finding Georgia, California, Indiana, Mississippi, Missouri, Oregon, and West Virginia as states where courts have held a conviction by an unsworn jury is void
How later courts described this case
- finding Georgia, California, Indiana, Mississippi, Missouri, Oregon, and West Virginia as states where courts have held a conviction by an unsworn jury is void
- along with Georgia, listing California, Indiana, Mississippi, Missouri, Oregon and West Virginia as states where courts have held a conviction by an unsworn jury is unsustainable
- “a jury which has never been sworn falls into the same ‘structural error’ category,” and therefore, “the complete failure to swear the jury can never be harmless error”
Written by the judges who cited it.
Distinguished
Distinguished by Montgomery v. State, 206 Md. App. 357 (2012)
Nothing in this opinion encroaches upon the holding of the Court of Appeals in Harris, 406 Md. at 131, 956 A.2d 204, that "the harmless error principle is inapplicable when a jury in a criminal case is never sworn.
The opinion
HARRELL, J.
I neither would affirm nor reverse the judgment in this case, at this point, but rather would remand the matter for another trial judge to determine as a fact whether the jury was sworn. On an equivocal record, the Majority opinion appears to find as a fact that the jury was not sworn. Majority op. at 123-124, 956 A.2d at 208-09. While that may be a permissible inference for a fact-finder to draw, in isolation, from the courtroom clerk’s docket entry of 28 October 2004, 1 *133 the transcript of the morning proceedings of the same date (where the courtroom clerk and defense counsel, in rapid order, invited the trial judge to let the jury be sworn before releasing them for lunch), and the absence of any express indication that the jury was sworn subsequently, there is the matter of the transcript of the proceedings on the motion for new trial which contains a basis to infer otherwise. Granting that the trial judge, in the course of the motion hearing and his ruling, did not place his trial notes in the record literally, he nonetheless unequivocally stated, attributing as his source his memory and his notes, that “before the trial began, Jury was sworn.”
I do not think that, as appellate judges, ordinarily we engage in fact-finding or the drawing of factual inferences as to dispositive facts favoring the contentions of one party or another (except insofar as, for analytical reasons, we might appear to do so in the review of the grant of summary judgment in civil cases and the like). I would decline to make the present case an exception. The resolution of the ultimate fact of whether the jury in this trial was sworn is fit, in the first instance, for a fact-finder. The trial judge that presided over Harris’ trial is a retired judge who may be called as a fact witness and, unless destroyed, his redacted trial notes examined. If other courtroom personnel and jurors present at the two day trial (28-29 October 2004) are compellable and available, they also may be examined for their recollection and the basis therefor, as possibly may Harris’ then trial counsel, if desired.
If another trial judge, after hearing the relevant facts, finds that the jury was not sworn, in that event, I would agree with the legal analysis of the Majority opinion here. If the finding, however, were that the jury was sworn, and a more developed record supported that finding, the Majority opinion, as such, becomes surplusage and Harris’ second issue would need to be reached.
*134 In short, I am unwilling, on appeal and on the record before us at present, to weigh the docket entry and transcript of the morning proceedings of 28 October 2004 against the trial judge’s memory and notes and find the latter incredible.
Judge RAKER has authorized me to state that she joins in this dissenting opinion.
. Both the hand-written and typed versions of the relevant docket entry are not as clear as they could be as to what part of the proceedings for that day, 28 October 2004, they purport to describe. Both state, in relevant part, "10-28-04 Jury not sworn, voir dire not admin.” Yet, the transcript of proceedings for the morning of 28 October 2004 reveals that voir dire and jury selection did occur before the lunch break. Presumably, one inference therefore which may be drawn by a fact-finder from the portion of the docket entry as to the jury not being sworn describes only what did not happen prior to the lunch break. It would be useful in determining what to make of the scope of this docket entry, relative to the two day trial, to be apprised of any customs *133 or practices in the Circuit Court for Baltimore City at the time bearing on the regularity of making such notations and the significance that no subsequent note on the topic was made.