Biller v. Director, Patuxent Institution

Gilbert, J., delivered the opinion of the Court. The interesting question posed by this appeal is whether a judge must be present when a jury renders its verdict in a civil case. The appellant, Robert Lee Biller, strenuously argues that the judge’s failure to be present in such a case, ³⁷⁶ unless the parties have consented to his absence, constitutes reversible error. We agree with appellant, reverse the judgment of the Circuit Court for Baltimore County and remand the matter for a new trial.

We now give our reasons. Appellant pleaded guilty in the Circuit Court for Baltimore County to a criminal information charging him with arson. He was sentenced to confinement under the jurisdiction of the Division of Correction for a term of five years and was referred on February 27,1973 to the Patuxent Institution for evaluation and report. Within the time prescribed by Md. Ann. Code art. 31B, § 7 (a) Patuxent submitted its report to the sentencing judge.

After compliance with the provisions of §§ 8 (a) and (b) of art. 31B, the matter proceeded to hearing before a jury on the issue of whether appellant was a defective delinquent. The jury found that appellant was a defective delinquent within the meaning of Md. Ann. Code art. 31B, § 5. Appellant then filed an Application for Leave to Appeal to this Court. 1 We granted the application and transferred the case to the regular appeal docket. An examination of the transcript of the proceedings in the hearing court reveals that following the judge’s instructions to the jury and the argument of counsel, the jury retired to consider its verdict at 1:15 P.M. on November 14, 1973.

The record reads as follows: “(The jury returned at 2:15 p.m.) THE CLERK: Ladies and gentlemen of the jury, have you agreed upon a verdict? THE JURY: (In unison): We have. THE CLERK: Who shall say for you? THE JURY: (In unison): Our Forelady.

THE CLERK: Madam Forelady, how do you find ³⁷⁷ in the issue, do you find yes or no as to Robert Biller? THE FORELADY: We find yes. THE CLERK: Harken to your verdict as the court hath recorded it: Your Forelady has said that Robert Lee Biller is a Defective Delinquent, and so say you all. THE JURY: (In unison): We do.” Appellant’s counsel in his brief and on oral argument avers “the [judge] was not present when the Foreman [sic] read the verdict”, and further, the judge did not comply with the provisions of art. 31B, § 9 (b).

The State correctly observes that the record does not reveal that the judge was not present at the time the jury returned its verdict, but the Assistant Attorney General, Harry A. E. Taylor, on oral argument, advised us that the State does not challenge the accuracy of the statement of appellant’s counsel, that the judge was not, in fact, present at that crucial time. We think Mr. Taylor’s candor to be in keeping with the remarks made by the late Judge Simon E. Sobeloff in an address to the Judicial Conference of the Fourth Circuit, June 29, 1954. See 373 U. S. 87 , n. 2, 83 S. Ct. 1194 , 10 L.Ed.2d 219 (1963). In that address, Judge Sobeloff, then the Solicitor General of the United States, said: “The Solicitor General is not a neutral, he is an advocate for a client whose business is not merely to prevail in the instant case.

My client’s chief business is not to achieve victory but to establish justice. We are constantly reminded of the now classic words penned by one of my illustrious predecessors, Frederick William Lehmann, that the Government wins its point when justice is done in its courts.” We accept the unchallenged representation of appellant’s counsel that the judge was not present when the jury rendered its verdict. In 53 Am. Jur. § 1021, it is stated: ³⁷⁸ “In civil cases it is the prevailing practice to permit the judge, on retiring from the bench, to direct the clerk, by the consent of the parties, to receive the verdict of the jury still deliberating on their verdict if they should agree during the recess; but without such consent the verdict is a nullity.” (Footnote omitted).

See also 20 A.L.R.2d 282 which states: “The rule generally appears to be that in the absence of the consent of the parties, the reception of a verdict in the absence of the trial judge by one other than such judge is a nullity. ...” 2 Insofar as we are able to