IN A CASE OF FIRST IMPRESSION (Smith v. State, 2022 WL 3699202), the Supreme Court of Maryland held that court officials wearing the “thin blue line” on their facemasks violated the defendant’s Sixth Amendment right to a fair trial. By so ruling, the court established a two-part test for determining if behavior by court officials was inherently prejudicial. In Smith, the state charged the defendant with numerous offenses, including first degree assault, following an alleged altercation with his 14-year-old daughter. At trial, pursuant to an order issued by the Supreme Court of Maryland, the judge required everyone in the courtroom to wear facemasks as a COVID safety precaution. The bailiffs, sheriff deputies, were required by the sheriff to wear facemasks with a “thin blue line” version of the American flag, a black and white copy of an American flag with one of the bars blue instead of black. Defendant’s attorney objected to the facemasks, arguing they indicated a bias for the state or for the police. The judge overruled the objection, and the defendant was convicted of second-degree assault and second-degree child abuse.

The defendant appealed to the Appellate Court of Maryland, which affirmed the convictions. The defendant filed a petition for writ of certiorari to the Supreme Court of Maryland, arguing that the bailiff’s face masks were inherently prejudicial. The court granted the petition.

In an opinion written by Judge Jonathan Biran, the Supreme Court stated that the right to a fair trial was guaranteed by the Sixth Amendment of the U.S. Constitution, incorporated against the states by the Fourteenth Amendment, citing Duncan v. Louisiana, 91 U.S. 145, 148–149 (1968), Estelle v. Williams, 425 U.S. 501, 503 (1976), and Hunt v. State, 345 Md. 122, 146 (Md. 1997). That right includes the right to a trial before unbiased jurors. The court stated that outside influences in the courtroom can violate a defendant’s right to a fair trial.

To show prejudice, the court determined that the defendant must demonstrate an actual prejudicial effect on the jurors and what transpired in the courtroom, citing Irvin v. Dowd, 366 U.S. 717, 727–728 (1961). The moving party can establish such an effect by illustrating how the challenged behavior presented an unacceptable risk of permissible factors coming into play, citing Holbrook v. Flynn, 475 U.S. 560, 570 (1986), Williams, supra, and Hill v. Ozmint., 339 F.3d 187, 199 (4th Cir. 2003).

According to Williams and Holbrook, inherently prejudicial acts include forcing the defendant to wear prison clothing, while non-prejudicial behavior includes four uniformed officers sitting behind six defendants and shackling defendants when justified by an essential state interest. Williams, at 509–511; Holbrook, at 562.

The court noted that a spectator’s behavior could also be prejudicial, citing Carey v. Misladin, 549 U.S. 70, 76–77 (2006), and State v. Franklin, 327 S.E.2d 449 (W. Va. 1985). Uniformed officers were allowed to be spectators in the gallery, citing People v. Ramirez, 479 P.3d 797, 821 (Cal. 2021), and Billings v. Polk, 441 F.3d 238, 246–47 (4th Cir. 2006).

The trial judge is responsible for ensuring that the courtroom is a venue where juries render decisions only on the evidence. State v. Jaime, 233 P.3d 554, 559 (Wash. 2020), Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997), and Holbrook, supra, at 571–572. The court ultimately held that the test to apply to the facts of Smith was whether the defendant demonstrated on the record that the challenged practice was observable by the jury, and that the challenged practice created an unacceptable risk that impermissible factors would come into play in the jury’s determination of the case.

The court stated that the face masks were very evocative in the immediate aftermath of the protests and counter-protests that occurred in 2020 and that the 2020 climate couldn’t be ignored when considering whether there was inherent prejudice, citing Wiggins v. State, 315 Md. 232 (Md. 1989).

Furthermore, the bailiff, who wore the facemask, was an agent of the court, and any political message conveyed by him gave the impression the court approved of the meaning, citing Parker v. Gladden, 385 U.S. 363, 365 (1966), Turpin v. Todd, 519 S.E.2d 678, 682 (Ga. 1999), and Lewis v. Pearson, 556 S.W.2d 661, 664 (Ark. 1977).

The court held that the facemask was seen by the jurors because the jurors were instructed to follow the bailiff many times, and the facemask was made so people would notice it, citing Wiggins.

Accordingly, the Supreme Court of Maryland reversed the lower court convictions based upon finding unfair prejudice, remanding the case to the circuit court.

The ruling can be applied to any overt behavior or any clothing of court agents beyond mere uniforms that causes unfair prejudice and in a climate that is still politically volatile, should be considered for future cases.


John Maclean is an assistant public defender practicing in Frederick County. The views in the article do not reflect the views of the Maryland Office of the Public Defender.