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Friday, September 23, 2011

Court of Appeals of Maryland Affirms Trial Court's Judicial Notice of Fact That Proceedings Before Judge X Are "Absolutely Unconstitutional"

(Cross-posted on EvidenceProf Blog)

I'm going to put on record exactly why I ruled the way I did in the State's motion in limine. I just want to make sure it's clear for the appellate record.

I find and I'll take judicial notice that the proceedings that take place in front of [the judge who accepted Ms. Williams's guilty plea] are absolutely unconstitutional. He does such things as ask people certain things, tell them to nod their head, and then he just takes pleas and just does it. There is no state's attorney present. There is no defense attorney present. There is no semblance of any type of due process or any rights given to the defendants. It is so widespread that even the federal judges in Greenbelt won't recognize that as convictions.
Now, I understand [Petitioner's] argument, and I am not taking anything away from it. I just wanted to make sure that the record indicated why I was ruling, not that I was saying that [Petitioner] couldn't use a conviction against the witness. It's this conviction. It's unique only to what happened in that courtroom. I have long lamented what happens there. I just wanted that on the record. Thomas v. State, 2011 WL 4389167 (Md. 2011) (emphasis added)

This language originally came from a Maryland trial court, and the Court of Appeals of Maryland (Maryland's highest court) cited it yesterday in deeming the conviction of a witness for the prosecution unconstitutional and thus inadmissible. The Court of Appeals of Maryland had to agree with the trial court's decision to take judicial notice because the trial court had no evidence that the witness' conviction was unconstitutional, just the prosecutor's bare allegation of unconstitutionally. In other words, the Court of Appeals of Maryland must have agreed with the trial court that this "fact" was "not subject to reasonable dispute...." Maryland Rule of Evidence 5-201(b).

The rest of the post will lay out some more of the details of Thomas, but here's my question: Who is Judge X, and what can be done to remove him from power immediately (if he's still in power)? What happens to the (possibly thousands) of individuals who have been convicted after guilty pleas before this judge? What is the obligation of the Maryland judges and prosecutors who recognize the unconstitutionality of proceedings before this judge? What is our obligation? 

In Thomas, Robert Lee Thomas, was convicted of carrying a handgun. After he was convicted, Thomas appealed, claiming that the trial court erred by precluding him from impeaching a witness for the prosecution, Timika Williams, with evidence of her prior conviction for theft of a motor vehicle

According to the State, Ms. Williams's guilty plea was unconstitutional, because she was not represented by counsel when she entered her plea and had not waived her Sixth Amendment right to counsel. Counsel for Petitioner objected to the State's motion but did not challenge the State's characterization of Ms. Williams's plea as being unconstitutional.

According to the Court of Appeals of Maryland,

Our caselaw, derived from Supreme Court precedent, makes clear that such convictions cannot be used for impeachment purposes. In von Lusch v. State,...we cited Loper v. Beto, 405 U.S. 473, 483 (1972) as "directly govern[ing]" the issue. In Loper, the Supreme Court explained that the "rule against use of uncounseled convictions 'to prove guilt' was intended to prohibit their use 'to impeach credibility',"because "[t]he absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt."... That reasoning applies equally whether the prior conviction is that of the defendant or of a third-party witness.

In this case, it is undisputed that Ms. Williams's prior conviction was achieved without counsel or a waiver of counsel and is therefore unreliable, under Loper, for purposes of attacking Ms. Williams's credibility. We hold that the trial court neither erred nor abused its discretion in refusing to allow Petitioner to impeach Ms. Williams with evidence of that conviction.

In Loperhowever, Loper did more than just allege that his prior convictions were unconstitutional because he was denied the right to counsel. Instead,

His sworn testimony at the habeas corpus hearing confirmed these allegations. In addition, he produced court records to corroborate this testimony.

On the other hand, in Thomas, the trial court really did just have the prosecutor's allegation that Ms. Williams' prior conviction was unconstitutional. But, as noted, it got around this problem by taking judicial notice "that the proceedings that take place in front of [the judge who accepted Ms. Williams's guilty plea] are absolutely unconstitutional." I don't see any reasonable way that the court could have taken judicial notice of this "fact," but you can see the court's point and why the Court of Appeals of Maryland later agreed with it. If federal judges won't recognize convictions from this judge as real convictions, there's a real problem (Moreover, the Court of Appeals of Maryland in Thomas ultimately found that Thomas should have been able to interrogate Ms. Williams' about the conduct leading to her conviction under Maryland Rule of Evidence 5-608(b)).

Given the fact that there's this huge problem, what's the solution? I didn't redact the name of the judge to "[the judge who accepted Ms. Williams's guilty plea]" in the opening block quote. That was the decision of the Court of Appeals of Maryland. And while federal judges, prosecutors, at least one trial judge, and now the Court of Appeals of Maryland have all found that proceedings before this judge are "absolutely unconstitutional," as far as I can tell, they've done nothing to have him removed from power. Indeed, we don't even know his name. Today, he will likely take several more guilty pleas from defendants not represented by counsel. Next week, he will take several more. I plan to do my best to find out who he is and how to get him removed from power. Any help would be appreciated.

-Colin Miller

Posted by Evidence ProfBlogger on September 23, 2011 at 08:36 AM | Permalink


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Wow! Knowing the county, and it's census, of course their is no recourse for the victims of Judge Femia's actions; and other judges alike. This clearly affects the majority people of color whom the state and county prospers from the most in these Judicial proceedings.

Posted by: FreDom | Jan 2, 2012 12:08:46 PM

On Judge Femia's special "rocket docket": http://washingtonexaminer.com/local/pr-george-s-sends-thousands-cases-rocket-docket

His sentencing menu: http://www.mcdaa.org/FemiasMenu.htm. Note the judge's postscript, "I want to remind counsel that I need an executed “waiver of rights” form (available on counsel’s table) from each defendant offering a plea to a jailable offense."

Posted by: ThisIsNotJustice | Sep 28, 2011 3:59:41 AM

Dave: Thanks. It looks like it may be Femia. And, if it is, he certainly has a track record. Here's a story from a few years ago in the Washington Post:


Relevant portion:

Circuit Court Judge Vincent J. Femia had Games plead guilty to the cocaine possession charge to get him out of jail, even though Games speaks no English, had no attorney or interpreter and did not understand what he was pleading guilty to.

"He didn't have any idea what he was doing, and I didn't give a damn," Femia said in an interview. "Our system is a Gordian knot, and I cut it. My object in this case was not criminal justice. My object was to get him the hell out of jail."

Posted by: Colin Miller | Sep 23, 2011 12:09:16 PM

According to the clerk's office, the sentencing judge was Judge Femia

Posted by: Dawinder "Dave" S. Sidhu | Sep 23, 2011 11:07:22 AM

Here's the link to the full information (this is probably the same thing Brad found): http://casesearch.courts.state.md.us/inquiry/inquiryDetail.jis?caseId=CJ064086&loc=65&detailLoc=PG

Prince George's County does have an online docket that lists the names of judges, but they seem to only have the current day without any way to access old ones. Still, a simple call to the court clerk's office could probably turn up the name without the hassle of a FOIA request.

Posted by: Andrew MacKie-Mason | Sep 23, 2011 11:00:36 AM

Here's some information from the MD case information system:

Court System:Circuit Court for Prince George's County - Criminal System
Case Number:CJ064086
Case Description:Timika Yolander Williams
Case Type:Criminal Jury Demand
Filing Date:11/28/2006
Case Status:Closed

Charge No: 1
Charge: Motor Vehicle Theft
Charge Code: 7-105
Offense Date: 09/23/2006
Arrest Tracking No: 066070119662
Disposition: Guilty Disposition Date:03/16/2007

Doesn't seem to list the judge though.

Posted by: Brad | Sep 23, 2011 10:19:20 AM

5thyrLawProf: Thanks. FOIA sounds like a great idea.

Posted by: Colin Miller | Sep 23, 2011 9:09:18 AM

Colin, this certainly is not the only trial court judge employing procedures like this. In fact, in my experience, his procedures are mild by comparison. I remember a "senior" judge sitting in arraignments (in a major urban area) telling all defendants that if they pled not guilty, had him for trial, and were convicted, he would max them all out regardless of facts or priors. When that scared half the courtroom into pleading-out, he quickly appointed any private attorney in the courtroom to "counsel" the defendant during the colloquy and then refused to give those lawyers ANY time to discuss the case with their "clients."

You know you're not doing good work on the bench when even the prosecution objects to your plea colloquy.

I certainly laud your efforts in this particular case (and agree with your proposed remedy). But, having practiced on both the state and federal level, it's my opinion that the state trial courts are like the wild west compared to the feds ... and usually us law profs only pay attention to the federal courts. A lot of good work (like what you're proposing here) could be done by law profs to improve the status of due process in state courts.

PS: I might suggest that a FOIA (or the state equivalent) request for the name of the judge might be an option. Apparently, Maryland's act ("Public Information Act") applies to the judicial branch. See http://www.oag.state.md.us/forms/book.pdf at page 2.

Posted by: 5thyrLawProf | Sep 23, 2011 9:03:00 AM

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