Smith v. State

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 the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2023-01-19 11:18-05:00 Gregory Hilton, 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. Giovanni Russonello, Have Americans Warmed to Calls to ‘Defund the Police’?, 8 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