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THE PRESIDENT: Delegate Powers.
DELEGATE POWERS: They refused to
grant certiorari when that and a number
of other questions were before it. I also
recall that the Fourth Circuit in a sort of
a left-handed way hinted that this question
was unconstitutional and mentioned the
fact that hopefully it would not be in the
constitution after this Convention had com-
pleted its work.
THE PRESIDENT: Delegate Dorsey.
DELEGATE DORSEY: That might have
been a personal wish but the Supreme
Court did refuse to grant certiorari be-
cause in Maryland the jury was a judge
of the law and the fact, is that not correct?
THE PRESIDENT.: Delegate Powers.
DELEGATE POWERS: The effect of the
Supreme Court failing to grant certiorari
is certainly not to approve of the question
involved. They refused to grant certiorari
and then later granted it and reversed the
lower courts many times.
THE PRESIDENT: Delegate Dorsey.
DELEGATE DORSEY: If the Supreme
Court felt it was denial of due process,
do you not feel they would have granted
certiorari ?
THE PRESIDENT: Delegate Powers.
DELEGATE POWERS: I think we all
realize that the Supreme Court very often
waits for the case which presents the issue
in proper perspective before it grants cer-
tiorari so it may deal with it properly.
THE PRESIDENT: Delegate Dorsey.
DELEGATE DORSEY: For over 100
years it has been in existence in Maryland
and the Supreme Court up to this date
never declared it unconstitutional, is that
correct?
THE PRESIDENT: Delegate Powers.
DELEGATE POWERS: The answer to
that is correct. For over 100 years we did
not furnish counsel to indigents and the
Supreme Court has said we must.
THE PRESIDENT: Delegate E. Church-
ill Murray.
DELEGATE E. C. MURRAY: Mr. Presi-
dent and fellow delegates, in deference to
those of you who have been so tolerant,
I shall limit my statements to one minute
instead of three. As a matter of fact, if
my cause is just, one minute should suf-
fice. This is the last opportunity you will
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have to obtain this privilege for our seg-
ment of the English-speaking people to
be judged by their peers and not solely
by the letter of the law. It has been passed
on from generation to generation for about
400 years. I beg you to join me in retain-
ing it.
THE PRESIDENT: Delegate Henderson.
DELEGATE HENDERSON: Mr. Chair-
man, almost 100 years ago the United
States Supreme Court in Spark v. The
United States decided that this concept of
the jury being the judge of the law was
not permissible in the federal courts and
if the Supreme Court, which at that time
did not undertake to lay down criminal
procedure for the states but has done so
within the the last 30 years, follows its
regular pattern, the first good chance it
gets, it will require that the states follow
the same procedure which they have pre-
scribed in the federal courts. In almost
very case, that has been the pattern that
they have followed.
Now, Judge Sobeloff, to come to the im-
mediate present, gave a strong hint that he
thought this was a violation of due process
and he left it up to this Convention to give
this ancient provision a decent burial, real-
izing, no doubt, that if he struck it down
as violating due process or equal protec-
tion of the laws, he would probably invali-
date all the criminal convictions in this
State since the year 1851 or at least he
would require that all pending cases be
retried.
But altogether aside from that, let us
look squarely at the merits of this contro-
versy. Why is it likely that the Supreme
Court will declare it to be a violation of
due process ? Simply because it denies to
an accused the right to have the law by
which he is convicted reviewed in a higher
court. That is the vice in the thing which
is so apparent that I would think any lay-
man would understand it. We have been
at pains to create in the lowest level a
fourth tier of courts manned by a judici-
ary who is trained in the law. Are we going
to say now that judges should not instruct,
could not advise the jury? Will we leave
it to a body of laymen chosen at random
to decide a man's fate and cut off the right
to have a review because who knows what
law the jury applies? If the judge in-
structs, that is spread on the record. When
the jury finds the law, no one knows what
law they are applying. I say to you that
that denies the accused a fair right of
appeal.
THE PRESIDENT: Delegate Dorsey.
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