It is embedded in our judicial system within the Fifth and Sixth Amendments of the United States Constitution that a person in a criminal proceeding is entitled to have a fair trial with all of his or her due process protections. Stemming from these constitutional provisions, Maryland recognizes in Sessoms v. State the right to “ensure that an accused gets a fair trial free from undue prejudice.” Although Sessoms is speaking directly to other crimes’ evidence, that same fairness is applied throughout the criminal justice system.
However, Maryland often denies criminal defendants this very right in the realm of joinder and severance by declaring that it is in the interest of judicial economy keep defendants joined, despite the prejudice that may result from the decision. Neither the Court of Appeals nor the Court of Special Appeals has ever expressly ruled on whether antagonistic defenses may be a ground for the severance of defendants. The Hawaii Supreme Court, following the Ninth Circuit, has provided an illustrative opinion explaining what antagonistic defenses are and why they are so prejudiced as to stand as a ground for severance in State v. Walton, a 2014 opinion. Walton follows the United States Supreme Court in United States v. Zafiro and explains that merely inconsistent defenses alone are not a ground for severance. The defenses must move beyond inconsistent into antagonistic to produce an undue prejudice. It is important to note that Zafiro left the issue of whether severance based on antagonistic defenses is something best decided by the sound discretion of the trial court judge. However, several circuits and many states have adopted antagonistic defenses as a ground for severance. Some jurisdictions have even gone so far as to deem antagonistic defenses to be a per se rule of severance.
The term of art “antagonistic” can also be explained as hostile. A classic example is when there are two (or more) co-defendants and each one has evidence, testimonial or otherwise, asserting that the other defendant was the one who committed the crime. Walton points out that this kind of trial is inherently prejudicial because the co-defendant takes on the role of a second prosecutor. Walton states that joinder will force the defendant “to defend against two prosecutors with two different theories of his guilt . . . each of which [could] offer[] different evidence supporting conflicting theories of [the defendant’s] culpability.” Further, following this rule for severance helps “to prevent a situation in which each defendant is the government's best witness against the other.”
Maryland codifies that prejudice can be a basis for severance in Maryland Rule 4-253, but has never ruled explicitly on the issue of antagonistic defenses and the prejudice that stems from it. In 1950, the Maryland Court of Appeals mentioned that hostile defenses could be a ground for severance in Day v. State. Day was later, in effect, overruled in Eisland v. State. However, Eisland concluded that the court’s discussion about hostile defenses in Day was merely dicta and the court relied on inadmissible evidence as a basis for severance. Eisland does indicate that antagonistic defenses cannot be a mandatory basis to sever, but the issue of whether antagonistic defenses may be a ground for severance has not been explicitly denied or upheld by the higher courts of Maryland. Therein lies the problem. A trial court judge will be very hesitant to sever on such grounds without some support from a higher authority to fall back on.
In order to correct this problem, which has a high potential for undue prejudice, criminal defense attorneys in Maryland must do everything they can to argue the issue and preserve it correctly for appeal. Some attorneys have had success in arguing the line of reasoning in Erman v. State. In Erman, the counsel for both defendants moved for severance, both before and during trial, in excess of twenty times. Erman states that when hostile defenses are present, there is a high likelihood that so many curative instructions will be given that that it will be impossible for the jury to compartmentalize the evidence and its ability to act in accordance with the instructions will be nullified. Thus extreme prejudice exists and it is better to sever the defendants before the trial.
Defense attorneys can combine this with the McKnight v. State prejudice factors for joinder of counts, which state that (1) a defendant “may become embarrassed, or confounded in presenting separate defenses,” (2) “the jury may cumulate the evidence of the various crimes charged and find guilt when, if the offenses were considered separately, it would not do so,” and (3) “the jury may use the evidence of one of the crimes charged, or a connected group of them, to infer a criminal disposition on the part of the defendant from which he may also be found guilty of other crimes charged.” Although the case talks about the joinder of counts, it provides useful insight and the same factors can be almost directly applied to severance of defendants. In fact, the first factor speaks to exactly what the court in Erman feared. Further, Maryland Rule 4-253 itself combines the joinder of counts and defendants into one subsection.
These two cases provide a great foundation to argue severance on the basis of antagonistic defenses, but this is not enough. Defense attorneys should use this line of cases to set a foundation and then build on the issue further. Many other jurisdictions have adopted the rationale that the transformation of the co-defendant into a second prosecutor is so prejudicial that it undermines the defendant’s right to a fair trial. To rid the potential to infringe on a defendant’s right to a fair trial by joinder of defendants on this issue, the higher courts of Maryland must adopt the notion that antagonistic defenses may be used as a basis to sever. Thereafter, trial court judges will likely feel more comfortable granting such a severance if they have authority to rely on.
Michael Bayern
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