Professor Warnken stated that the holding was correct.  The common law, the Maryland Constitution, and the Maryland statute are all clear in providing that “words spoken in debate” may not be used to form the basis of a criminal charge.  He noted that legislative immunity does not make a legislator immune from criminal liability, just immune for the use of “words spoken in Debate” to support criminal charge.  Warnken stated that former Mayor Sheila Dixon’s charges were also dismissed.  However, in that case, the State Prosecutor then recharged her, based on evidence that did not come from her “words spoken in debate.”

Professor Warnken stated that there are probably 100,000 reported opinions interpreting and applying Miranda, with probably 5,000 of them analyzing whether a suspect, who gave a statement, without Miranda warnings, was or was not “in custody” at that time.  He stated that, based on reported case law interpreting and applying Miranda, this case presents a close question.  Warnken noted that the Judge Johnson would have been correct whichever way he ruled.  For the judge to be legally incorrect, his factually finding of “under arrest” would have to have been clearly erroneous.  Warnken stated that, in his judgment, the facts are “close enough” that the Judge would not reversible, and could not have been legally incorrect, whichever way he ruled, because the facts are too close to make the judge “clearly erroneous.”

The 12 jurors – not you and me – sat through a trial of nearly five weeks, with more than 100 witnesses.  The 12 jurors – not you and me – listened to the judge’s jury instructions.  The 12 jurors – not you and me – each discussed the case with 11 other jurors for a period exceeding ten hours.  The 12 jurors then rendered a unanimous verdict of “not guilty.”  This means that not one member of the jury could answer “yes” to the question of whether the State had persuaded that juror, beyond a reasonable doubt, that Casey Anthony intentionally caused the death of her daughter or caused the death of her daughter while committing child physical abuse.  The members of the public acquired their understanding of the case from the media.  The media acquired its understanding of the case from watching Nancy Grace on late-night television.  She made the prosecution of this case her full-time job for three years.  Nancy Grace is not a former prosecutor who became a member of the media.  Instead, she is a prosecutor who prosecutes Defendants on television, without an opposing counsel present, and while not limited by the rules of evidence. 

In fact, Nancy Grace vigorously prosecuted the Duke lacrosse players for rape a few years ago.  After the prosecutor in that case was disbarred for hiding exculpatory evidence that was favorable to the defense, Nancy Grace never mentioned that, not did she apologize for heavily defaming the lacrosse players.

Professor Warnken noted that punitive damages in Maryland require actual malice, which is a tough standard to meet.  This requires the plaintiffs to demonstrate, in essence, that the defendants intentionally caused the harm.  In this case, it appears that the initial harm of the oil leak was unintentional.  However, the cover up of the incident and/or the failure to properly and promptly remediate the situation may have been intentional.  The plaintiffs have now persuaded the six-person jury that there was actual malice.  The defendants will file ten-day post-trial motions, requiring the plaintiffs to persuade the trial judge that there was actual malice.  Even if the plaintiffs succeed at that level, this case will go to the Court of Special Appeals of Maryland, which will affirm the punitive damages verdict only if that court finds that there was actual malice.  Professor Warnken believes that the half-million dollar compensatory damages judgment will be affirmed, but some or all of the million dollar punitive damages judgment will be reversed.

Professor Warnken predicted that the Government will prevail.  He noted that (1) the Supreme Court is pro-Government on issues of Fourth Amendment search and seizure; (2) in the Supreme Court, the side that persuades the Court to take the case usually wins (the Government took this case to the Supreme Court); (3) the Supreme Court has held many times that Defendants have a lesser expectation of privacy in vehicles, when compared to homes and personal effects; (4) a quarter century ago, the Supreme Court permitted placing beepers on vehicles.

Professor Warnken noted that (1) Defendants have a constitutional right to be present whenever there is any communication between the judge and the jury, (2) Defendants have a constitutional right to full disclosure of the content of any juror communication, and (3) Defendants have a constitutional right to be represented by counsel during such jury communication.  In this case, because the judge committed legal error in failing to disclose the jury notes, the ultimate issue on appeal was whether the error of non-disclosure of the jury notes was harmless beyond reasonable doubt.  When the jury communication relates to the evidence in the case, there is a high probability that the error of non-disclosure is not a harmless error.  Warnken pointed out that, when Maryland’s highest court rules 4-to-3, that shows that the issue is close and can be argued either way.

            Professor Warnken was interviewed once by WJZ television and twice by WBAL radio.  He noted that, although three counts of conspiracy were charged, there can only be one count of conspiracy.  One illegal agreement to violate 100 laws is still only one count of conspiracy.  Warnken stated that, if convicted on all counts, and if given the maximum sentence, and if the sentence were made to run consecutively, Schurick could face a maximum penalty of 16 years and a $10,000 fine, and Henson could face a maximum penalty of 11 years.  Warnken explained that if Schurick and Henson do not have criminal records, they may be given a suspended sentence, with five years probation, or they may be given a short sentence in jail.

To read more about Professor Byron L. Warnken, go to his bio page.

The Baltimore Sun on James Nichols, Esq.

The Annapolis Capital on James Nichols, Esq.