Article from the Trial Reporter Special Issue 2023
By Thomas Maronick Jr., Esq.
The Writ of Habeas Corpus is one of the oldest principles of criminal law in the United States with a rich history dating back to medieval times. While it is referenced in the U.S. Constitution, its modern use is oft-misunderstood, oft-misapplied, despite being critically important to incarcerated defendants in Maryland who are held on state and/or on federal charges.
The origin of the writ of Habeas Corpus is somewhat obscure. There is evidence that it is of Roman origin. In the early days of Rome, the Tribune, who were magistrates appointed to protect the plebeians against oppressions and injustices of the ruling patrician class, had great power. The Tribunes were sole arbiters of the defendant's fate. They had complete power over the people. They could summon any citizen before them for trial or could discharge the debtor from arrest. In the condensation and codification of Roman court decisions known as the Pandects or the Digest which was compiled by order of Justinian, a writ so similar to habeas corpus existed that there can be no doubt that in Rome lies the true origin.
In medieval times, habeas corpus from the literal Latin “show me the body” was the expression used to bring a prisoner to court. This was later codified by an act of the English Parliament to prevent the arbitrary imprisonment of a citizen. As far back as the Magna Carta in 1215, one of the enumerated rights was the right not to be unlawfully imprisoned. The right was utilized as far back as 1305, but not codified under English law until 1640 when Parliament passed the Habeas Corpus Act of 1640 which was revised in 1679 under the Habeas Corpus Act of 1679 (31 Cha. 2 c. 2) when Parliament acted to define and strengthen the ancient writ of habeas corpus which required a court to examine the lawfulness of a prisoner's detention and thus prevent unlawful or arbitrary imprisonment.
The writ of habeas corpus was described in the eighteenth century by William Blackstone in his Commentaries, 125 as a "great and efficacious writ in all manner of illegal confinement." It is a summons with the force of a court order; it is addressed to the custodian (a prison official, for example) and demands that a prisoner be brought before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond their authority, then the prisoner must be released. Any prisoner, or another person acting on their behalf, may petition the court, or a judge, for a writ of habeas corpus.
The United States inherited habeas corpus from the English common law. The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause (found in Article I, Section IX, clause 2). This clause states that, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
In the first Judiciary Act of 1789, Congress explicitly authorized the federal courts to grant habeas relief to federal prisoners.
A landmark case applying habeas corpus during the Civil war was Ex Parte Merryman. John Merryman was born in Baltimore County, Maryland, on August 9, 1824. He was a prevalent and well-respected member of the agriculture community, making a living breeding cattle and winning numerous prizes. He used his passion and became a member of several associations, including serving as president of the U.S. Agricultural Society Maryland State Agricultural and Mechanical Association.
Prior to the Civil War, John Merryman became a politician. In 1861, he was a lieutenant in the Baltimore County Horse Guards. Merryman, a democrat, served as president of the Board of County Commissioners, Baltimore County, in 1857. He was State Treasurer from 1870 to 1872 and served in the House of Delegates from Baltimore County from 1874 to 1876.
Following the Baltimore riots, Hicks and Baltimore Mayor George William Brown urged President Lincoln not to send any more troops through Baltimore, saying they feared additional violence. Brown wrote, "it is my solemn duty to inform you that it is not possible for more soldiers to pass through Baltimore unless they fight their way at every step. If they should attempt it, the responsibility for the bloodshed will not rest upon me."
Late on the night of April 19, Hicks, Brown and Police Marshal George P. Kane met and devised a plan to burn all the railroad bridges north of Baltimore to prevent the arrival of more Federal soldiers. During the night, a city militia unit and a group of about sixty Baltimore policemen burned the bridges and cut telegraph lines, isolating the city from the north. Several days later, additional bridges between Cockeysville and the Pennsylvania line were burned by the Baltimore County Horse Guard.
The Mayor of Baltimore during this time urged President Lincoln to not allow any more troops through Baltimore City to mitigate retaliation, as a direct result of the riots occurring in the city during the Civil War. Under direct orders from Governor Hicks, Merryman helped prevent troops from entering Baltimore and inciting riots. Regardless, Merryman’s actions were viewed as secessionist. During the Civil War, Lincoln’s goal was to maintain control. In turn, Lincoln did not always abide by the Constitution.
On May 25, 1861, Merryman was arrested without a warrant at his plantation home by U.S. troops for purported treason and held in Fort McHenry. Merryman’s counsel filed a petition for Writ of Habeas Corpus in the United States Circuit Court for the District of Maryland. Chief Justice Rodger B. Taney ruled that Merryman was “improperly held” and granted the writ.
However, during the Civil War the Lincoln administration used his executive authority to authorize his military commanding general, George Cadwalader, to suspend the writ of Habeas Corpus at his discretion for public safety.
Chief Justice Taney cited Cadwalader for contempt of court. Taney argued that the suspension of the writ was outside of Lincoln’s constitutional authority. Ultimately relying on the fact, the suspension of a Writ is found in Article 1, legislative powers as opposed to Article 2, Executive powers. Therefore, the president did not have authority to suspend the Writ of Habeas Corpus.
Due to the extraordinary circumstances of the ongoing war, the writ was suspended and Merryman was allowed to be deprived of his liberties and held unconstitutionally. Eventually, in July 1861, Merryman was allowed to post bail. Merryman was never tried for treason and the case was dismissed in 1867.
Merryman became the seminal case for the use of Habeas Corpus. The argument was that he was a threat, despite having committed no crime. John Merryman died on November 15, 1881. In 2023, Merryman Ex Parte is still a landmark case.
More recently, Maryland’s then-named Court of Appeals in Sabisch v. Moyer (2019), “…identified four statutes that permit appeals or applications for leave to appeal in habeas corpus cases.” They are:
1) § 9-110 of the Criminal Procedure Article of the Maryland Code (2001, 2018 Repl. Vol.), which “authorizes an appeal under certain conditions from the denial of a habeas corpus application in an extradition case”;
(2) § 3-707 of the Courts and Judicial Proceedings Article, which “provides for applications for leave to appeal from the denial of relief in habeas corpus cases regarding the right to bail or allegedly excessive bail”;
(3) § 3-706 of the Courts and Judicial Proceedings Article, which applies where a writ of habeas corpus is issued “on the ground that the law under which the person was convicted is unconstitutional”; and
(4) § 7-107 of the Criminal Procedure Article.
In addition to its historical use, and prevalence in cases, habeas enjoys a multitude of modern uses, but the most frequent are in two categories: a release from pre-trial detention, and post-trial post-conviction relief.
When a defendant gets sentenced by a trial court, they are given numerous post-conviction rights.
“The writ of habeas corpus is a common law writ, having for its great object the liberation of persons imprisoned without sufficient cause.”
A writ of habeas corpus is not a remedy in it of itself, but rather a means to reach the remedy.
When a defendant files a post-conviction, a defendant will request a writ of habeas corpus to literally bring him from a jail to the hearing on post-conviction. Alternatively, that can be ordered by a judge, as defendants must be present for these type of post-trial hearings.
Typically, the most frequent modern use of Habeas Corpus is in the bail context. Upon arrest the defendant is given an opportunity to be seen before a commissioner. The commissioner must provide the defendant with a statement of charges and assess the defendant’s risk to the community. The commissioner will base the decision on whether to release the inmate ROR or give a bail/bond by factors focused mainly on past criminal history, threat to society, and being a flight risk.
The defendant has a bail review in District Court, and a judge there denies the defendant bond or sets the level of bail unreasonably high. The defendant argues that the court has erred and files for habeas corpus consideration.
Unlike the post-trial, post-conviction usage, the Habeas Corpus in the bail context requires that there be “material change in circumstances,” for a higher court, the Circuit Court of a jurisdiction in the state context, to reconsider the District Court's denial of bond. If it has been shown (such as a verified home address, where one might not have been available before), then the higher court will consider whether certain factors are met to grant the motion.
The factors include whether the lower court made a “clearly erroneous” or “abuse of discretion” decision, by not considering the appropriate factors of release, as outlined in Section 4-216 of the MD Criminal Code.
The factors include the defendant’s risk to the community, or specifically alleged victim based on the seriousness of the alleged offense, the defendant’s ties to the local community, and past record of criminal offenses and any failures to appear at court, and where the defendant would live upon release and amenability to favorably respond to court/pre-trial release conditions.
The court will require either a transcript or recording of the bail hearing at the lower court, and then a chance for the State to respond to any filing by defense, before even granting a hearing on habeas corpus release.
The procedure for filing for habeas corpus is fairly straightforward. In the Circuit Court, the judge will review the pleadings, the transcripts and any other information submitted in support of the Habeas to determine if the current bail status violated the defendant’s 8th Amendment rights.
It should be noted that a defendant receives a bail review in front of a court commissioner first on a charge, for which the defendant is required to have representation available. This can be either their own private counsel or a duty attorney who is assigned to handle commissioner hearings.
If bail is denied by the commissioner, the defendant will be scheduled for court bond review, usually in the District Court, but in some cases, such as in juvenile cases, in the Circuit Court.
The habeas is typically filed if the court bail has been denied; it is not eligible when the defendant may be denied by a court commissioner, since the defendant will have the opportunity for another bond review in front of the court.
A second bail review through Habeas Corpus is not guaranteed. An inmate must provide proof of the following conditions being met:
First, a material changes in circumstances. For instance, If the defendant can produce evidence to show their pre-trial officer did not verify the address that was given for release on bail. Additionally, if approval of a Home Detention Order like ASAP/Alert was not provided to the court in making their decision.
Second, an error in judgment. Such as, denying or setting an unreasonably high bail.
The Circuit Court will set a hearing for the grounds to be argued to change the bond based on the Maryland Rule 4-216 factors.
Several federal petitions for writ of Habeas were filed in recent years due to the COVID pandemic. In this situation, a defendant could have been denied bond by a Circuit Court, and filings could be made in federal jurisdiction, alleging that the Circuit Court had erred.
Typically, the federal court will not intervene until a defendant has shown that all other remedies have been exhausted. In this case, the defendant can file an appeal to the now-named Intermediate Appellate Court of Maryland, formerly the Court of Special Appeals, and consideration by the Maryland Supreme Court.
Additionally, if a defendant is in State custody and has exhausted all the state remedies to no avail, there is an additional effective remedy where one can file within one year of the conviction becoming final in the federal court. An inmate must be incarcerated or on parole to appeal at the federal level. If a defendant is on probation, that does not suffice to file at the federal level. Additionally, the issues that were raised in the state courts must be based on Federal Constitutional Rights or Federal Law in the appeal at the federal level.
For example, a defendant who is in District Court must appeal to Circuit through the habeas filing, then the Maryland Intermediate Appellate Court and finally the Supreme Court of Maryland. This must all be done prior to appealing to the Federal Court.
A conviction is final when either the time to directly appeal to a Maryland Court of Appeals expires or the date on which the Maryland Court of Appeals reaches a judgment affirming the conviction/sentence.
The federal court has narrower guidelines to grant relief. They can remand it back for a new trial. However, there are risks involved. Including, but limited to, being found guilty at a new trial and the new sentence imposed being greater than the original sentence.
Habeas corpus is an important part of Maryland jurisprudence. It can be tremendously helpful for defendants held in state cases, with opportunities for federal review. Its rich historical past and current usage make this a critical tool in courts across Maryland.
Tom Maronick Jr. is a senior partner at Maronick Law LLC, a firm he started in 2008 with offices across the state of Maryland. Tom works primarily out of Anne Arundel County and the Eastern Shore with a focus on criminal defense and personal injury.
He was named the Daily Record Criminal Law Power List 2022, one of only 25 lawyers in the state, and Tom is a six-time Super Lawyers honoree for criminal defense. He is the Co-Chair of the Criminal Law Committee for the MAJ as well as an executive board member for the Maryland Criminal Defense Attorneys Association. He is an active member of many Maryland Bar associations including Anne Arundel County, Baltimore City, Baltimore County, and Harford County. Tom is very involved in organizations & charities across Maryland, including working with the Creative Alliance in Baltimore, Annapolis Film Festival, several Irish charities, Atlantic General Hospital in Berlin MD, and the Ocean City Paramedics Foundation. He is also the attorney mentor for the Mock Trial team at Stephen Decatur High School. Tom splits his time between Anne Arundel County and Worcester County with his wife.
Leonard Gutkoska, Esq., and Rachel Pailet of Maronick Law LLC, contributed to and assisted with this article.
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