Petition for Writ of Prohibition, In re

Decision Date01 September 1986
Docket NumberNo. 27,27
PartiesIn re PETITION FOR WRIT OF PROHIBITION and/or a Writ of Mandamus or Other Appropriate Relief. Misc
CourtMaryland Court of Appeals

Valerie V. Cloutier, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellant.

George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, McAULIFFE and ADKINS, JJ., and JAMES F. COUCH, JR., Associate Judge of the Court of Appeals of Maryland (Retired), Specially Assigned.

ADKINS, Judge.

At issue here is this Court's power to issue one of the extraordinary writs--mandamus or prohibition--to a circuit court judge. The State asks us to issue one of the writs because the circuit court judge granted a jury-convicted defendant's motion for new trial, an action from which no appeal lies. Dean v. State, 302 Md. 493, 499-500, 489 A.2d 22, 25-26 (1985). If we can cross that threshold, a second question is whether a circuit court judge may grant a new trial in a criminal case, thereby setting aside the jury's verdict, because the judge does not credit the testimony of the chief prosecuting witness. And if we conclude that we have authority to issue one of the extraordinary writs, we also must decide whether this is a case in which an extraordinary writ should issue. To set the stage for our consideration of these matters, we recount the earlier proceedings in this case.

I. Background

On 19 and 20 May 1986 Paul Joseph Katz was tried by jury in the Circuit Court for Montgomery County (Miller, J., presiding) on charges of attempted robbery with a dangerous and deadly weapon, assault with intent to rob, and simple assault. At the close of the State's case, and at the close of all the evidence, Katz moved for a judgment of acquittal. Judge Miller denied the motions. The jury returned a verdict of guilty on all counts.

Katz moved for a new trial on five grounds. The first four grounds may be summarized as involving unfair surprise, newly discovered evidence, improper jury instructions, and jury misconduct. Katz also alleged that the jury verdict was "contrary to the evidence," and, in effect, that it was against the weight of the evidence. He based these allegations in large part on the State's failure to call Rodney Hall, the victim, as a witness.

On 28 July 1986 the new trial motion was considered. After arguments by counsel Judge Miller discussed Katz's first four grounds and found no error justifying the grant of a new trial. Neither counsel nor the judge specifically addressed the "contrary to the evidence" argument, but in granting the new trial motion, the judge went on to say,

The only question the Court has is whether or not the Court ought to exercise its discretion in granting a new trial, or whether the Court feels in any way that some injustice may have been done, and whether this is an appropriate case to exercise that discretion.

There are some things, and certainly through no fault of the State, is the inability of the State or the defense to produce Rodney Hall. The State had to rely upon the testimony of Brian Conway. It became a question for the jury basically of the credibility of Brian Conway as against the credibility of Paul Katz. The jury after considerable deliberation decided that it apparently felt that Mr. Conway's testimony was more credible, and that Mr. Katz's testimony should not be given credence.

As I indicated, there are some matters that do disturb the Court....

Given all matters in this case, and as reluctant as the Court is to upset or disturb a jury's finding, there [are] enough things that do disturb me that I feel that I am going to give the defendant a new trial.

The Assistant State's Attorney requested that the judge place his reasons for granting the motion on the record. The judge replied:

I just think that there are enough things that disturb me as to whether or not there is at least a possibility of some injustices. It in no way involves the State's conduct in the matter. There is no impropriety on the basis of the State in this case. I just feel that it is a disturbing case, one that disturbed me about the verdict, and given that fact I am going to exercise my discretion in granting a new trial.

On 19 February 1987 the court heard argument on the State's motion to reconsider the order granting a new trial. Judge Miller clarified his reasons for that action.

What truly troubles me is I was faced with the prospect of sentencing somebody that I was not convinced was guilty. I understand, and I do not substitute my judgment for the jury, and I do not know--new trial I have granted. It certainly [is] no reflection on the State, as I indicated, nor is it on anything the State has done or the jury.

I understand it was a credibility issue, but that is the posture that I was in, and I have some grave reservations about what has happened, and it is a matter of [conscience] and I do not like to substitute my judgment for the jury, but they do not have to sentence Mr. Katz, and I did, and it troubled me.

The case troubled me, it still does. If another jury convicts him, and if somebody else has to sentence him, that is fine, but I just--it just troubles me too much, and that is the reason that I granted a new trial.

* * *

* * *

... I guess to some extent the judge is a 13th juror in some cases, and that should not be in many, but in this one I think it is appropriate, and I just felt that--given all things considered, I am not prepared to sentence, and I think he ought to have a new trial. I did then and I do now. As I say, I cannot articulate [a] good reason, but I just feel that it is appropriate.

The State, conceding it cannot appeal the new trial order, petitioned this Court for "a writ of prohibition and/or a writ of mandamus ... directing [Judge] Miller to vacate the order granting a new trial ... and to proceed with the sentencing of Katz...."

II. Prerogative or Power to Issue Extraordinary Writs

The State asserts that our authority to issue a writ of mandamus or prohibition arises from what it characterizes as our supervisory or superintending power over lower courts--a power it believes to involve an exercise of appellate as opposed to original jurisdiction. Additionally, the State points to Art. IV, § 18, of the Maryland Constitution concerning the rule-making authority of this Court and establishing the Chief Judge as "administrative head of the Judicial system of the State." Katz, on the other hand, denies that Art. IV, § 18, confers superintending control over the judicial decisions of lower courts, and avers that the power to issue prerogative writs, under the circumstances of this case, involves the exercise of original jurisdiction--a jurisdiction this Court lacks. Before we review these arguments in detail it will help to examine, in summary fashion, the history and nature of mandamus and prohibition at common law.

A. The Common Law Writs of Mandamus and Prohibition

A writ of mandamus is, in general, a command issuing in the king's name from the court of king's bench, and directed to any person, corporation, or inferior court of judicature, within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king's bench has previously determined, or at least supposes, to be consonant with right and justice. It is a high prerogative writ, of a most extensively remedial nature....

3 W. Blackstone, Commentaries on the Laws of England 110 (facsimile ed. 1768; hereinafter Blackstone) [emphasis in original].

The same author describes prohibition as

a writ issuing properly only out of the court of king's bench, being the king's prerogative writ ... directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that ... the cause ... does not belong to that jurisdiction, but to the cognizance of some other court.... [The writ also may issue] if, in handling of matters clearly within their cognizance, [the inferior courts] transgress the bounds prescribed to them by the laws of England....

Id. at 112.

These writs were two of the common law prerogative or extraordinary writs 1 that issued out of the Court of King's Bench. And the evolution of that court tells us much about the writs themselves, and the power of a court (absent constitutional or statutory authority) to issue them.

In its earlier days at least, the King actually sat in the Court of King's Bench, as by later fiction he was supposed to have done. 1 W. Holdsworth, A History of English Law 207 (7th ed. 1956) (hereinafter 1 Holdsworth). Moreover, in the medieval period, the court was closely connected with the Council. Id. at 209. "[T]he Curia Regis was a large undifferentiated court, composed both of the leading nobility lay and spiritual and of royal officials, by means of which the king carried on all the business of the central government--judicial, legislative, and executive." Id. at 477 [footnote omitted]. The notion of separation of powers--even today somewhat foreign to British constitutional law--simply did not exist. Thus this body exercised broad supervisory authority over subordinate officials, judicial and otherwise, probably without paying much heed to whether a particular act of supervision was judicial or administrative in nature. It exercised this authority in part through the prerogative writs. Id. at 226.

As time passed and government became more sophisticated, or at least more complex, these arrangements began to change. Thus, towards the end of the 14th Century, the Council was becoming "more especially the organ of the executive side of the government, and Parliament of the legislative side; while the court of King's Bench was tending to become...

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