Inherently Prejudicial.
1. As a Political Message Bearing on the Criminal Justice System, the Thin Blue
Line Has No Place in a Criminal Trial.
Courtrooms “are a stage for public discourse, a neutral forum for the resolution of
civil and criminal matters. The unique setting that the courtroom provides is itself an
important element in the constitutional conception of trial, contributing a dignity essential
to the integrity of the trial process.” State v. Jaime, 233 P.3d 554, 559 (Wash. 2010)
(internal quotation marks and citation omitted); see also Allen v. Commonwealth, 286
S.W.3d 221, 230 n.27 (Ky. 2009) (“We must remind ourselves that a courtroom is
committed to being a neutral environment – a holy shrine of impartiality in its resolutions
of differences, and a place dedicated to fairness and equal treatment under law[.]”).
As the judicial officer presiding over the courtroom, the trial judge has the
responsibility to ensure that the courtroom in every case is a venue where litigants can
present evidence and juries render decisions based solely on that evidence. See Berner v.
Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (observing that, within the “staid environment”
31
of a courtroom, “the presiding judge is charged with the responsibility of maintaining
proper order and decorum. In carrying out this responsibility, the judge must ensure that
the courthouse is a place in which rational reflection and disinterested judgment will not
be disrupted”) (cleaned up). “[I]t is beyond serious question that the proper discharge of
these responsibilities includes the right (and, indeed, the duty) to limit, to the extent
practicable, the appearance of favoritism in judicial proceedings, and particularly, the
appearance of political partiality.” Id.; see also In re Elrich S., 416 Md. 15, 38 (2010) (“A
judge must, of course, have the ability to control his or her courtroom, to assure that judicial
proceedings are conducted fairly, efficiently, and with dignity and decorum.”) (internal
quotation marks and citation omitted).36
In a criminal case, the trial judge’s responsibility to maintain “a neutral, politically
impartial environment[] dedicated to fairness and equal treatment of litigants,” Berner, 129
36
The Court of Special Appeals held, and the parties before us agree, that a
courtroom is not a public forum; therefore, the government may restrain speech in a
courtroom, as long as such regulation is reasonable. See, e.g., Mezibov v. Allen, 411 F.3d
712, 718 (6th Cir. 2005) (“The courtroom is a nonpublic forum, where the First
Amendment rights of everyone (attorneys included) are at their constitutional nadir. In fact,
the courtroom is unique even among nonpublic fora because within its confines we
regularly countenance the application of even viewpoint-discriminatory restrictions on
speech.”) (citation removed); Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (“A
courthouse – and, especially, a courtroom – is a nonpublic forum.”); Minnesota Voters All.
v. Mansky, 138 S. Ct. 1876, 1885 (2018) (“In a nonpublic forum … the government has
much more flexibility to craft rules limiting speech…. The government may reserve such
a forum ‘for its intended purposes, communicative or otherwise, as long as the regulation
on speech is reasonable and not an effort to suppress expression merely because public
officials oppose the speaker’s view.’”) (citing Perry Ed. Assn. v. Perry Local Educators’
Assn., 460 U.S. 37, 46 (1983)). We agree. The State does not defend the circuit court’s
ruling on the ground that the bailiffs had the right under the First Amendment to wear the
thin blue line mask during Smith’s trial.
32
F.3d at 27, takes on Sixth Amendment significance. When political messages enter the
courtroom during a criminal trial, so too does the risk that the jurors will not decide an
accused’s case based solely on the evidence. It is the trial judge’s job to keep political and
other inappropriate messages from entering the courtroom to the extent possible, and
thereby ensure that there is not an unacceptable risk of impermissible factors coming into
play. See Holbrook, 475 U.S. at 571-72.
In a criminal trial, in which the State is bringing to bear its law enforcement
resources against the accused, an extraneous message of support for law enforcement is
improper. It injects a pro-law enforcement variable into what should be a neutral
environment, potentially adding weight to the prosecution’s side of the scales based on
matters that are not in evidence. Certainly, not every pro-law enforcement message in a
courtroom will rise to the level of inherent prejudice. One or two people wearing Fraternal
Order of Police baseball caps as they watch a criminal trial from the gallery will
presumably cause less concern than 50 spectators simultaneously displaying a recognizably
pro-law enforcement message. At some point along the continuum of possible pro-law
enforcement messaging in a courtroom, the circumstances surrounding a particular display
will cause it to cross the line from inappropriate to inherently prejudicial.37
37
As discussed above, the State may justify a courtroom practice that conveys a
prejudicial message by demonstrating that the challenged practice was necessary to further
a compelling governmental interest. See Holbrook, 475 U.S. at 568-69; Bruce, 318 Md. at
721. The State has not attempted to defend the circuit court’s ruling on the ground that the
display of the thin blue line flag mask furthered an essential state interest. Like everyone
else in the courtroom, the bailiffs were required to wear face masks in light of the
COVID-19 emergency. But they could have done their part to lessen the risk of viral
33
The State argues that the display of the thin blue line flag at Smith’s trial did not
cross that line because it did not convey one clear, unmistakable meaning to the jurors.
Although the State is correct that the thin blue line can mean different things to different
people, we disagree with the State’s contention that this undermines Smith’s claim of
inherent prejudice. None of the meanings reasonably associated with the thin blue line had
any place at Smith’s criminal trial.38
As discussed above, the thin blue line, among other things, can be viewed as
expressing general support for law enforcement, or expressing the belief that police stand
between civilized society and criminals, or expressing support for white supremacy.
Although these messages range from benign to malevolent, none of them should be
conveyed to the jury in a criminal trial. All of them risk suggesting to the jury that they
should side with law enforcement. Thus, even if we assume that the jurors gave the most
benign meaning possible to the bailiffs’ display of the thin blue line – that the sheriff’s
deputies were expressing general support for, and pride in, their chosen profession of law
transmission just as effectively by wearing a mask that did not display the thin blue line
flag.
38
A police officer testified as a witness for the State at Smith’s trial, but that
circumstance is not essential to our analysis. An extraneous pro-law enforcement message
would also be inappropriate at a criminal trial that did not include any law enforcement
witnesses. Similarly, it is immaterial that the defense did not raise any issues involving
alleged police misconduct. The credibility of a particular police officer or the validity of a
particular police action need not be called into question in order for a court agent’s display
of a pro-law enforcement message to carry an unacceptable risk that it will influence the
jurors.
34
enforcement – it nevertheless was an inappropriate message to convey to the jury in a
criminal trial.39
The question we therefore must decide is: was the display of the thin blue line
symbol at Smith’s trial merely inappropriate, or did it rise to the level of inherently
prejudicial to Smith’s right to a fair trial? We conclude that the display of the thin blue line
flag was inherently prejudicial because it was the bailiffs who conveyed the message, and
because the thin blue line symbol was particularly evocative in the immediate aftermath of
the protests and counter-protests that occurred in 2020.40
39
In this regard, this case is distinguishable from Holbrook, where some of the
possible messages the jurors could have drawn from the presence of the officers behind the
defendant would not have suggested that the court viewed the defendant as dangerous and
that they should therefore side with law enforcement and against Holbrook when delivering
their verdict. Here, the most benign of the possible messages that the jurors could have
gleaned from the display of the thin blue line flag was pro-law enforcement.
40
The State argues that, in order to establish inherent prejudice, Smith must show
that “all the jurors … recognized the symbol and [drew] some type of meaning from it.”
The State cites no authority for this proposition, and we discern none in the cases we have
reviewed concerning inherent prejudice. Given the nature of the inherent prejudice inquiry,
we need not determine that all the jurors, or any particular percentage of the jurors,
recognized the thin blue line symbol and attributed meaning to it. In analyzing inherent
prejudice, a court assesses the risk of prejudice associated with a courtroom practice or
message, not how a particular group of jurors actually reacted to the practice or message.
As discussed above, by the time of the trial, the thin blue line was widely recognized in the
United States as a pro-law enforcement symbol, and indeed was viewed as controversial
and polarizing. We are not dealing here with a symbol that was invented shortly before
trial and/or was not previously disseminated widely. To the extent Judge Gould is of the
view that the thin blue line symbol may not have been widely recognized in the United
States by October 2020 as controversial, see Dissent Slip Op. at 1 n.1, we must respectfully
disagree. Nor do we agree with Judge Gould’s view (Dissent Slip Op. at 1-2) that Smith
needed to produce evidence “as to how the citizens of Kent County understood what the
Sheriff was trying to convey with the use of such a mask.” There was no information
embargo in place in Kent County in the years leading up to Smith’s trial in October 2020
that would have led its citizens to fail to recognize the thin blue line flag as a pro-law
35
2. Because the Bailiff Is an Agent of the Court, the Bailiffs’ Display of the Thin
Blue Line Flag Was Particularly Problematic.
Smith argues that the bailiffs’ display of the thin blue line symbol heightened the
potential for prejudice “because it gave the impression that the court approved of its
meanings.” We agree.
As the Supreme Court observed in Parker v. Gladden, 385 U.S. 363, 365 (1966),
“the official character of the bailiff – as an officer of the court as well as the State – beyond
question carries great weight with a jury[.]” Not only is the bailiff an “officer of the court,”
a term often associated with the attorneys who appear before it; the bailiff is an agent of
the court. See Turpin v. Todd, 519 S.E.2d 678, 682 (Ga. 1999) (“The very nature of the
bailiff’s position serves to heighten the prejudicial potential a bailiff’s communication may
have on the jury.”); Lewis v. Pearson, 556 S.W.2d 661, 664 (Ark. 1977) (“Because of the
close relationship between the bailiff and the court itself any action on the part of the bailiff
concerning the jury should be subject to close scrutiny by the court.”); Reynolds v. Allied
Emergency Services, PC, 193 So. 3d 625, 631 (Miss. App. 2016) (finding prejudice in civil
case where erroneous jury instructions were delivered to the jury by “the bailiff – an
extension of the court and trial judge – … which carrie[d] with it the imprimatur of
authority”) (internal quotation marks and citation omitted); State v. Gregory, 147 P.3d
1201, 1247 (Wash. 2006) (en banc) (“[I]n the eyes of the jury, the bailiff is an agent of the
enforcement symbol. In short, we are confident that the “thin blue line” was sufficiently
well known as a pro-law enforcement symbol throughout the United States – including
Kent County – by the time of Smith’s trial to create the type of risk that supports a finding
of inherent prejudice.
36
trial judge.”), overruled on other grounds by State v. W.R., Jr., 336 P.3d 1134 (2014); State
v. Kelley, 451 S.E.2d 425, 430 (W. Va. App. 1994) (“Clearly, the bailiff, in his capacity as
attendant to the judge, is an extension of the court.”). Thus, any political message that
bailiffs convey to the jury – verbally or non-verbally – in the course of performing their
duties may well be imputed by the jurors to the court.41 For this reason, the display of the
thin blue line symbol by at least two bailiffs42 carried a much greater potential for prejudice
than, for example, if two spectators seated separately in the gallery of the courtroom had
worn the same face masks.43 See Brief of Amici Curiae The Public Justice Center, et al. 8-
9 (citing Hon. Arthur Gilbert, Juror Perceptions: How They Judge the Judges, 17 Judges
J. 14, 16-18 (1978), which discussed a survey of thousands of jurors, finding that “[j]udges
are the ones who most directly affect the way in which jurors perceive th[e] system,” and
41
In this case, the symbol that the court agents conveyed was the thin blue line flag.
We would reach the same conclusion concerning a court agent’s display of any other
symbol that creates an unacceptable risk of the jury deciding a criminal case based on
impermissible factors.
42
The record reflects that at least two Sheriff’s deputies served as bailiffs for at least
part of Smith’s trial. Given that the Sheriff of Kent County at the time was requiring all his
deputies to wear the thin blue line flag face mask, we believe the fair inference to draw is
that all deputies who served as bailiffs at Smith’s trial displayed the thin blue line symbol
while they were in the presence of the jury. The State has acknowledged that there were
multiple deputies in the courthouse during Smith’s trial, and that they all displayed the thin
blue line on their face masks.
43
This is not to say that, if a trial judge notices a spectator wearing an article of
clothing that the judge believes may carry a risk of prejudice to a defendant receiving a fair
trial, the judge is powerless to take appropriate action.
37
cautioning that “court personnel” are “a direct reflection on you the judge, and
consequently a reflection on the judiciary in general”).44
The State downplays the significance of the bailiff’s role as the court’s agent,
emphasizing that the bailiff “is not identical to the court.” For example, the State observes,
a “bailiff can wear a police uniform without impeding the fairness of court proceedings or
signaling a ‘pro-prosecution’ message. The same could not be said for a judge.” (Footnote
omitted.) Relatedly, the State contends that there is no material distinction between a police
uniform and a thin blue line flag face mask. That is, if a bailiff can wear the uniform in the
courtroom without running afoul of the Sixth Amendment, it should follow that the thin
blue line symbol is permissible as well.
We are confident that jurors view wearing a uniform as normal for a security officer
and think nothing of it. What is not normal is adding a controversial political symbol to an
officer’s clothing or accessories. The same juror who would give no thought to seeing a
44
In his Dissenting Opinion, Judge Gould seems to suggest that this Court can, by
rule, dictate that Sheriff’s deputies – when acting as bailiffs – not display political messages
on their persons, but that a trial judge may not do so. See Dissent Slip Op. at 1, 8. As the
judicial officer responsible for ensuring that a defendant receives a fair trial and for
maintaining proper decorum in the courtroom generally, a trial judge has the authority to
direct a bailiff not to display a political message in court, even if the bailiff is doing so at
the direction of a sheriff. Cf. Opinion Letter to the Honorable Paul H. Weinstein, 78 Md.
Op. Atty. Gen. 103 (Md. A.G.), 1993 WL 340439, at *3 (Mar. 15, 1993) (Attorney General
of Maryland opining that County Administrative Judge may require the State’s Attorney
and the State’s Attorney’s staff to comply with courthouse security procedures, despite the
State’s Attorney’s status as a constitutionally established office separate from the
Judiciary).
38
bailiff in uniform might well notice and attribute meaning to a bailiff wearing a political
symbol on their clothing or elsewhere on their person.45
The State also contends that the bailiffs did not intend to comment on Smith’s case
through their donning of the face masks. Assuming that is true, it is of no moment. We are
not concerned here with the bailiffs’ subjective intent in conveying a particular message,
or for that matter, with the Sheriff’s intent in requiring his deputies to wear the masks,46
but rather with the potential effects of the jurors’ receipt of any of the improper messages
presented by the thin blue line symbolism as displayed on the bailiffs’ masks. As discussed,
none of the messages conveyed by the thin blue line flag mask had any place in a criminal
courtroom.47
45
We disagree with Judge Gould’s assessment that, because the Sheriff of Kent
County is an elected official, the jurors would not view his deputies as agents of the court
while they served as bailiffs. See Dissent Slip Op. at 5. It is clear from the record that the
jury understood from the court’s instructions that the bailiffs were to be the intermediaries
between themselves and the court. The court told the jurors that, if they had any questions
or concerns during the course of the trial, they should notify the bailiffs. It was equally
clear to the jurors that the bailiffs were following the instructions of the trial court. We
have no doubt that the jurors understood the bailiffs to be the court’s agents. And, indeed,
the deputies were the court’s agents while performing their duties as bailiffs.
46
We pause to note that we in no way ascribe any nefarious motive to the Sheriff in
directing his deputies to wear the thin blue line flag mask. In addition, nothing in this
opinion should be interpreted as indicating that we fail to appreciate the immense
challenges that the trial court faced in October 2020 when it presided over Smith’s trial.
47
During oral argument, Smith’s attorney indicated that a trial court may consider
the State’s objection to the display of a symbol that threatens to undermine the neutrality
of the courtroom and, consequently, the fairness of the proceedings. We agree.
39
3. The Display of the Thin Blue Line Flag in a Criminal Trial Was Particularly
Problematic in Late 2020.
The risk of impermissible factors coming into play at Smith’s trial was heightened
because of the moment in time when the trial occurred. As discussed above, Smith’s trial
went forward in the immediate aftermath of George Floyd’s murder, large protests in
support of BLM, and pro-police counter-protests. Some of these protests led to violence.48
With movements to “defund the police” in full swing, many law enforcement officers felt
that they themselves and their profession were under attack.49 Additionally, a survey of
nearly 200 departments by the Police Executive Research Forum showed a 45% increase
in the retirement rate and 18% increase in resignations during the 12-month period between
April 2020 and March 2021, when compared to the same period a year earlier.50
We cannot ignore the “contemporary climate” when evaluating a claim of inherent
prejudice. In this regard, Wiggins v. State, 315 Md. 232 (1989), abrogated on other grounds
48
See Kim and Wilson, supra note 10 (reporting on violent clashes between BLM
and Blue Lives Matter protestors in New York City); Derek Bryson Taylor, George Floyd
Protests: A Timeline, N.Y. TIMES (Nov. 5, 2021), available at https://perma.cc/2XZZ-3L5T
(noting that “at least six people have been killed in violence connected to the protests that
started after Mr. Floyd died in police custody”).
49
Neil MacFarquhar, Why Police Have Been Quitting in Droves in the Last Year,
N.Y. TIMES (June 24, 2021), available at https://perma.cc/KM5Q-RVU3; Russonello,
supra note 8. Morale in some police departments in the months following Floyd’s killing
was reported to be low. See, e.g., Benjamin Fearnow, Several Minneapolis Police Officers
Quit Amid Lack of Support, Low Morale Following George Floyd’s Death, NEWSWEEK
(June 14, 2020), available at https://perma.cc/7PP6-KCAY; Eric Westervelt, Cops Say Low
Morale And Department Scrutiny Are Driving Them Away From The Job, NPR (June 24,
2021), available at https://perma.cc/6GU7-HL7P.
50
Survey on Police Workforce Trends, Police Executive Research Forum (June 11,
2021), available at https://perma.cc/7EU6-7DPQ.
40
by Horton v. California, 496 U.S. 128 (1990), is instructive. Wiggins went to trial in 1987,
near the height of the AIDS epidemic. The State alleged that Wiggins robbed and murdered
a would-be lover whom he had met that same evening. 315 Md. at 235-36. In voir dire, the
trial judge told prospective jurors that the case had “touches of homosexuality in it,” and
asked if that would prevent anyone from deciding the case fairly and impartially. Id. at 241.
The jury heard evidence indicating that Wiggins was gay. After the victim was introduced
to Wiggins at a bar, the victim, Wiggins, and the person who introduced them went to
Wiggins’s residence to engage in a sexual encounter. See id. at 235. Wiggins attacked and
eventually murdered the victim. Id. at 235-36.
When Wiggins’s case came to trial in November 1987, guards escorted Wiggins
into the courtroom wearing rubber gloves. The jury was present and, thus, would have been
able to observe that the guards were wearing gloves as they walked next to Wiggins. See
id. at 236. Defense counsel objected to this procedure. Id. On the second day of trial,
Wiggins was brought into the courtroom before the jury was seated, but the guards
continued to wear rubber gloves after they took their position immediately behind Wiggins.
Id. at 237. Defense counsel again objected, arguing that allowing the jurors to see the
gloved guards near Wiggins could lead the jurors to draw inferences about Wiggins, which
would have “adverse effects” on Wiggins’s rights. Id. at 237-38. The trial court denied
Wiggins’s motion for a mistral, and Wiggins was convicted. Id. at 238. At a hearing on
Wiggins’s motion for a new trial, his counsel argued that “Mr. Wiggins being paraded back
and forth in front of the jury with the deputies wearing gloves, I believe that procedure in
41
and of itself was so inherently prejudicial as to deprive him of a fair trial in this case.” Id.The trial court denied the motion for a new trial. Id.Citing Estelle v. Williams, id. at 239-40, this Court reversed:
We believe that the jury, viewing the officers guarding Wiggins, would not
be without curiosity as to the guards’ protective attire. We think that it is not
improbable that the jury would assume, in light of the widespread and
continuous publicity devoted to AIDS, that Wiggins was infected with the
disease. We are of the opinion that the wearing of the gloves, without a sound
basis shown for doing so, undermined the fairness of the fact-finding process
and diluted the principle that guilt is to be established by probative evidence
beyond a reasonable doubt.
Id. at 244. The Court reached this conclusion, in large part, due to the climate of fear
surrounding AIDS that was then gripping the country:
It is not a big step in logical inference, considering the contemporary climate,
from seeing the guards protected in their contact with the defendant to the
thought that he might have AIDS. The error was not cured by the voir dire
question. It is a far cry from not being prejudiced because the case “has
touches of homosexuality in it,” and not being prejudiced because the
defendant may have AIDS. Inquiry with respect to the latter was not made.[51]
51
In this case, the trial court asked voir dire questions designed to reveal bias in
favor of law enforcement. The State argues that this undermines Smith’s inherent prejudice
claim to the extent it is based on the jurors having received an extraneous pro-law
enforcement message. We disagree. It is not the case that, having screened jurors for
pro-law enforcement bias, the court’s decision to conduct the trial with court agents
displaying a pro-law enforcement message is insulated from constitutional scrutiny. As the
Supreme Court recognized almost 40 years ago in Holbrook v. Flynn, “[e]ven though a
practice may be inherently prejudicial, jurors will not necessarily be fully conscious of the
effect it will have on their attitude toward the accused.” 475 U.S. at 570. “Whenever a
courtroom arrangement is challenged as inherently prejudicial, therefore, the question must
be not whether jurors actually articulated a consciousness of some prejudicial effect, but
rather whether an unacceptable risk is presented of impermissible factors coming into
play.” Id. (internal quotation marks and citation omitted); see also Cecelia Trenticosta &
William C. Collins, Death and Dixie: How the Courthouse Confederate Flag Influences
Capital Cases in Louisiana, 27 HARV. J. RACE & ETHNIC JUST. 125, 150 (2011)
(advocating that, similar to cases like Parker v. Gladden, which “address[] the impact of
perceived authority on the conscious decisionmaking processes, … [d]isplays that impact
42
The reason why the guards wore gloves in this particular case was left to the
speculation of the jury. Regardless of the credence the jury gave the
testimony of the witnesses, or how it weighed the evidence, it is not far-
fetched that the jury, observing the gloves, thought it better, in any event, that
Wiggins be withdrawn from public circulation and confined in an
institution[.]
Id. at 244-45.
In this case, as in Wiggins, the “contemporary climate” is important to our decision.
In October of 2020, the country was on edge, having just lived through Floyd’s murder and
the unrest that followed. The thin blue line symbol, already controversial, had become even
more polarizing to many.52 Calls to “defund the police” were being made across the
nation.53 Against this backdrop, the bailiffs’ display of the thin blue line flag on their face
masks in the courtroom during Smith’s trial created an unacceptable risk that the jurors
would believe that the court was siding with law enforcement in this moment of political
upheaval, and that they would necessarily have that belief in their minds as they decided
whether to side with law enforcement in this particular case.
decision-making through subconscious channels should likewise be treated as inherently
prejudicial where their effect is heightened by perception of authoritative status”).
52
See, e.g., Joe DiFazio, Dividing line: thin blue line flag source of division on South
Shore, THE PATRIOT LEDGER (Aug. 21, 2020), available at https://perma.cc/FBC3-5Y42;
Rita Oceguera, In Mount Prospect, a village divided over the ‘thin blue line,’ INJUSTICE
WATCH (Sept. 2, 2021), available at https://perma.cc/A3HY-4DS6; Lauren Frias, The
‘Thin Blue Line’: How a simple phrase became a controversial symbol of the police,
INSIDER (Feb. 24, 2021), available at https://perma.cc/3VRU-3KRJ.
53
Dionne Searcey, What Would Efforts to Defund or Disband Police Departments
Really Mean?, N.Y. TIMES (June 8, 2020), available at https://perma.cc/DS52-B2B2; Sarah
Holder, The Cities Taking Up Calls to Defund the Police, BLOOMBERG (June 9, 2020),
available at https://perma.cc/8T74-TLW9.
43
4. The Record Is Sufficient to Establish Inherent Prejudice in This Case.
The State argues that the record is insufficient to support a finding of inherent
prejudice. In particular, the State cites to the Court of Special Appeals’ observation that
“there is nothing in the record about … the specific location where the bailiff was
positioned in the courtroom[.]” Smith, 253 Md. App. at 44 n.7. According to the State,
“[t]his was a question of paramount importance given that the bailiff would not generally
be ‘interacting’ with the jury during the bulk of the trial but simply standing or sitting in
place.”
In our view, the record is sufficient to find inherent prejudice in this case. True,
defense counsel could have taken steps to document the size of the courtroom, measure the
distance between the position(s) where the bailiff stood during the presentation of evidence
and the jury box, etc. However, we are satisfied that the jury had ample opportunity to view
the thin blue line flag on the faces of the bailiffs throughout the two-day trial. The trial
judge was vigilant about ensuring that all present in the courtroom wore face masks. Thus,
we can safely infer that the bailiffs wore their thin blue line flag masks throughout the trial.
Moreover, the trial court directed the jurors’ attention to the bailiff(s) many times during
the trial. Among other things, after a juror was pronounced “acceptable” by both parties
during jury selection, the juror was told to “follow the bailiff right there.” On several
occasions, that direction was coupled with a request that the jurors put their own masks
back in place. The trial court’s explicit focus on masks in the courtroom was commendable
in light of the public health emergency, but it also increased the likelihood that the jurors
would pay attention to the masks worn by others in the courtroom.
44
The trial court also referenced the bailiffs on multiple occasions after the jurors were
seated. In its preliminary instructions, the court told the jurors that the bailiff would collect
their notepads from them. At one point during the trial, the bailiff delivered a message from
the alternate juror to the court that he was having difficulty hearing the proceedings. During
jury instructions, the court informed the jury that if they had any questions they should
“have your forelady knock on the door and the bailiff will have a form that he will hand to
the forelady so you can fill out with the question that you have and that’ll be presented
back to the bailiff, then delivered to the Court.” The court also told the jury where the two
bailiffs would be positioned while the jury was deliberating. And, immediately prior to
deliberating, the jurors saw the bailiffs being sworn.
The State points out that everyone was wearing a face mask in the courtroom and
posits that a more detailed record is necessary to know whether the jurors were more likely
to notice and pay attention to the particular masks that the bailiffs wore, as opposed to the
masks that the jurors saw on each other and on witnesses and others in the courtroom. We
disagree. What the authority figures in the courtroom chose to display on their face masks
was likely to be of particular interest to the jurors. Those authority figures were the judge
and the bailiffs. Undoubtedly, one of the reasons the Sheriff of Kent County decided to
require his deputies to wear this particular mask was because he expected that members of
45
the public would take notice. We have every reason to believe that the jury in Smith’s trial
did just that.54
V
Conclusion
The trial judge is responsible for maintaining the courtroom as a neutral venue for
the fair resolution of disputes. To that end, the court must strive to ensure neither side of
the scale receives extra weight from the display of a political message (or any other kind
of extraneous message) in the courtroom. In a criminal case, a defendant’s Sixth
Amendment right to a fair trial requires that the jury decide the defendant’s guilt based
only on the evidence before it. When a court agent displays a political message during a
criminal trial, the fairness of the process is jeopardized. If the display of the message creates
an unacceptable risk that the jury will decide the case based on impermissible factors, a
reviewing court will conclude that the display was inherently prejudicial to the defendant’s
right to a fair trial. In this case, the bailiffs’ display of the thin blue line flag on their face
masks inherently prejudiced Smith’s right to a fair trial. We therefore reverse the judgment
54
We note that several months after Smith’s trial concluded, the Chief Judge of the
District Court of Maryland, the Honorable John P. Morrissey, instructed District Court
judges and staff not to wear face masks or other apparel that display the “thin blue line.”
Chief Judge Morrissey stated that “[e]mployees of the District Court wearing any clothing
item or apparel which promotes or displays a logo, sticker, pin, patch, slogan, or sign which
may be perceived as showing bias or favoritism to a particular group of people could
undermine the District Court’s mission of fair, efficient, and effective justice for all and
call into question the Judiciary’s obligation to remain impartial and unbiased.” Cameron
Jenkins, Maryland District Court chief judge bans ‘thin blue line’ masks over bias
concerns,” THE HILL (May 6, 2021), available at https://perma.cc/3ZV3-BPYE.
46
of the Court of Special Appeals and direct that the case be remanded to the circuit court for
a new trial.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED; CASE
REMANDED TO THAT COURT WITH
THE INSTRUCTION TO FURTHER
REMAND THE CASE TO THE CIRCUIT
COURT FOR KENT COUNTY FOR A NEW
TRIAL; COSTS IN THIS COURT AND THE
COURT OF SPECIAL APPEALS TO BE
PAID BY KENT COUNTY.
47
Circuit Court for Kent County
Case No. C-14-CR-19-000193
Argued: June 1, 2022
IN THE COURT OF APPEALS
OF MARYLAND
No. 61
September Term, 2021
EVERETT SMITH
v.
STATE OF MARYLAND
Watts,
Hotten,
Booth,
Biran,
Gould,
Eaves,
Getty, Joseph M.
(Senior Judge, Specially Assigned),
JJ.
Dissenting Opinion by Gould, J.,
which Getty, C.J. joins
Filed: August 26, 2022
Although I agree with the Majority that the courtroom should be a neutral venue
devoid of political or other ideological messages, and I would support amending the
Maryland Rules to ensure that the circumstance presented here never repeats itself, I
nevertheless respectfully dissent.
Under the guise of a de novo review of a question of law, the Majority takes the
liberty of making factual findings as to the various meanings associated with the thin blue
line face mask and the controversy surrounding its use. In doing so, the Majority relies on
news articles and commentary from the New York Times, L.A. Times, Politico, and other
sources from around the country, some of which were published after Mr. Smith’s trial.
Noticeably missing from the Majority’s analysis is any reference to news coverage in Kent
County, or any evidence for that matter, regarding how the thin blue line mask was
perceived there. At any rate, regardless of when these articles were published, the more
significant problem I have with the Majority’s reliance on these materials is that none of
them were put before the trial court.1
In fact, no evidence was put before the trial court. There was no testimony from the
Sheriff, the Sheriff’s deputy, or anyone else about what, if anything, the Sheriff intended
1
Even if these materials had been put before the trial court, I don’t agree that they
establish that, as argued by the Majority, “the thin blue line was widely recognized in the
United States as a pro-law enforcement symbol, and indeed was viewed as controversial
and polarizing.” Smith v. State, No. 61, Sept. Term 2021, slip op. at 35, n.40 (Md. Aug.
__, 2022). With due respect to the hardworking journalists and commentators at the New
York Times and elsewhere, their reporting that something is widely recognized or widely
controversial does not make it so. To be clear, I am not saying that the thin blue line flag
was or was not controversial or widely recognized—I am simply saying that the record in
this case doesn’t support either conclusion.
to convey by ordering his deputies to wear the thin blue line face mask. There was no
evidence as to how the citizens of Kent County understood what the Sheriff was trying to
convey with the use of such a mask. And there was no evidence before the trial court
showing how the thin blue line flag was perceived elsewhere in this country. Meanwhile,
the trial court was navigating uncharted territory with the re-opening of Maryland trial
courts and implementing the various masking, social distancing, and other safety measures
that complicated almost every aspect of the courts’ proceedings. Framing the issue as a
question of law does not relieve us of our obligation to conduct our review based on the
contents of the record.
There is a proper way to put such issues before a trial court, and Mr. Smith did not
follow it. The correct way is set forth in Maryland Rule 4-252, which governs motions
practice in the circuit court. Relevant here, subsection (d) states that a motion or request
“capable of determination before trial without trial of the general issue, shall be raised by
motion filed at any time before trial.” Also relevant is subsection (e), which states that “[a]
motion filed pursuant to this Rule shall be in writing unless the court otherwise directs,
shall state the grounds upon which it is made, and shall set forth the relief sought. . . . Every
motion shall contain or be accompanied by a statement of points and citation of
authorities.”
This Rule was designed to provide both the court and opposing party with the time
and information necessary to address the issues raised by the motion. Mr. Smith
acknowledged addressing the issue with unnamed individuals on behalf of the State and
the court in the preceding week, yet failed to comply with these timing and writing
2
requirements. Mr. Smith also failed to support his motion with any evidence, and instead
relied solely on the ipse dixit of his counsel. I am not calling a technical foot fault here. In
the absence of any evidence in the record establishing any risk, let alone an unacceptable
risk, of impermissible factors coming into play, I fail to see how this Court can hold that
the trial court erred as a matter of law in declining to order the deputy Sheriff to change his
face mask.
What Mr. Smith was asking the court to do—order the deputy Sheriff to defy the
order of his superior officer by wearing a different face mask—was no small thing. As we
stated in Soper v. Montgomery Cnty., 294 Md. 331, 337 (1982):
Article IV, § 44 of the Maryland Constitution provides that there shall
be an elected sheriff in each county and Baltimore City who shall “exercise
such powers and perform such duties as now are or may hereafter be fixed
by law.” Thus, sheriffs are constitutional officers whose powers and duties
are not expressly enumerated in the Constitution. Rather, those powers and
duties are prescribed by the common law as modified by the Acts of the
Legislature. Accordingly, sheriffs retain their common law powers and duties
until deprived of them by the Legislature.
(citations omitted).
The Sheriff’s office has a common-law duty of attending and providing courtroom
security. See Prince George’s Cnty. v. Aluisi, 354 Md. 422, 434 (1999). Although
“courtroom security is an ultimate determination that rests entirely and solely in the
discretion of the trial judge[,]” Cooley v. State, 385 Md. 165, 184 (2005), the Sheriff
undoubtedly has the authority to determine the uniforms worn by its deputies and to
mandate compliance therewith. The trial court, therefore, was appropriately reluctant to
exert its authority to countermand a lawful order concerning a matter squarely within the
3
Sheriff’s purview. Because Mr. Smith failed to meet his burden of establishing an
entitlement to such relief, the trial court properly denied his motion.
The Majority states that the most benign messages that could have been intended by
the thin blue line face masks were to convey general support for law enforcement or pride
in their chosen profession of law enforcement. Aside from the lack of any evidence in the
record from which such a conclusion may be drawn,2 the Majority does not adequately
explain why such messages translate to an unacceptable risk that impermissible factors
would come into play in the jury’s decision.
As noted above, the Sheriff is an elected official. In fact, the Sheriff is elected by
registered voters among the same Kent County citizens from which the jury was drawn.
See Md. Ann. Cts. & Jud. Proc. (“CJP”) § 8-103 (2006, 2020 Repl. Vol.).3 Thus, the jurors
2
Indeed, one of the articles cited by the Majority—Rita Oceguera, In Mount
Prospect, a Village Divided Over the ‘Thin Blue Line,’ INJUSTICE WATCH (Sept. 2, 2021),
available at https://perma.cc/A3HY-4DS6—quotes a news release from a police
department in a town north of Chicago as explaining that “the thin blue lined flag honors
the law enforcement officers who have made the ultimate sacrifice for their communities.”
How do we know that’s not what the Sheriff of Kent County intended to convey? The fact
is, we have no idea what the Sheriff intended to convey with the thin blue line mask or how
it was received by the citizens of Kent County.
3
CJP § 8-103 provides:
Age, citizenship, and residency requirements
(a) Notwithstanding § 8-102 of this subtitle, an individual qualifies for jury
service for a county only if the individual:
(1) Is an adult as of the day selected as a prospective juror;
(2) Is a citizen of the United States; and
(3) Resides in the county as of the day sworn as a juror.
Disqualifying factors
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knew that the Sheriff was an officer separate and distinct from the circuit court, State v.
Chaney, 375 Md. 168, 181 (2003) (quotation omitted) (“[j]udges, lawyers and laymen alike
are all presumed to know the law regardless of conscious knowledge or lack thereof”), and
therefore would not view the deputy Sheriff as an agent of the court with authority to speak
on its behalf.4
Moreover, in addition to being screened during voir dire for bias in favor of law
enforcement, the jurors were expressly and repeatedly instructed by the court to base their
(b) Notwithstanding subsection (a) of this section and subject to the federal
Americans with Disabilities Act, an individual is not qualified for jury
service if the individual:
(1) Cannot comprehend spoken English or speak English;
(2) Cannot comprehend written English, read English, or write
English proficiently enough to complete a juror qualification form
satisfactorily;
(3) Has a disability that, as documented by a health care provider's
certification, prevents the individual from providing satisfactory jury
service;
(4) Has been convicted, in a federal or State court of record, of a crime
punishable by imprisonment exceeding 1 year and received a sentence
of imprisonment for more than 1 year; or
(5) Has a charge pending, in a federal or State court of record, for a
crime punishable by imprisonment exceeding 1 year.
Pardon of convicted individuals
(c) An individual qualifies for jury service notwithstanding a disqualifying
conviction under subsection (b)(4) of this section if the individual is
pardoned.
(Footnote omitted).
4
The Majority does not cite to any Maryland statute or precedent to support its
assertion that the deputy Sheriff is an agent of the court.
5
decision solely on the evidence admitted in the trial and that they should not read anything
into any of the court’s rulings. Here’s an example:
After the closing arguments, you will begin your deliberations. You
must decide this case based on the evidence produced at trial. Nothing the
Court may say or do during the course of trial intended to indicate or should
be taken by you as indicating what your verdict should be.
During any break or recess, including any overnight break, you must
not conduct any research or investigation about the case or any of the
individuals involved in it. You may not consult with any dictionaries,
reference materials, search the internet, websites, blogs or consult other
sources for information about the case. You must not visit any place
mentioned in this case. You must discuss the case fairly and impartially
based only on the information presented together to you and your fellow
jurors in the courtroom. Until you retire to deliberate and decide the case,
you must not discuss this case with anyone else. You should not even discuss
the case with your fellow jurors. I know that this request seems odd as this
case is the only reason that you all have been brought together. But the reason
that I'm asking you not to discuss the case until you begin your deliberations
is that evidence comes to you in little bits and pieces throughout the course
of the trial. If you start to talk about the case too soon, you may start to form
opinions before you have heard all of the evidence and the instructions on
the law and the arguments of the attorneys. In order to remain fair and
impartial, you should not discuss and decide this case until you begin your
deliberations.
At bottom, even if the jurors saw the deputy’s mask and thought to themselves:
“now there’s a guy who is proud to be a law enforcement officer in these tumultuous and
turbulent times,” I have no reason to believe that would have posed any material risk that
impermissible considerations would come into play in the jury’s deliberations. That is
particularly true here because, as pointed out by the Court of Special Appeals, this was not
a case in which the conduct of the police was put at issue, but rather a case where a father
is being tried for assaulting his daughter.
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Even if the record had contained the materials supplied by Mr. Smith and the amici
on appeal, in my view, the Court of Special Appeals got it exactly right when it stated:
No doubt, the “thin blue line” flag is perceived by many as a racist symbol
antithetical to the Black Lives Matter Movement. Others, however, perceive
the “thin blue line” flag to be a general symbol of support of law enforcement
or pride in policing. In this appeal, however, we are not asked to determine
whether the wearing of a “thin blue line” flag face mask by courtroom bailiffs
is a wise practice, or whether Chief Judge Morrissey's prohibition of the
wearing of such symbols in the District Court of Maryland was a prudent and
sensible decision. Indeed, Judge Morrissey's determination that
“[e]mployees of the District Court wearing any clothing item or apparel
which promotes or displays a logo, sticker, pin, patch, slogan, or sign which
may be perceived as showing bias or favoritism to a particular group of
people could undermine the District Court’s mission of fair, efficient, and
effective justice for all and call into question the Judiciary’s obligation to
remain impartial and unbiased” is eminently reasonable. It is entirely
appropriate for the judiciary and individual judges to take measures to ensure
that all court personnel -- from the judge to the courtroom clerk to the bailiff
-- appear neutral and unbiased at all times. In this appeal, however, we are
mindful of the precise determination before us: whether the wearing of a
“thin blue line” flag face mask by a courtroom bailiff is so inherently
prejudicial as to deprive an accused of his constitutional right to due process.
Smith v. State, 253 Md. App. 25, 40–41 (2021), cert. granted, 477 Md. 382 (2022)
(footnote omitted).
I also agree with the sentiments expressed by intermediate appellate court when it
stated:
In our view, the symbol of the “thin blue line” flag does not have one
generally accepted meaning but instead is interpreted as meaning a variety
of different things. Notably, the context in which the “thin blue line” face
mask was displayed in this case must be considered. Specifically, the “thin
blue line” flag at issue in this case appeared on the face mask of a uniformed
and armed law enforcement officer serving as a courtroom bailiff. Inasmuch
as the “thin blue line” flag is seen by some as a symbol of general support
for law enforcement, a reasonable juror may have inferred that the law
enforcement officer wearing the “thin blue line” flag face mask was doing so
in order to display his pride in being a law enforcement officer. As
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in Holbrook, jurors may have drawn a “wide[ ] range of inferences” from the
bailiff’s face mask. Accordingly, we reject Smith’s inherent prejudice
argument and hold that the wearing of a “thin blue line” flag face mask by a
uniformed courtroom bailiff did not constitute inherent prejudice depriving
Smith of his right to a fair trial.
We are mindful to make explicit what this opinion does not hold. We do not
suggest that a bailiff wearing a “thin blue line” flag face mask is a good
practice, nor do we suggest that prejudice can never arise in different
circumstances in which actual prejudice rather than inherent prejudice is
alleged. Indeed, a litigant may have a reasonable argument that a bailiff
wearing a “thin blue line” flag face mask caused actual prejudice in a case
involving, for example, allegations of excessive force or other misconduct
by a law enforcement officer, or in a case in which a law enforcement
officer's credibility is weighed against that of a layperson. Our opinion in this
case does not foreclose such an argument. Furthermore, a prohibition on the
wearing of “thin blue line” symbols by courthouse staff may be a prudent
prophylactic measure to avoid issues on appeal, as well as to err on the side
of caution to ensure litigants’ right to a neutral and fair tribunal.
Here, however, we do not deal with allegations of actual prejudice. Our
holding, therefore, is limited to the inherent prejudice argument raised in this
case and discussed supra.
Id. at 43–45.
In conclusion, I simply do not believe, on this record, that the deputy Sheriff’s use
of the thin blue line face mask deprived Mr. Smith of a fair trial. That said, I share the
Majority’s underlying concern about the portrayal of symbols and messages of political or
ideological content in the courtroom by any person affiliated with the State or law
enforcement. As we noted in Aluisi, a sheriff’s authority is subject to the “rules of the
Court of Appeals. . . . to the extent that the matter involves practice and procedure in the
courts or the administration of the judiciary, by the Court of Appeals.” 354 Md. at 433.
Irrespective of whether Mr. Smith’s right to a fair trial was inherently prejudiced, this case
8
illustrates the need for this Court to exercise its rulemaking authority to prevent this
situation from arising in the future.
For the foregoing reasons, I respectfully dissent.
Judge Getty has authorized me to represent that he joins this dissent.
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