Everett Smith v. State of Maryland, No. 61, September Term, 2021. Opinion by Biran, J.

CONSTITUTIONAL LAW – SIXTH AMENDMENT – RIGHT TO A FAIR TRIAL

– INHERENT PREJUDICE. Petitioner was tried on assault charges in the Circuit Court 

for Kent County in October 2020. At his trial, two bailiffs wore face masks that displayed 

the “thin blue line” flag. After Petitioner was convicted of two charges, he argued on appeal 

that the display of the thin blue line flag was inherently prejudicial to his right to a fair trial 

under the Sixth Amendment to the United States Constitution. The Court of Appeals held 

that, to prevail on a claim of inherent prejudice, the defendant must: (1) have objected to 

the challenged practice in the trial court; (2) demonstrate, based on the record of the 

proceeding in the trial court, that the challenged practice was observable by the jury; and 

(3) establish that the challenged practice created an unacceptable risk that impermissible 

factors would come into play in the jury’s determination of the case. If the defendant meets 

all of these requirements, the State may attempt to show that the challenged practice was 

necessary to further a compelling governmental interest.

The Court held that the bailiffs’ display of the thin blue line flag on their face masks was 

inherently prejudicial to Petitioner’s right to a fair trial. The most benign meaning that can 

reasonably be attributed to the thin blue line symbol is a pro-law enforcement message. In 

a criminal trial, the display of a pro-law enforcement message in the courtroom is 

inappropriate. In this particular case, the display of the thin blue line symbol violated the 

Sixth Amendment because it was the bailiffs – agents of the court – who wore the offending 

masks, and because Petitioner’s trial occurred at a time when the thin blue line symbol was 

particularly evocative.
Circuit Court for Kent County

Case No. C-14-CR-19-000193

Argued: June 1, 2022

IN THE COURT OF APPEALS

OF MARYLAND

No. 61

September Term, 2021

EVERETT SMITH

v.

STATE OF MARYLAND

Watts

Hotten

Booth

Biran

Gould

Eaves

Getty, Joseph M.

(Senior Judge, Specially Assigned),

JJ.

Opinion by Biran, J.

Gould, J., and Getty, C.J., dissent.

Filed: August 26, 2022
2020 will be remembered as one of the most tumultuous years in American history.

As the nation struggled to navigate the COVID-19 pandemic, a white Minneapolis police

officer killed George Floyd, an unarmed African American man, on May 25, 2020. Floyd’s 

murder, which followed multiple killings of African Americans around the country over 

the previous decade, galvanized the Black Lives Matter movement, leading to enormous 

protests and counter-protests around the nation throughout the summer of 2020. The 

pro-police “Blue Lives Matter” movement increased in prominence nationally as a

response to Black Lives Matter and calls to “defund the police.” The presidential campaign 

fanned the flames of controversy throughout the summer and into the fall of 2020. 

The case before us here went to trial on October 14, 2020, against this backdrop of 

illness, fear, and civic and political unrest. In the Circuit Court for Kent County, the State 

charged Everett Smith, an African American man, with several criminal offenses arising 

from an alleged physical altercation with his 14-year-old daughter. In keeping with an 

Administrative Order issued by the Chief Judge of this Court, the trial court required all 

people in the courtroom for Smith’s trial to wear face masks to prevent the transmission of 

COVID-19. At the time of Smith’s trial, the Sheriff of Kent County was requiring all his 

deputies to wear face masks that displayed a “thin blue line” version of the American flag. 

The “thin blue line” is a controversial and polarizing symbol. Some view it as an expression 

of general support for law enforcement; others view it as a symbol of how police serve as 

a barrier between civilized society and criminals; and others view it as a racist symbol that 

expresses support for white supremacy and violence against African Americans.
2

The Sheriff’s deputies who served as courtroom bailiffs during Smith’s trial wore 

thin blue line face masks as required by the Sheriff. Immediately before jury selection, 

Smith’s attorney asked the trial court to direct the deputy who was acting as the bailiff at 

that time to wear a different mask that did not include an image of the thin blue line.

Believing the bailiff had a First Amendment right to wear the thin blue line flag mask, the 

trial court declined defense counsel’s request. The jury convicted Smith of second-degree 

assault and second-degree child abuse by a custodian. 

On appeal, Smith argued that the bailiffs’ display of the thin blue line flag on their

face masks violated his right to a fair trial under the Sixth Amendment to the United States 

Constitution. The Court of Special Appeals affirmed Smith’s convictions. Although the 

intermediate appellate court recognized that a courtroom is not a public forum where 

restrictions on citizens’ First Amendment rights are subject to heightened scrutiny, and the 

court expressed concern about the display of the thin blue line in courtrooms, it held that 

Smith did not his meet burden to demonstrate that he was deprived of a fair trial.

We conclude to the contrary. The bailiffs’ display of the thin blue line flag – and the 

pro-law enforcement message it conveyed – was inherently prejudicial to Smith’s right to 

a fair trial. We therefore vacate Smith’s convictions and order a new trial. 

I

America in the Fall of 2020

A. The Maryland Judiciary’s Reaction to the COVID-19 Pandemic

By mid-March 2020, COVID-19 had arrived in Maryland and was spreading rapidly 

throughout much of the State. Under the direction of the then-Chief Judge of this Court,
3

the Honorable Mary Ellen Barbera, Maryland’s courts suspended most in-person hearings

and initiated emergency procedures to protect the citizens of the State.

1 The unprecedented 

COVID-19 public health emergency caused the postponement of trials for months, as 

Maryland’s citizens and judicial system grappled with the global pandemic. 

In May 2020, Chief Judge Barbera issued an administrative order lifting the 

prohibition on jury trials, with trials to resume after October 5, 2020.2In October 2020, 

Chief Judge Barbera issued an amended administrative order on the phased resumption of 

operations as well as an amended administrative order on the resumption of trials scheduled 

to begin on October 5.3 Trials were permitted to go forward with strict safety requirements, 

including required masking in court buildings, mandatory quarantining, etc. Jury trials 

subsequently resumed under these mandated reopening and safety precautions.

B. The Murder of George Floyd and Subsequent Unrest

On May 25, 2020, George Floyd, an African American man, was killed by Derek 

Chauvin, a white Minneapolis police officer, during Floyd’s arrest for allegedly using a 

1 See Maryland Courts, (COVID-19) Administrative Orders, available at 

https://perma.cc/M4K7-T9DL. Maryland’s Judiciary continued in a health emergency 

posture until March 28, 2022. During that two-year period, the changing circumstances and 

phases of COVID-19 required continued adaptation by the courts and citizens of the State. 

2 See Order: Lifting the Statewide Suspension of Jury Trials and Resuming Grand 

Juries (May 22, 2020), available at https://perma.cc/Z9V8-7WDD. 

3 See Second Amended Administrative Order Lifting the Statewide Suspension of 

Jury Trials and Resuming Grand Juries (Oct. 2, 2020), available at https://perma.cc/7ZTLAW8G; Second Amended Administrative Order on the Progressive Resumption of Full 

Function of Judiciary Operations Previously Restricted Due to the COVID-19 Emergency 

(Oct. 2, 2020), available at https://perma.cc/X8UZ-3EG5.
4

counterfeit 20-dollar bill at a convenience store.

4 Officers stopped Floyd, pulled him out 

of his vehicle, and restrained him on the ground. Chauvin kneeled on Floyd’s neck for over 

eight minutes. An unresponsive Floyd was declared dead, and his death was ruled a 

homicide.5

Bystanders’ videos of Floyd’s killing spread rapidly, sparking widespread outrage 

against police brutality and racial injustice. Major cities across the United States saw large 

protests and civil rights demonstrations. The Black Lives Matter movement (“BLM”), 

founded in response to George Zimmerman’s fatal shooting of Trayvon Martin in 2012, 

gained significant support and following in the aftermath of Floyd’s murder.6 This social 

outcry brought other recent killings of African Americans – in particular, Ahmaud Arbery 

4 See, e.g., How George Floyd Died, and What Happened Next, N.Y. TIMES (May 

19, 2022), available at https://perma.cc/S39N-KS44.

5 Chauvin was charged with murder and related offenses in state and federal court. 

In 2021, Chauvin was convicted of second-degree unintentional murder, third-degree 

murder, and second-degree manslaughter in state court in Minnesota. John Eligon, et al., 

Derek Chauvin Verdict Brings a Rare Rebuke of Police Misconduct, N.Y. TIMES (Apr. 20, 

2021), available at https://perma.cc/XPX4-QLX8. He subsequently was sentenced to 270 

months of imprisonment. Tim Arango, Derek Chauvin is sentenced to 22 and a half years 

for murder of George Floyd, N.Y. TIMES (June 25, 2021), available at 

https://perma.cc/ZH88-PK27. Chauvin also pled guilty in federal court to violating Floyd’s 

civil rights and was sentenced to 252 months in that case. Chauvin’s federal sentence will 

run concurrently with his state sentence. Nicolas Bogel-Burroughs, Derek Chauvin Pleads 

Guilty to Violating George Floyd’s Rights, N.Y. TIMES (Dec. 15, 2021), available at 

https://perma.cc/RYE8-YPSH.

6 See Larry Buchanan, et al., Black Lives Matter May Be the Largest Movement in 

U.S. History, N.Y. TIMES (July 3, 2020), available at https://perma.cc/7C7Q-2AAX.
5

and Breonna Taylor – to national attention. Ahmaud Arbery was murdered by white men 

while out jogging; Breonna Taylor was killed by police in her own home.7

These highly publicized killings of African American men and women, and 

subsequent protests, led to widespread calls for police accountability, combatting of 

reported systemic racism in law enforcement, and introspection concerning police 

interaction with people of color. A call to “defund the police” gained support among 

protestors and reformers, leading to public discussion, proposals, and policymaking in 

cities and states across the country.8 Proponents of the “defund the police” movement 

sought to restructure and reallocate police responsibilities and funding toward other 

resource investments in communities, such as addressing housing and education disparity, 

mental health, poverty, and social services.9 Many law enforcement organizations and 

pro-law enforcement groups took defensive postures toward these calls to “defund the 

police.”

10

7 Richard Fausset, What We Know About the Shooting Death of Ahmaud Arbery, 

N.Y. TIMES (Feb. 7, 2022), available at https://perma.cc/9M9X-7HJL; Richard A. Oppel 

Jr., et al., What to Know About Breonna Taylor’s Death, N.Y. TIMES (Apr. 26, 2021), 

available at https://perma.cc/565B-3DKE.

8 Giovanni Russonello, Have Americans Warmed to Calls to ‘Defund the Police’?, 

N.Y. TIMES (July 3, 2020), available at https://perma.cc/72SH-8L3F.

9 See Farah Stockman and John Eligon, Cities Ask if It’s Time to Defund Police and 

‘Reimagine’ Public Safety, N.Y. TIMES (June 5, 2020), available at 

https://perma.cc/2NW7-GAGT (detailing Minneapolis, Los Angeles, and New York City’s 

discussions and decision-making on major police reforms).

10 Juliana Kim and Michael Wilson, ‘Blue Lives Matter’ and ‘Defund the Police’ 

Clash in the Streets, N.Y. TIMES (July 22, 2020), available at https://perma.cc/UHX4-F7T2

(stating that supporters of Blue Lives Matter “share a frustration with the criticism of police 
6

C. The “Thin Blue Line” Flag

Counter-protests to BLM also appeared around the country during the summer of 

2020. Pro-law enforcement demonstrations, e.g., the “Blue Lives Matter” movement 

launched in response to murders of New York City police officers in 2014, served as a 

counterpoint to the BLM and “defund the police” movements.11 The “thin blue line” 

symbol, while having existed for some time, began to appear more frequently at these 

counter-protests. 

1. The “Thin Blue Line”

The “thin blue line” draws its origins from the “thin red line” of the British Army 

during the Crimean War. During the battle of Balaklava, an unconventional two-deep line 

of Scottish infantry successfully repelled a Russian cavalry charge. TREVOR ROYAL, 

CRIMEA: THE GREAT CRIMEAN WAR, 1854-1856, at 266-68 (St. Martin’s Press, 2000). The 

soldiers wore red uniforms and were described as a “thin red streak” or “thin red line” 

standing as the line in defense of their country. Id. at 267-68. This usage and imagery of a 

“thin red line” describing military as the last line of defense has continued into modern 

popular culture, including the 1998 film The Thin Red Line. 

While it is unclear when exactly the thin red line inspired the creation of the “thin 

blue line,” the phrase and image were first publicly used in the 1920s and became more 

behavior and tactics and the calls to defund the police,” and quoting a pro-police organizer 

as saying that “this movement to ‘Back the Blue’ was galvanized when calls to defund and 

abolish the police became a very real force in this country”). 

11 See id. (describing a street altercation between supporters of law enforcement and 

BLM supporters in Brooklyn, NY).
7

widely known in the 1950s due to Los Angeles Police Department (LAPD) Chief William 

H. Parker.12 Tasked with cleaning up department corruption, Parker reformed the LAPD 

from “local disgrace to national fame – a crisp, militaristic ‘thin blue line’ ....” Parker also 

established a department-sponsored TV program called “The Thin Blue Line” and 

consistently used the phrasing in interactions with the press.13

2. The “Thin Blue Line” Flag

There are at least two popular iterations of the “thin blue line” flag, one depicting a 

plain black flag with a large blue stripe across and another as a version of the American 

flag depicting black and white stars and stripes with a distinct blue line substituted for one 

of the stripes.14 Andrew Jacob, president of Thin Blue Line USA, claims credit for creation 

of the thin blue line flag in 2014, although not the image itself.15

In 2020, some counter-protesters to BLM and pro-police protesters adopted the thin 

blue line image and flag as symbolic of their support for law enforcement.16 The thin blue 

12 David Shaw, Chief Parker Molded LAPD Image – Then Came the ‘60s: Police: 

Press treated officers as heroes until social upheaval prompted skepticism and 

confrontation, L.A. TIMES (May 25, 1992), available at https://perma.cc/7W9U-Q627. 

13 Id. 

14 See Thin Blue Line USA, available at https://perma.cc/8BQ6-6XH4.

15 Maurice Chammah and Cary Aspinwall, The Short, Fraught History of the ‘Thin 

Blue Line’ American Flag, POLITICO (June 9, 2020), available at https://perma.cc/WWQ6-

J53F.

16 See, e.g., Kim and Wilson, supra note 10 (describing pro-police supporters 

waving thin blue line flags at a protest in New York City); Reuters Staff, Fact Check: U.S. 

and ‘Thin Blue Line’ Flags Were Displayed at Trump Wisconsin Rally, Reuters (Oct. 27, 

2020), available at https://perma.cc/LTT2-SP8F (describing how “[t]he ‘thin blue line’ has 
8

line flag also has been displayed by white supremacists and violent extremists. During the 

“Unite the Right” rally in Charlottesville, Virginia, in 2017, the thin blue line flag was 

flown by white supremacists along with Confederate and Neo-Nazi flags and symbology.17

Due to white supremacist co-option of the thin blue line flag, some law enforcement 

agencies have banned the use of the image.18

3. The Various Potential Interpretations of the Thin Blue Line Flag

The thin blue line flag has been interpreted to convey several meanings and 

connotations, including showing support for law enforcement and “the men and women 

who put their lives on the line every day to protect us.”19 According to Thin Blue Line 

also been displayed at rallies of the ‘Blue Lives Matter’ movement ... [and that] ‘Blue Lives 

Matter’ was launched in response to ‘Black Lives Matter’ ...”); Alexander Mallin and 

Meredith Deliso, Blue Lives Matter supporters arrested with slew of firearms outside 

Kenosha after police received tip about possible shooting, DOJ says, ABC NEWS (Sept. 3, 

2020), available at https://perma.cc/R4AV-NGB9.

17 Sean Rossman, ‘Thin Blue Line’: What Does An American Flag With a Blue Line 

Mean?, USA TODAY (Aug. 18, 2017), available at https://perma.cc/NGL9-X45K; Tovia 

Smith, Thin Blue Line Flags Stir Controversy in Mass. Coastal Community, NPR (July 31, 

2020), available at https://perma.cc/MH2B-PHCH (stating how “the flag has also been 

associated with white supremacists groups”).

18 Chief Kristen Roman, Thin Blue Line Update, UW-Madison Police Department 

(Jan. 26, 2021), available at https://perma.cc/5BY4-QL95 (explaining that the thin blue 

line image had been co-opted by white supremacists and violent extremists who attacked 

the U.S. Capitol; that the image therefore had caused fear among some of the jurisdiction’s 

citizens, and in light of those “relevant community concerns, perceptions, and fears,” the 

thin blue line image was banned from public displays in official capacities).

19 Thin Blue Line USA Blog, What is the Meaning of the Thin Blue Line? (Jan. 23, 

2018), available at https://perma.cc/4EPU-U7YT.
9

USA, the flag can also indicate pride in law enforcement and patriotism.20 Thin Blue Line 

USA also describes the symbolic meaning of the space “above the blue line [as] 

represent[ing] society, order and peace,” while the space below indicates “crime, anarchy 

and chaos.”

21

“The Thin Blue Line running between them, ‘law enforcement,’ keeps crime 

from pervading into society.”22 Lastly, Thin Blue Line USA speaks to the flag representing

“courage and a tribute to those who have fallen in the line of duty.”23 Thin Blue Line USA 

has explicitly denounced any use of the flag by those with racist, violent, or extremist 

views, including those who protested in Charlottesville and at the United States Capitol on 

January 6, 2021.

24

The flag is seen by some in law enforcement as something that “‘holds [us] together’ 

and ‘protects us.’”

25 Or the thin blue line flag can stand for “‘maintaining order during 

unrest.’”26

20 Id. 

21 Id. 

22 Id. 

23 Id.

24 Id.; Rossman, supra note 17.

25 Rossman, supra note 17 (quoting Bill Johnson, executive director of the National 

Association of Police Organizations).

26 Id. 
10

However, “some say it symbolizes a blatantly racist agenda.”27 As LAPD Police 

Chief “Parker was known for unambiguous racism,” many view the entire history of the 

thin blue line as steeped in anti-Black sentiment.28 Because the flag and symbol have been 

used in counter-protests to BLM, “many believe it connotes opposition to ending police 

brutality and systemic racism.”29 On occasion, additional symbols associated with violence 

have been added to the flag, such as a skull associated with “the Punisher,” a comic book 

character who extols extra-judicial violence and killings.30 Some believe that “[w]hat 

originally began as a banner supporting law enforcement in recent years has been 

increasingly hijacked by White Supremacist groups who use it as a Neo-Confederate flag 

and symbol of the anti-Black Lives Matter movement.”31

In sum, the attributed meanings of the thin blue line flag run the gamut from showing 

pride in and support of law enforcement to promotion of violent white supremacy.

27 Smith, supra note 17.

28 Chammah and Aspinwall, supra note 15.

29 Smith, supra note 17.

30 Chammah and Aspinwall, supra note 15.

31 Controversial “Thin Blue Line” Flag Replaces America’s “Stars and Stripes” at 

Trump Rally in Waukesha, Milwaukee Independent (Oct. 26, 2020), available at 

https://perma.cc/7B7L-79H4.
11

II

This Case

A. The Charges 

On November 20, 2019, Smith was charged in the Circuit Court for Kent County by 

way of a Criminal Information with first-degree assault, second-degree assault, first-degree 

child abuse, and related charges. The charges arose from Smith’s alleged assault of his 

14-year-old daughter, L.H., on October 3, 2019. 

B. The Trial 

Smith’s case came on the docket for trial on October 14, 2020. 

1. The Defense’s Objection to the Bailiff’s Display of the Thin Blue Line Flag on 

His Face Mask

Immediately prior to jury selection, defense counsel expressed concern about the

courtroom bailiffs’ display of the thin blue line flag on their face masks: 

So the defense has raised a couple of questions and I wanted to formally 

address those at this time. I think, first and foremost, we did not file a line or 

some sort of motion to preclude this from happening but have been 

communicating with the State and the Court over a period of a week or more 

regarding the facial coverings that the bailiff’s [sic] have been ordered to 

wear.

These facial coverings, as I understand it, are not a choice that the bailiff’s 

[sic] have in terms of wearing or not wearing but, rather, have been ordered 

by the elected sheriff of this county to be as part of their uniform.

These facial coverings, for the record, depict[] what is commonly [known] 

as the thin blue line, American Flag. It’s a black and white copy of an 

American Flag with one of the bars across instead of being in black, it is in 

blue. It makes a visual representation of this concept of a thin blue line as 

something that the police are standing between order and chaos. That they -

- it is inherently a political statement. It is often used as a counterpoint in 

terms of arguments about whether black lives matter and if that’s a political 
12

statement or not, this is often a counterpoint and an argument I think is 

inherently a political statement, especially if it’s ordered by someone elected 

in political office.

I think that the Court can exercise its judicial power in establishing decorum 

and procedures in the courtroom and I think it, in fact, is inherent in judicial

ethics to make sure that the Defendant receives every appearance of a fair 

trial and, in fact, does receive a fair trial.

The Defendant, Mr. Smith, and I have discussed this matter. He feels that the 

presence of this emblem on the facial coverings of the bailiffs indicates a bias 

in favor or [sic] either police of [sic] the State[.] 

The trial court then asked defense counsel whether the bailiff’s uniform also 

reflected a bias in favor of the police or the State. Defense counsel replied that he did not 

believe that a police uniform is “an inherently political statement,” but that the symbol 

displayed on the bailiff’s facemask “is used ... by members of the police [and] also by 

member[s] of the public to indicate a political statement in support of police and in 

contradiction to some of the movements, social movements, that we’re seeing today.” 

Thus, according to the defense, “having that representation on the facial coverings is 

making a political statement in a place that is supposed to be unbiased and providing a 

neutral and fair place for his trial today.”

The prosecutor responded: “I don’t think we can just assume that it is a political 

statement.... There’s no evidence before the Court or the testimony from the sheriff or 

from the deputy what exactly this means. It simply is an American Flag with a blue stripe. 

There are no words present on it that convey anything.” However, if it was meant to be 

political speech, the prosecutor contended, such speech would be entitled to “more 

protections.” Thus, the prosecutor framed the question for the trial court as “whether this 
13

mask, which it is the deputy’s constitutional right to wear, whether that infringes on the 

Defendant’s constitutional right to a fair and impartial trial. And I would submit that any 

potential bias ... from a face covering that probably nobody even noticed would be 

completely diminished by an officer wearing a uniform with a badge and a firearm.”

A few moments later, the following colloquy occurred among the court, defense 

counsel, and the prosecutor:

THE COURT: Well, is there any -- I mean, is there any law that you’re aware 

of that distinguishes between the sheriff’s office employees and a member of 

the general public wearing something -- let’s assume, for the sake of

argument it’s a political statement, I think that’s only one possible 

interpretation. I don’t think it’s the -- by any means, the only interpretation.

But is there any law that you’re aware of that distinguishes between their 

ability to express a political -- I mean, the case law is pretty clear that the 

courthouse is a public forum and that it’s -- political speech is

constitutionally protected and any regulation to limit it has to be narrowly 

tailored to serve a compelling government interest.

[DEFENSE COUNSEL]: True.

THE COURT: Is there anything that you’re aware of that says that they are 

in any different position than anybody else coming in the courthouse?

[PROSECUTOR]: Judge, the law that I’m aware of, ... comes down to 

whether or not a government agency would allow any sort of speech. So it 

has to allow all speech or no speech.

THE COURT: Right.

The prosecutor at one point recognized that the trial court “has the authority to 

establish the decorum in the courtroom ... to indicate that there is no bias toward any party, 

that everyone who is present receives a fair treatment[.]” The trial court responded: 

Well, it’s the Court’s ability to enforce the decorum as the Court sees fit but 

it has -- that has to be done within the framework of the [C]onstitution -- I
14

mean, the Court can’t ... set its own rules on what it thought decorum should 

be if that -- if those rules conflict with and contradict the Constitution.

After additional argument, the trial court delivered its ruling from the bench: 

The Court’s going to find that while it is, you know, arguable, it’s [sic] 

potential that these are intended to be a political statement, there is no 

evidence to suggest that that’s what, in fact, it is; that it’s merely something 

that the elected sheriff of this county has purchased for whatever reason and

required his deputies to wear that it -- that even if it does reach the level of 

being only worn for -- to make some sort of political statement, that it’s 

protected by the First Amendment to the Constitution in a public forum and

therefore the Court’s going to deny the request.

2. Voir Dire Through Closing Arguments

At the outset of the jury selection process, the trial court explained that questioning 

of the prospective jurors would proceed “in two phases” to allow for social distancing. The 

court explained that this was necessary because “people have concerns about COVID-19 

and that’s understandable.” The court catalogued several measures designed to protect the 

health and safety of those present, including maintaining six feet of separation between 

people, “much more frequent[]” cleaning of the courthouse, the erection of “barriers” in 

the courtroom, and the presence of multiple hand sanitizing stations. The court stated that 

“[a]ll of these steps are based on the most recent guidance we receive from public health 

organizations and we, again, are doing everything we can to try and insure your protection.” 

The court then told the potential jurors: “If any of you have concerns, as we go through 

this process, please let the bailiff or the sheriff’s deputies or one of the court staff know 

and we’ll attempt to do everything we can to address them.”

Voir dire then proceeded. As required, the trial court asked the prospective jurors 

questions designed to reveal bias in favor of or against law enforcement. After completing 
15

strikes for cause, the trial court adjourned the proceedings for the day. Jury selection 

resumed the next morning, October 15, 2020, with the parties exercising peremptory 

challenges. The trial court directed each remaining potential juror, in turn, to walk to the 

front of the room, stand in the witness box, and lower their face mask for a few seconds so 

that the parties could see their full faces. The first potential juror who was acceptable to 

both parties – and who therefore was going to serve as a juror – was instructed by the trial 

court to “follow the bailiff,” who showed the juror where to sit in the jury box. The trial 

court similarly told most of the other accepted jurors to “follow the bailiff” as they took 

their seats. In several of those instances, while directing the particular juror to follow the 

bailiff, the trial court also asked the juror to put their mask back on.32

After the jury was sworn, the trial court gave preliminary instructions. As part of 

that presentation, the court told the jurors:

After the attorneys make opening statements, each of you will be given a 

notepad and a pencil to use to take notes during the evidence portion of the 

trial. Please write your juror number and nothing else on the first page of the 

notepad. At the end of the day, if we go into a second day, and that’s not 

anticipated at this point, the bailiff will collect the notepads and no one will 

be permitted to read them.

In addition, the trial court instructed the jurors:

There may be public interest in this case and news coverage or other 

discussion of it. For that reason, do not read any article or any other report or 

watch or listen to any television or radio news reports about the case. If 

32 For example, the court told one juror: “Sir, follow the bailiff, please. And you can 

put your mask back up.” In another instance, the court told a juror: “Ma’am, you can put 

your mask on and follow the bailiff there.” To another of the accepted jurors, the trial court 

said: “Sir, you can put your mask back on and follow the bailiff there and he’ll tell you 

where to sit.” The record reflects that trial court was vigilant in ensuring that everyone in 

the courtroom complied with the mask mandate. 
16

anything occurs contrary to these instructions, please write a note and give it 

to the bailiff as soon as possible.

Further, the court told the jurors that they should 

not express any views, comments or opinions about the case to anyone. And 

if anyone does try to communicate with you or if you inadvertently overhear 

something, again, make sure that you write a note or communicate that to 

your forelady and she can communicate it to the bailiff or one of the 

courtroom personnel.

After a hearing on a motion outside the presence of the jury, the parties delivered 

their opening statements and the State presented its case-in-chief. The State’s first witness 

was the alleged victim, L.H., whose testimony was interrupted by the lunch recess. When 

the case resumed after lunch, the trial court told the attorneys: 

And I’ll just note for you all. The bailiff did indicate to me that the alternate 

juror was saying he was having some difficulty hearing [L.H.]. So I’m going 

to remind her again to get up in the microphone or maybe the microphone 

should be lowered so it’s coming out the bottom of the mask.

L.H. then completed her testimony for the State, after which the State called the

State Police trooper who had responded to the scene of the alleged assault on L.H. After 

the State rested, the defense recalled L.H. She was the sole witness in the defense’s case. 

After the parties concluded their presentations of evidence, the trial court instructed the 

jury. At the outset of those instructions, the court said: 

Ladies and gentlemen, the time has come for me to instruct you as to the law 

that you are to apply in this case. I’m going to read through -- the bad news 

is you have to listen to me read through all of these instructions. The good 

news is I don’t expect you to remember them all so I send back with the jury 

a copy of the instructions. So if you need to or want to refer to them during 

your deliberations, you have them back there with you. If you do have any 

questions during your deliberations, I would ask you to knock on the door --

have your forelady knock on the door and the bailiff will have a form that he 
17

will hand to the forelady so you can fill out with the question that you have 

and that’ll be presented back to the bailiff, then delivered to the Court.

After closing arguments, the court again told the jurors that, if they had any 

questions, they should “knock on this door -- there are going to be two doors to this room 

which is unusual for a jury room. If you have any questions, knock on this door here in the 

courtroom. That’s where the bailiff will be in the courtroom.” The trial court also stated 

that it was “going to put one of the deputies on the other door just to make sure that nobody 

is bothering you.” Soon afterwards, the trial court directed the clerk to “swear the bailiffs,” 

explaining that “we need to swear both of you since you're both on the door. Another first.”

3. Verdict and Sentence

The jury deliberated for approximately 45 minutes before reaching its verdict. The 

jury found Smith guilty of second-degree assault and second-degree child abuse by a 

custodian. The jury acquitted Smith of first-degree child abuse and reckless 

endangerment.33

On January 4, 2021, the trial court sentenced Smith to 15 years of imprisonment for

second-degree child abuse, with all but five years suspended, and five years for 

second-degree assault, to run concurrently, to be followed by a five-year term of probation. 

Smith timely noted an appeal.

33 In addition, the trial court entered a judgment of acquittal on a count charging 

Smith with first-degree assault, and the State’s Attorney dismissed the charge of 

second-degree child abuse by a household member by entering a nolle prosequi in open 

court. 
18

C. Appeal

The Court of Special Appeals affirmed Smith’s convictions, holding that the display 

of the thin blue line flag did not violate Smith’s right to a fair trial. Smith v. State, 253 Md. 

App. 25, 44 (2021). The intermediate appellate court stated that the trial court was incorrect 

when it said that a courtroom is a public forum for purposes of the First Amendment. Id. 

at 35-36. To the contrary, it is a nonpublic forum and, as such, “the government has much 

more flexibility to craft rules limiting speech” in a courtroom. Id. at 36 (internal quotation 

marks and citation omitted). 

Whether or not the trial court’s reliance on the bailiff’s First Amendment rights was 

incorrect, the intermediate appellate court concluded that “the bailiff’s wearing of the ‘thin 

blue line’ mask in the courtroom was not so inherently prejudicial as to deprive Smith of a 

fair trial.” Id. at 35. The court acknowledged that the thin blue line flag “is perceived by 

many as a racist symbol antithetical to the Black Lives Matter Movement.” Id. at 40. 

However, the court noted that others “perceive the ‘thin blue line’ flag to be a general 

symbol of support of law enforcement or pride in policing.” Id. The court reasoned that, 

because “the symbol of the ‘thin blue line’ flag does not have one generally accepted 

meaning but instead is interpreted as meaning a variety of different things,” the “context in 

which the ‘thin blue line’ face mask was displayed in this case must be considered.” Id. at 

43-44. The court continued:

Specifically, the “thin blue line” flag at issue in this case appeared on the face 

mask of a uniformed and armed law enforcement officer serving as a 

courtroom bailiff. Inasmuch as the “thin blue line” flag is seen by some as a 

symbol of general support for law enforcement, a reasonable juror may have 

inferred that the law enforcement officer wearing the “thin blue line” flag 
19

face mask was doing so in order to display his pride in being a law 

enforcement officer. 

Id. at 44 (footnotes omitted). For this reason, the Court of Special Appeals “reject[ed]

Smith’s inherent prejudice argument and [held] that the wearing of a ‘thin blue line’ flag 

face mask by a uniformed courtroom bailiff did not constitute inherent prejudice depriving 

Smith of his right to a fair trial.” Id.

However, the Court of Special Appeals made clear that its holding was not an 

endorsement of the display of the thin blue line flag in courtrooms:

We are mindful to make explicit what this opinion does not hold. We do not 

suggest that a bailiff wearing a “thin blue line” flag face mask is a good 

practice, nor do we suggest that prejudice can never arise in different 

circumstances in which actual prejudice rather than inherent prejudice is 

alleged. Indeed, a litigant may have a reasonable argument that a bailiff 

wearing a “thin blue line” flag face mask caused actual prejudice in a case 

involving, for example, allegations of excessive force or other misconduct 

by a law enforcement officer, or in a case in which a law enforcement 

officer’s credibility is weighed against that of a layperson. Our opinion in 

this case does not foreclose such an argument. Furthermore, a prohibition on 

the wearing of “thin blue line” symbols by courthouse staff may be a prudent 

prophylactic measure to avoid issues on appeal, as well as to err on the side 

of caution to ensure litigants’ right to a neutral and fair tribunal. Here, 

however, we do not deal with allegations of actual prejudice. Our holding, 

therefore, is limited to the inherent prejudice argument raised in this case[.]

Id. at 44-45 (emphasis in original).

Smith filed a petition for certiorari, in which he asked this Court to decide the 

following question: “In a reported case of first impression, did the Court of Special Appeals

wrongly hold that the courtroom bailiff’s face mask depicting the ‘thin blue line’ was not
20

inherently prejudicial to Petitioner?” On February 9, 2022, we granted Smith’s petition.

Smith v. State, 477 Md. 382 (2022).

34

III

Standard of Review

Whether the display of the thin blue line flag mask was inherently prejudicial 

presents a question of law, which we review de novo. See, e.g., State v. Robertson, 463 Md.

342, 358 (2019). We also review constitutional claims, such as Smith’s claim based on the 

Sixth Amendment, de novo. See, e.g., Vigna v. State, 470 Md. 418, 437 (2020).

IV

Discussion

Smith argues that the bailiffs’ display of the thin blue line flag on their face masks

in the courtroom was inherently prejudicial and therefore violated his Sixth Amendment 

right to a fair trial. He contends that the thin blue line symbol posed an unacceptable risk 

of impermissible factors coming into play because it injected bias into his trial. According 

to Smith, at the very least, the thin blue line symbol conveyed general support for law 

enforcement. However, Smith argues that it also could have been interpreted by jurors as 

presenting a “loyalty test,” which effectively asked jurors: “[W]hich side are you on? Do 

you stand with civilized society, or the criminal element?” Or, Smith observes, the jurors 

could have interpreted the display of the thin blue line symbol as expressing support for 

34 In his petition for certiorari, Smith also sought review of a question concerning 

the State’s rebuttal closing argument. We did not include that question in the writ of 

certiorari that we issued.
21

white supremacy. According to Smith, all of the possible interpretations of the thin blue 

line symbol communicate biases that fundamentally detract from the neutrality and 

impartiality essential to a criminal trial. Smith further contends that the fact that the symbol 

was worn by the bailiffs – officers of the court – increased the risk that the jurors would 

decide the case based on bias, rather than on the evidence presented to them, because the 

jurors would conclude that the court approved of the messages conveyed by the thin blue 

line symbol. 

The State, on the other hand, contends that the multiple meanings a juror could draw 

from the thin blue line flag dooms Smith’s claim because a finding of inherent prejudice 

requires that a courtroom practice convey one clear and unmistakable message that 

comments on the particular defendant’s case. According to the State, if the jurors noticed 

the symbol at all, they most likely would have seen it as expressing pride in law 

enforcement, which would not undermine Smith’s right to a fair trial. In this regard, the 

State observes that a uniformed bailiff does not hold the same place of authority as a trial 

judge presiding over the case. Thus, according to the State, while a judge wearing a pro-law 

enforcement message in a criminal trial would be problematic, a bailiff can wear a symbol 

expressing pride in their profession without infringing on a defendant’s right to a fair trial. 

Any concern about the jurors being swayed by such a pro-law enforcement message, the 

State says, is ameliorated by the fact that the jurors were screened for pro-law enforcement 

bias during voir dire.

Finally, the State contends that Smith failed to create a detailed enough record to 

establish inherent prejudice. According to the State, the record reveals little about what
22

jurors actually saw. For example, Smith failed to make a record of the specific location 

where the bailiffs were positioned in the courtroom. In the absence of such a record, the 

State contends, Smith cannot show that there was an unacceptably high risk of the jurors 

receiving any of the messages that the thin blue line flag may have conveyed.

We agree with Smith. The thin blue line flag conveys a pro-law enforcement

message that bears on the criminal justice system. As such, it has no place in the courtroom

in a criminal trial. We conclude that the display of the flag was inherently prejudicial in 

this case because it was court agents who wore the symbol and because of the fraught 

national atmosphere concerning policing at the time Smith’s trial went forward.

A. The Right to a Fair Trial and Inherent Prejudice

The right to a fair trial is guaranteed by the Sixth Amendment to the United States 

Constitution, as incorporated against the States by the Fourteenth Amendment. Duncan v. 

Louisiana, 391 U.S. 145, 148-49 (1968). “The Sixth Amendment’s guarantee of a fair trial 

and impartial jury is the touchstone of our justice system.” Hunt v. State, 345 Md. 122, 146 

(1997) (footnote omitted); see also Estelle v. Williams, 425 U.S. 501, 503 (1976) (right to 

a fair trial is a “fundamental liberty secured by the Fourteenth Amendment”). A fair 

criminal trial requires that the jurors “be without bias or prejudice for or against the 

defendant and that their minds be free to hear and impartially consider the evidence and 

render a fair verdict thereon.” Hunt, 345 Md. at 146.

Events or practices that inject outside influences into the courtroom, if sufficiently 

prejudicial, can violate a defendant’s right to a fair trial. A finding either of actual prejudice 

or inherent prejudice is sufficient to demonstrate a violation of the Sixth Amendment. To 
23

prove actual prejudice, the defendant must show some actual prejudicial effect on the jurors 

based on what transpired in the courtroom. See, e.g., Irvin v. Dowd, 366 U.S. 717, 727-28 

(1961) (describing how, in a rural community, substantial pretrial publicity in a murder 

case actually prejudiced the defendant’s right to a fair trial).

A showing of inherent prejudice does not require proof that the complained-of 

practice actually affected the jurors’ decision-making process. As the Supreme Court has 

stated, “[t]he actual impact of a particular practice on the judgment of jurors cannot always 

be fully determined.” Williams, 425 U.S. at 504. Yet, there is “no doubt that the probability 

of deleterious effects on fundamental rights calls for close judicial scrutiny.” Id. “Courts 

must do the best they can to evaluate the likely effects of a particular procedure, based on 

reason, principle, and common human experience.” Id. A defendant establishes inherent 

prejudice if the defendant shows that the challenged practice presented “‘an unacceptable 

risk ... of impermissible factors coming into play.’” Holbrook v. Flynn, 475 U.S. 560, 570 

(1986) (quoting Williams, 425 U.S. at 505). This is a difficult showing to make. Hill v. 

Ozmint, 339 F.3d 187, 199 (4th Cir. 2003).

Several of the leading inherent prejudice cases have concerned whether courtroom 

decorum or security measures posed an unacceptable risk that the jurors would make 

judgments based on factors outside of the evidence. In Estelle v. Williams, the defendant 

was unable to post bail and therefore was in custody. He wore prison-issued clothing 

throughout his trial. See Williams, 425 U.S. at 509-11. He argued to the Supreme Court 

that his prison garb had effectively marked him as guilty in the eyes of the jury, thereby 

infringing on the presumption of innocence. See id. at 503-04. The Court agreed that 
24

prison-issued clothing would be a “constant reminder of the accused’s condition,” and that 

it was “so likely to be a continuing influence throughout the trial that ... an unacceptable 

risk is presented of impermissible factors coming into play.” Id. at 504-05. The Court also 

explained that, unlike shackles used to restrain a disruptive defendant, requiring a 

defendant to go to trial in prison clothing does not further an essential state policy. Id. at 

505. Nevertheless, the Court affirmed the judgment of conviction because the defendant 

failed to object at trial to wearing the prison-issued clothing. See Williams, 425 U.S. at 

512-13.

In Holbrook v. Flynn, six defendants were tried together for allegedly robbing a 

bank. Holbrook, 475 U.S. at 562. As the proceedings began, four uniformed state troopers 

sat in the spectator’s section behind the bar directly behind the defendants. Id. Defense 

counsel objected that the uniformed officers “would suggest to the jury that the defendants 

were of ‘bad character.’” Id. at 563. The trial court ruled that the defendants would not be 

prejudiced by these state troopers sitting behind the bar, and in any event, voir dire would 

reveal whether the potential jurors were likely to draw adverse inferences from the 

troopers’ presence, effectively guaranteeing that the defendants received a fair trial. See id. 

After jury selection was completed, the trial court gave its final ruling on Holbrook’s 

objection. Id. at 565. The court found that there was a valid security reason to have the 

troopers there and noted that 51 of 54 prospective jury members had stated that there was 

no “inference of guilt” associated with the trooper’s presence; the remaining three had not 

precisely answered the question. Id. Concluding that the presence of the troopers would 

not affect the defendants’ ability to receive a fair trial, the trial court overruled Holbrook’s 
25

objection, and the trial began. Three defendants were acquitted; Holbrook and two others 

were convicted. Id.

After the Supreme Court of Rhode Island affirmed the convictions, Holbrook sought 

habeas corpus review in federal court. Eventually, his habeas petition was considered by

the Supreme Court. The Court acknowledged the requirement under the Sixth Amendment 

that “one accused of a crime is entitled to have his guilt or innocence determined solely on 

the basis of the evidence introduced at trial, and not on grounds of official suspicion, 

indictment, continued custody, or other circumstances not adduced as proof at trial.” Id. at 

567 (internal quotation marks and citation omitted). However, not “every practice tending 

to single out the accused from everyone else in the courtroom must be struck down.” Id. 

The Court observed that “jurors are quite aware that the defendant appearing before them 

did not arrive there by choice or happenstance[.]” Id. Thus, the Court explained that it had 

“never tried, and could never hope, to eliminate from trial procedures every reminder that 

the State has chosen to marshal its resources against a defendant to punish him for allegedly 

criminal conduct.” Id. 

The Court then considered “whether the conspicuous, or at least noticeable, 

deployment of security personnel in a courtroom during trial is the sort of inherently

prejudicial practice that, like shackling, should be permitted only where justified by an 

essential state interest specific to each trial.” Id. at 568-69. The Court answered that 

question in the negative, explaining: 

The chief feature that distinguishes the use of identifiable security officers 

from courtroom practices we might find inherently prejudicial is the wider 

range of inferences that a juror might reasonably draw from the officers' 
26

presence. While shackling and prison clothes are unmistakable indications of 

the need to separate a defendant from the community at large, the presence 

of guards at a defendant’s trial need not be interpreted as a sign that he is 

particularly dangerous or culpable. Jurors may just as easily believe that the 

officers are there to guard against disruptions emanating from outside the 

courtroom or to ensure that tense courtroom exchanges do not erupt into 

violence. Indeed, it is entirely possible that jurors will not infer anything at 

all from the presence of the guards. If they are placed at some distance from 

the accused, security officers may well be perceived more as elements of an 

impressive drama than as reminders of the defendant’s special status. Our 

society has become inured to the presence of armed guards in most public 

places; they are doubtless taken for granted so long as their numbers or

weaponry do not suggest particular official concern or alarm.

Id. at 569. The Court concluded that “‘reason, principle, and common human experience’

counseled against a presumption that any use of identifiable security guards in the 

courtroom is inherently prejudicial.” Id. (quoting Williams, 425 U.S. at 504). Given the 

“variety of ways in which such guards can be deployed, ... a case-by-case approach is more 

appropriate.” Id. 

The Court then applied this case-specific approach to Holbrook’s case. In so doing, 

the Court made clear that, when considering a claim of inherent prejudice, the subjective 

state of mind of the jurors is not dispositive: “If a procedure employed by the State involves 

such a probability that prejudice will result that it is deemed inherently lacking in due 

process, little stock need be placed in jurors’ claims to the contrary.” Id. at 570 (internal 

quotation marks and citation omitted). This is the case because 

[e]ven though a practice may be inherently prejudicial, jurors will not 

necessarily be fully conscious of the effect it will have on their attitude

toward the accused. This will be especially true when jurors are questioned 

at the very beginning of proceedings; at that point, they can only speculate 

on how they will feel after being exposed to a practice daily over the course 

of a long trial. Whenever a courtroom arrangement is challenged as

inherently prejudicial, therefore, the question must be not whether jurors 
27

actually articulated a consciousness of some prejudicial effect, but rather 

whether “an unacceptable risk is presented of impermissible factors coming 

into play[.]”

Id. (quoting Williams, 425 U.S., at 505).

Turning to the objective consideration of the presence of the four troopers at 

Holbrook’s trial, the Court determined that this police presence was not inherently 

prejudicial to Holbrook’s right to a fair trial. While the Court did not “minimize the threat 

that a roomful of uniformed and armed policemen might pose to a defendant’s chances of 

receiving a fair trial,” the Court could not “find an unacceptable risk of prejudice in the 

spectacle of four such officers quietly sitting in the first row of a courtroom’s spectator 

section.” Id. at 570-71. The Court did not “believe that the use of the four troopers tended 

to brand respondent in [the jurors’] eyes ‘with an unmistakable mark of guilt.’” Id. at 571 

(quoting Williams, 425 U.S. at 518 (Brennan, J., dissenting)). Four troopers “are unlikely 

to have been taken as a sign of anything other than a normal official concern for the safety 

and order of the proceedings. Indeed, any juror who for some other reason believed 

defendants particularly dangerous might well have wondered why there were only four 

armed troopers for the six defendants.” Id. The Court noted, however, that even if there 

was a “slight degree of prejudice attributable to the troopers’ presence” at Holbrook’s trial, 

the State had a valid basis to employ this level of security, given the need to maintain

custody over the defendants, who had been denied bail as flight risks. Id. In this regard, the 

presence of the troopers behind the bar separating the defense table from the courtroom 
28

gallery differed from the wearing of prison garb at issue in Williams, which did not further 

any valid state interest. See id. at 571-72.35

Another context in which courts around the country have considered claims of 

inherent prejudice is messaging by spectators in the courtroom. Although there has been 

no Supreme Court case holding courtroom spectators’ conduct to have been inherently 

prejudicial to a defendant’s right to a fair trial, see Carey v. Musladin, 549 U.S. 70, 76-77 

(2006), some state courts have reached that conclusion based on the facts of the cases 

before them. For example, State v. Franklin, 327 S.E.2d 449 (W. Va. 1985), involved the 

trial of a defendant charged with driving under the influence of alcohol, resulting in death. 

At Franklin’s three-day trial, between 10 and 30 people, including a Sherriff in uniform,

35 In a vein similar to Holbrook, this Court in Bruce v. State, 318 Md. 706 (1990), 

considered whether enhanced security measures employed at a criminal trial were 

inherently prejudicial to the defendant’s right to a fair trial. There, the defendant was 

charged with multiple murders and other violent felonies. Id. at 711. There was “enhanced 

security” at Bruce’s trial, including armed guards around and on the roof of the courthouse, 

new metal detectors, and a deputy sheriff posted close to the defendant in the courtroom, 

as well as other uniformed and plainclothes officers elsewhere in the courtroom. See id. at 

716, 720-22. With respect to the security measures outside the courtroom, the Court held 

that Bruce “failed to establish any unacceptable risk of prejudice from the limited 

description, on the record,” of those protocols. See id. at 719-20. The Court concluded that 

“[t]he inferences to be drawn from the security measures outside the courtroom were not 

necessarily that the defendant was dangerous or untrustworthy, but could be that there was 

a potential for violence directed at the defendant or the witnesses in the case.” Id. at 719.

The Court then reviewed the in-courtroom security measures. Id. at 720-22. The 

Court distinguished a heightened security officer presence in the courtroom from a 

defendant being shackled or wearing a prison uniform or other measures that can “create 

the impression in the minds of the jury that the defendant is dangerous or untrustworthy.” 

Id. at 721 (internal quotation marks and citation omitted). The Court held that the 

courtroom security measures during Bruce’s trial were not unreasonable based on the 

record. Id. at 721-22.
29

prominently displayed Mothers Against Drunk Drivers (“MADD”) buttons as they sat 

directly in front of the jury in the courtroom. Id. at 454. Defense counsel repeatedly 

requested a mistrial or alternatively asked the court to order the removal of the MADD 

buttons, or the spectators wearing them, from the courtroom. Id. The court granted no relief. 

See id. 

On appeal, West Virginia’s high court noted the right of defendants and the public 

under its State Constitution to an “open public trial in every criminal case.” Id. at 455. This 

requires balancing “the right of public access to a criminal trial” with “the constitutional 

right of a defendant to a fair trial.” Id. The Court observed that “[a]n important element in 

this process is insuring that the jury is always insulated, at least to the best of the court’s 

ability, from every source of pressure or prejudice.” Id. The Court held that, in Franklin’s 

case, the trial court had not sufficiently protected the right to a fair trial:

In this case the spectators were clearly distinguishable from other visitors in 

the courtroom and, led by the sheriff, they constituted a formidable, albeit 

passive, influence on the jury. Indeed, the court’s cardinal failure in this case 

was to take no action whatever against a predominant group of ordinary

citizens who were tooth and nail opposed to any finding that the defendant 

was not guilty. This Court quite simply cannot state that the mere presence 

of the spectators wearing MADD buttons and the pressure and activities of 

the uniformed sheriff leading them did not do irreparable damage to the 

defendant’s right to a fair trial by an impartial jury.

Id.; see also Long v. State, 151 So. 3d 498, 501-02, 505 (Fla. Dist. Ct. App. 2014) 

(defendant convicted of molestation and sexual battery by a person in familial or custodial 

authority; on appeal, convictions reversed because the presence at trial of 11-12 men 

wearing jackets with the insignia “Bikers Against Child Abuse” was inherently 

prejudicial).
30

In other instances, courts have concluded that clothing or accessories worn by 

spectators and other conduct by non-courtroom staff that occurred inside or outside the 

courtroom did not rise to the level of inherent prejudice. For example, in People v. Ramirez, 

479 P.3d 797, 821 (Cal. 2021), cert. denied, 142 S. Ct. 784 (2022), the California Supreme 

Court rejected a claim of inherent prejudice, where approximately 18 uniformed officers 

appeared in the courtroom gallery on the final day of trial for a defendant charged with 

murdering a police officer. The Court concluded that there was a “wide range of reasonable 

inferences that the jury could have drawn from the officers’ presence,” including 

supporting the victim’s family, and/or “show[ing] camaraderie for one another.” Id. at 822. 

Although the Court stated that jurors “may be affected by the presence of uniformed police 

officers regardless of what they believe the officers’ intentions to be,” it concluded that the 

“risk of undue influence” from the showing of police in the courtroom was not 

“unacceptably high.” Id.; see also State v. Dillon, 788 N.W.2d 360, 363 (S.D. 2010)

(holding that a display of children’s shoes in a hallway that the jury walked through did 

not inherently prejudice the defendant accused of raping multiple children); Billings v. 

Polk, 441 F.3d 238, 246-47 (4th Cir. 2006) (holding that there was not inherent prejudice 

when an alternate jury member wore a t-shirt displaying the message “No Mercy – No 

Limits”).

We glean from the cases we have discussed above that claims of inherent prejudice 

are properly decided based on the unique facts and circumstances of each case. To prevail 

on a claim of inherent prejudice, the defendant must: (1) have objected to the challenged 

practice in the trial court, (2) demonstrate, based on the record of the proceeding in the trial 
31

court, that the challenged practice was observable by the jury; and (3) establish that the 

challenged practice created an unacceptable risk that impermissible factors would come 

into play in the jury’s determination of the case. If the defendant meets all of these 

requirements, the State may attempt to show that the challenged practice was necessary to 

further a compelling governmental interest. We now apply this case-by-case approach to 

this case and consider whether the bailiffs’ display of the thin blue line flag on their face 

masks was inherently prejudicial to Smith’s right to a fair trial.

B. The Bailiffs’ Display of the Thin Blue Line Flag on Their Face Masks Was 

Inherently Prejudicial. 

1. As a Political Message Bearing on the Criminal Justice System, the Thin Blue 

Line Has No Place in a Criminal Trial.

Courtrooms “are a stage for public discourse, a neutral forum for the resolution of 

civil and criminal matters. The unique setting that the courtroom provides is itself an 

important element in the constitutional conception of trial, contributing a dignity essential 

to the integrity of the trial process.” State v. Jaime, 233 P.3d 554, 559 (Wash. 2010) 

(internal quotation marks and citation omitted); see also Allen v. Commonwealth, 286 

S.W.3d 221, 230 n.27 (Ky. 2009) (“We must remind ourselves that a courtroom is 

committed to being a neutral environment – a holy shrine of impartiality in its resolutions 

of differences, and a place dedicated to fairness and equal treatment under law[.]”).

As the judicial officer presiding over the courtroom, the trial judge has the 

responsibility to ensure that the courtroom in every case is a venue where litigants can 

present evidence and juries render decisions based solely on that evidence. See Berner v. 

Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (observing that, within the “staid environment” 
32

of a courtroom, “the presiding judge is charged with the responsibility of maintaining 

proper order and decorum. In carrying out this responsibility, the judge must ensure that 

the courthouse is a place in which rational reflection and disinterested judgment will not 

be disrupted”) (cleaned up). “[I]t is beyond serious question that the proper discharge of 

these responsibilities includes the right (and, indeed, the duty) to limit, to the extent

practicable, the appearance of favoritism in judicial proceedings, and particularly, the 

appearance of political partiality.” Id.; see also In re Elrich S., 416 Md. 15, 38 (2010) (“A 

judge must, of course, have the ability to control his or her courtroom, to assure that judicial 

proceedings are conducted fairly, efficiently, and with dignity and decorum.”) (internal 

quotation marks and citation omitted).36

In a criminal case, the trial judge’s responsibility to maintain “a neutral, politically 

impartial environment[] dedicated to fairness and equal treatment of litigants,” Berner, 129 

36 The Court of Special Appeals held, and the parties before us agree, that a 

courtroom is not a public forum; therefore, the government may restrain speech in a 

courtroom, as long as such regulation is reasonable. See, e.g., Mezibov v. Allen, 411 F.3d 

712, 718 (6th Cir. 2005) (“The courtroom is a nonpublic forum, where the First 

Amendment rights of everyone (attorneys included) are at their constitutional nadir. In fact, 

the courtroom is unique even among nonpublic fora because within its confines we 

regularly countenance the application of even viewpoint-discriminatory restrictions on 

speech.”) (citation removed); Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (“A 

courthouse – and, especially, a courtroom – is a nonpublic forum.”); Minnesota Voters All. 

v. Mansky, 138 S. Ct. 1876, 1885 (2018) (“In a nonpublic forum ... the government has 

much more flexibility to craft rules limiting speech.... The government may reserve such 

a forum ‘for its intended purposes, communicative or otherwise, as long as the regulation 

on speech is reasonable and not an effort to suppress expression merely because public 

officials oppose the speaker’s view.’”) (citing Perry Ed. Assn. v. Perry Local Educators’

Assn., 460 U.S. 37, 46 (1983)). We agree. The State does not defend the circuit court’s 

ruling on the ground that the bailiffs had the right under the First Amendment to wear the 

thin blue line mask during Smith’s trial.
33

F.3d at 27, takes on Sixth Amendment significance. When political messages enter the 

courtroom during a criminal trial, so too does the risk that the jurors will not decide an 

accused’s case based solely on the evidence. It is the trial judge’s job to keep political and 

other inappropriate messages from entering the courtroom to the extent possible, and 

thereby ensure that there is not an unacceptable risk of impermissible factors coming into

play. See Holbrook, 475 U.S. at 571-72.

In a criminal trial, in which the State is bringing to bear its law enforcement 

resources against the accused, an extraneous message of support for law enforcement is 

improper. It injects a pro-law enforcement variable into what should be a neutral 

environment, potentially adding weight to the prosecution’s side of the scales based on 

matters that are not in evidence. Certainly, not every pro-law enforcement message in a 

courtroom will rise to the level of inherent prejudice. One or two people wearing Fraternal 

Order of Police baseball caps as they watch a criminal trial from the gallery will 

presumably cause less concern than 50 spectators simultaneously displaying a recognizably 

pro-law enforcement message. At some point along the continuum of possible pro-law 

enforcement messaging in a courtroom, the circumstances surrounding a particular display 

will cause it to cross the line from inappropriate to inherently prejudicial.37

37 As discussed above, the State may justify a courtroom practice that conveys a 

prejudicial message by demonstrating that the challenged practice was necessary to further 

a compelling governmental interest. See Holbrook, 475 U.S. at 568-69; Bruce, 318 Md. at 

721. The State has not attempted to defend the circuit court’s ruling on the ground that the 

display of the thin blue line flag mask furthered an essential state interest. Like everyone 

else in the courtroom, the bailiffs were required to wear face masks in light of the 

COVID-19 emergency. But they could have done their part to lessen the risk of viral 
34

The State argues that the display of the thin blue line flag at Smith’s trial did not 

cross that line because it did not convey one clear, unmistakable meaning to the jurors. 

Although the State is correct that the thin blue line can mean different things to different 

people, we disagree with the State’s contention that this undermines Smith’s claim of 

inherent prejudice. None of the meanings reasonably associated with the thin blue line had 

any place at Smith’s criminal trial.38

As discussed above, the thin blue line, among other things, can be viewed as 

expressing general support for law enforcement, or expressing the belief that police stand 

between civilized society and criminals, or expressing support for white supremacy. 

Although these messages range from benign to malevolent, none of them should be 

conveyed to the jury in a criminal trial. All of them risk suggesting to the jury that they 

should side with law enforcement. Thus, even if we assume that the jurors gave the most 

benign meaning possible to the bailiffs’ display of the thin blue line – that the sheriff’s 

deputies were expressing general support for, and pride in, their chosen profession of law 

transmission just as effectively by wearing a mask that did not display the thin blue line 

flag.

38 A police officer testified as a witness for the State at Smith’s trial, but that 

circumstance is not essential to our analysis. An extraneous pro-law enforcement message 

would also be inappropriate at a criminal trial that did not include any law enforcement 

witnesses. Similarly, it is immaterial that the defense did not raise any issues involving 

alleged police misconduct. The credibility of a particular police officer or the validity of a 

particular police action need not be called into question in order for a court agent’s display 

of a pro-law enforcement message to carry an unacceptable risk that it will influence the 

jurors.
35

enforcement – it nevertheless was an inappropriate message to convey to the jury in a 

criminal trial.39

The question we therefore must decide is: was the display of the thin blue line 

symbol at Smith’s trial merely inappropriate, or did it rise to the level of inherently 

prejudicial to Smith’s right to a fair trial? We conclude that the display of the thin blue line 

flag was inherently prejudicial because it was the bailiffs who conveyed the message, and 

because the thin blue line symbol was particularly evocative in the immediate aftermath of 

the protests and counter-protests that occurred in 2020.40

39 In this regard, this case is distinguishable from Holbrook, where some of the 

possible messages the jurors could have drawn from the presence of the officers behind the 

defendant would not have suggested that the court viewed the defendant as dangerous and 

that they should therefore side with law enforcement and against Holbrook when delivering 

their verdict. Here, the most benign of the possible messages that the jurors could have 

gleaned from the display of the thin blue line flag was pro-law enforcement. 

40 The State argues that, in order to establish inherent prejudice, Smith must show 

that “all the jurors ... recognized the symbol and [drew] some type of meaning from it.”

The State cites no authority for this proposition, and we discern none in the cases we have 

reviewed concerning inherent prejudice. Given the nature of the inherent prejudice inquiry, 

we need not determine that all the jurors, or any particular percentage of the jurors, 

recognized the thin blue line symbol and attributed meaning to it. In analyzing inherent 

prejudice, a court assesses the risk of prejudice associated with a courtroom practice or 

message, not how a particular group of jurors actually reacted to the practice or message. 

As discussed above, by the time of the trial, the thin blue line was widely recognized in the 

United States as a pro-law enforcement symbol, and indeed was viewed as controversial 

and polarizing. We are not dealing here with a symbol that was invented shortly before 

trial and/or was not previously disseminated widely. To the extent Judge Gould is of the 

view that the thin blue line symbol may not have been widely recognized in the United 

States by October 2020 as controversial, see Dissent Op. at 1 n.1, we must respectfully 

disagree. Nor do we agree with Judge Gould’s view (Dissent Op. at 1-2) that Smith needed 

to produce evidence “as to how the citizens of Kent County understood what the Sheriff 

was trying to convey with the use of such a mask.” There was no information embargo in 

place in Kent County in the years leading up to Smith’s trial in October 2020 that would 

have led its citizens to fail to recognize the thin blue line flag as a pro-law enforcement 
36

2. Because the Bailiff Is an Agent of the Court, the Bailiffs’ Display of the Thin 

Blue Line Flag Was Particularly Problematic.

Smith argues that the bailiffs’ display of the thin blue line symbol heightened the

potential for prejudice “because it gave the impression that the court approved of its 

meanings.” We agree.

As the Supreme Court observed in Parker v. Gladden, 385 U.S. 363, 365 (1966), 

“the official character of the bailiff – as an officer of the court as well as the State – beyond 

question carries great weight with a jury[.]” Not only is the bailiff an “officer of the court,” 

a term often associated with the attorneys who appear before it; the bailiff is an agent of 

the court. See Turpin v. Todd, 519 S.E.2d 678, 682 (Ga. 1999) (“The very nature of the 

bailiff’s position serves to heighten the prejudicial potential a bailiff’s communication may 

have on the jury.”); Lewis v. Pearson, 556 S.W.2d 661, 664 (Ark. 1977) (“Because of the 

close relationship between the bailiff and the court itself any action on the part of the bailiff 

concerning the jury should be subject to close scrutiny by the court.”); Reynolds v. Allied 

Emergency Services, PC, 193 So. 3d 625, 631 (Miss. App. 2016) (finding prejudice in civil 

case where erroneous jury instructions were delivered to the jury by “the bailiff – an 

extension of the court and trial judge – ... which carrie[d] with it the imprimatur of 

authority”) (internal quotation marks and citation omitted); State v. Gregory, 147 P.3d 

1201, 1247 (Wash. 2006) (en banc) (“[I]n the eyes of the jury, the bailiff is an agent of the 

symbol. In short, we are confident that the “thin blue line” was sufficiently well known as 

a pro-law enforcement symbol throughout the United States – including Kent County – by 

the time of Smith’s trial to create the type of risk that supports a finding of inherent 

prejudice.
37

trial judge.”), overruled on other grounds by State v. W.R., Jr., 336 P.3d 1134 (2014); State 

v. Kelley, 451 S.E.2d 425, 430 (W. Va. App. 1994) (“Clearly, the bailiff, in his capacity as 

attendant to the judge, is an extension of the court.”). Thus, any political message that 

bailiffs convey to the jury – verbally or non-verbally – in the course of performing their 

duties may well be imputed by the jurors to the court.41 For this reason, the display of the 

thin blue line symbol by at least two bailiffs42 carried a much greater potential for prejudice 

than, for example, if two spectators seated separately in the gallery of the courtroom had 

worn the same face masks.43 See Brief of Amici Curiae The Public Justice Center, et al. 8-

9 (citing Hon. Arthur Gilbert, Juror Perceptions: How They Judge the Judges, 17 Judges 

J. 14, 16-18 (1978), which discussed a survey of thousands of jurors, finding that “[j]udges 

are the ones who most directly affect the way in which jurors perceive th[e] system,” and 

41 In this case, the symbol that the court agents conveyed was the thin blue line flag. 

We would reach the same conclusion concerning a court agent’s display of any other 

symbol that creates an unacceptable risk of the jury deciding a criminal case based on 

impermissible factors. 

42 The record reflects that at least two Sheriff’s deputies served as bailiffs for at least 

part of Smith’s trial. Given that the Sheriff of Kent County at the time was requiring all his 

deputies to wear the thin blue line flag face mask, we believe the fair inference to draw is 

that all deputies who served as bailiffs at Smith’s trial displayed the thin blue line symbol 

while they were in the presence of the jury. The State has acknowledged that there were 

multiple deputies in the courthouse during Smith’s trial, and that they all displayed the thin 

blue line on their face masks. 

43 This is not to say that, if a trial judge notices a spectator wearing an article of 

clothing that the judge believes may carry a risk of prejudice to a defendant receiving a fair 

trial, the judge is powerless to take appropriate action.
38

cautioning that “court personnel” are “a direct reflection on you the judge, and 

consequently a reflection on the judiciary in general”).44

The State downplays the significance of the bailiff’s role as the court’s agent, 

emphasizing that the bailiff “is not identical to the court.” For example, the State observes, 

a “bailiff can wear a police uniform without impeding the fairness of court proceedings or 

signaling a ‘pro-prosecution’ message. The same could not be said for a judge.” (Footnote 

omitted.) Relatedly, the State contends that there is no material distinction between a police 

uniform and a thin blue line flag face mask. That is, if a bailiff can wear the uniform in the 

courtroom without running afoul of the Sixth Amendment, it should follow that the thin 

blue line symbol is permissible as well. 

We are confident that jurors view wearing a uniform as normal for a security officer 

and think nothing of it. What is not normal is adding a controversial political symbol to an 

officer’s clothing or accessories. The same juror who would give no thought to seeing a 

44 In his Dissenting Opinion, Judge Gould seems to suggest that this Court can, by 

rule, dictate that Sheriff’s deputies – when acting as bailiffs – not display political messages 

on their persons, but that a trial judge may not do so. See Dissent Op. at 1, 8. As the judicial 

officer responsible for ensuring that a defendant receives a fair trial and for maintaining 

proper decorum in the courtroom generally, a trial judge has the authority to direct a bailiff 

not to display a political message in court, even if the bailiff is doing so at the direction of 

a sheriff. Cf. Opinion Letter to the Honorable Paul H. Weinstein, 78 Md. Op. Atty. Gen. 

103 (Md. A.G.), 1993 WL 340439, at *3 (Mar. 15, 1993) (Attorney General of Maryland 

opining that County Administrative Judge may require the State’s Attorney and the State’s 

Attorney’s staff to comply with courthouse security procedures, despite the State’s 

Attorney’s status as a constitutionally established office separate from the Judiciary).
39

bailiff in uniform might well notice and attribute meaning to a bailiff wearing a political 

symbol on their clothing or elsewhere on their person.45

The State also contends that the bailiffs did not intend to comment on Smith’s case 

through their donning of the face masks. Assuming that is true, it is of no moment. We are 

not concerned here with the bailiffs’ subjective intent in conveying a particular message, 

or for that matter, with the Sheriff’s intent in requiring his deputies to wear the masks,46

but rather with the potential effects of the jurors’ receipt of any of the improper messages 

presented by the thin blue line symbolism as displayed on the bailiffs’ masks. As discussed, 

none of the messages conveyed by the thin blue line flag mask had any place in a criminal 

courtroom.

47

45 We disagree with Judge Gould’s assessment that, because the Sheriff of Kent 

County is an elected official, the jurors would not view his deputies as agents of the court 

while they served as bailiffs. See Dissent Op. at 5. It is clear from the record that the jury 

understood from the court’s instructions that the bailiffs were to be the intermediaries 

between themselves and the court. The court told the jurors that, if they had any questions 

or concerns during the course of the trial, they should notify the bailiffs. It was equally 

clear to the jurors that the bailiffs were following the instructions of the trial court. We 

have no doubt that the jurors understood the bailiffs to be the court’s agents. And, indeed, 

the deputies were the court’s agents while performing their duties as bailiffs. 

46 We pause to note that we in no way ascribe any nefarious motive to the Sheriff in 

directing his deputies to wear the thin blue line flag mask. In addition, nothing in this 

opinion should be interpreted as indicating that we fail to appreciate the immense 

challenges that the trial court faced in October 2020 when it presided over Smith’s trial.

47 During oral argument, Smith’s attorney indicated that a trial court may consider 

the State’s objection to the display of a symbol that threatens to undermine the neutrality 

of the courtroom and, consequently, the fairness of the proceedings. We agree. 
40

3. The Display of the Thin Blue Line Flag in a Criminal Trial Was Particularly 

Problematic in Late 2020. 

The risk of impermissible factors coming into play at Smith’s trial was heightened 

because of the moment in time when the trial occurred. As discussed above, Smith’s trial 

went forward in the immediate aftermath of George Floyd’s murder, large protests in 

support of BLM, and pro-police counter-protests. Some of these protests led to violence.48

With movements to “defund the police” in full swing, many law enforcement officers felt

that they themselves and their profession were under attack.49 Additionally, a survey of 

nearly 200 departments by the Police Executive Research Forum showed a 45% increase 

in the retirement rate and 18% increase in resignations during the 12-month period between 

April 2020 and March 2021, when compared to the same period a year earlier.

50

We cannot ignore the “contemporary climate” when evaluating a claim of inherent 

prejudice. In this regard, Wiggins v. State, 315 Md. 232 (1989), abrogated on other grounds 

48 See Kim and Wilson, supra note 10 (reporting on violent clashes between BLM 

and Blue Lives Matter protestors in New York City); Derek Bryson Taylor, George Floyd 

Protests: A Timeline, N.Y. TIMES (Nov. 5, 2021), available at https://perma.cc/2XZZ-3L5T

(noting that “at least six people have been killed in violence connected to the protests that 

started after Mr. Floyd died in police custody”).

49 Neil MacFarquhar, Why Police Have Been Quitting in Droves in the Last Year, 

N.Y. TIMES (June 24, 2021), available at https://perma.cc/KM5Q-RVU3; Russonello, 

supra note 8. Morale in some police departments in the months following Floyd’s killing 

was reported to be low. See, e.g., Benjamin Fearnow, Several Minneapolis Police Officers 

Quit Amid Lack of Support, Low Morale Following George Floyd’s Death, NEWSWEEK

(June 14, 2020), available at https://perma.cc/7PP6-KCAY; Eric Westervelt, Cops Say Low 

Morale And Department Scrutiny Are Driving Them Away From The Job, NPR (June 24, 

2021), available at https://perma.cc/6GU7-HL7P.

50 Survey on Police Workforce Trends, Police Executive Research Forum (June 11, 

2021), available at https://perma.cc/7EU6-7DPQ.
41

by Horton v. California, 496 U.S. 128 (1990), is instructive. Wiggins went to trial in 1987, 

near the height of the AIDS epidemic. The State alleged that Wiggins robbed and murdered 

a would-be lover whom he had met that same evening. 315 Md. at 235-36. In voir dire, the 

trial judge told prospective jurors that the case had “touches of homosexuality in it,” and 

asked if that would prevent anyone from deciding the case fairly and impartially. Id. at 241. 

The jury heard evidence indicating that Wiggins was gay. After the victim was introduced 

to Wiggins at a bar, the victim, Wiggins, and the person who introduced them went to 

Wiggins’s residence to engage in a sexual encounter. See id. at 235. Wiggins attacked and 

eventually murdered the victim. Id. at 235-36. 

When Wiggins’s case came to trial in November 1987, guards escorted Wiggins 

into the courtroom wearing rubber gloves. The jury was present and, thus, would have been 

able to observe that the guards were wearing gloves as they walked next to Wiggins. See 

id. at 236. Defense counsel objected to this procedure. Id. On the second day of trial, 

Wiggins was brought into the courtroom before the jury was seated, but the guards

continued to wear rubber gloves after they took their position immediately behind Wiggins.

Id. at 237. Defense counsel again objected, arguing that allowing the jurors to see the 

gloved guards near Wiggins could lead the jurors to draw inferences about Wiggins, which 

would have “adverse effects” on Wiggins’s rights. Id. at 237-38. The trial court denied 

Wiggins’s motion for a mistral, and Wiggins was convicted. Id. at 238. At a hearing on 

Wiggins’s motion for a new trial, his counsel argued that “Mr. Wiggins being paraded back 

and forth in front of the jury with the deputies wearing gloves, I believe that procedure in 
42

and of itself was so inherently prejudicial as to deprive him of a fair trial in this case.” Id. 

The trial court denied the motion for a new trial. Id.

Citing Estelle v. Williams, id. at 239-40, this Court reversed:

We believe that the jury, viewing the officers guarding Wiggins, would not 

be without curiosity as to the guards’ protective attire. We think that it is not 

improbable that the jury would assume, in light of the widespread and 

continuous publicity devoted to AIDS, that Wiggins was infected with the 

disease. We are of the opinion that the wearing of the gloves, without a sound 

basis shown for doing so, undermined the fairness of the fact-finding process 

and diluted the principle that guilt is to be established by probative evidence 

beyond a reasonable doubt.

Id. at 244. The Court reached this conclusion, in large part, due to the climate of fear

surrounding AIDS that was then gripping the country:

It is not a big step in logical inference, considering the contemporary climate, 

from seeing the guards protected in their contact with the defendant to the 

thought that he might have AIDS. The error was not cured by the voir dire 

question. It is a far cry from not being prejudiced because the case “has 

touches of homosexuality in it,” and not being prejudiced because the 

defendant may have AIDS. Inquiry with respect to the latter was not made.[51]

51 In this case, the trial court asked voir dire questions designed to reveal bias in 

favor of law enforcement. The State argues that this undermines Smith’s inherent prejudice 

claim to the extent it is based on the jurors having received an extraneous pro-law 

enforcement message. We disagree. It is not the case that, having screened jurors for 

pro-law enforcement bias, the court’s decision to conduct the trial with court agents 

displaying a pro-law enforcement message is insulated from constitutional scrutiny. As the 

Supreme Court recognized almost 40 years ago in Holbrook v. Flynn, “[e]ven though a 

practice may be inherently prejudicial, jurors will not necessarily be fully conscious of the 

effect it will have on their attitude toward the accused.” 475 U.S. at 570. “Whenever a 

courtroom arrangement is challenged as inherently prejudicial, therefore, the question must 

be not whether jurors actually articulated a consciousness of some prejudicial effect, but 

rather whether an unacceptable risk is presented of impermissible factors coming into 

play.” Id. (internal quotation marks and citation omitted); see also Cecelia Trenticosta & 

William C. Collins, Death and Dixie: How the Courthouse Confederate Flag Influences 

Capital Cases in Louisiana, 27 HARV. J. RACE & ETHNIC JUST. 125, 150 (2011) 

(advocating that, similar to cases like Parker v. Gladden, which “address[] the impact of 

perceived authority on the conscious decisionmaking processes, ... [d]isplays that impact 
43

The reason why the guards wore gloves in this particular case was left to the 

speculation of the jury. Regardless of the credence the jury gave the 

testimony of the witnesses, or how it weighed the evidence, it is not farfetched that the jury, observing the gloves, thought it better, in any event, that 

Wiggins be withdrawn from public circulation and confined in an 

institution[.]

Id. at 244-45.

In this case, as in Wiggins, the “contemporary climate” is important to our decision. 

In October of 2020, the country was on edge, having just lived through Floyd’s murder and 

the unrest that followed. The thin blue line symbol, already controversial, had become even 

more polarizing to many.

52 Calls to “defund the police” were being made across the 

nation.53 Against this backdrop, the bailiffs’ display of the thin blue line flag on their face 

masks in the courtroom during Smith’s trial created an unacceptable risk that the jurors 

would believe that the court was siding with law enforcement in this moment of political 

upheaval, and that they would necessarily have that belief in their minds as they decided 

whether to side with law enforcement in this particular case.

decision-making through subconscious channels should likewise be treated as inherently 

prejudicial where their effect is heightened by perception of authoritative status”).

52 See, e.g., Joe DiFazio, Dividing line: thin blue line flag source of division on South 

Shore, THE PATRIOT LEDGER (Aug. 21, 2020), available at https://perma.cc/FBC3-5Y42; 

Rita Oceguera, In Mount Prospect, a village divided over the ‘thin blue line,’ INJUSTICE 

WATCH (Sept. 2, 2021), available at https://perma.cc/A3HY-4DS6; Lauren Frias, The 

‘Thin Blue Line’: How a simple phrase became a controversial symbol of the police, 

INSIDER (Feb. 24, 2021), available at https://perma.cc/3VRU-3KRJ.

53 Dionne Searcey, What Would Efforts to Defund or Disband Police Departments 

Really Mean?, N.Y. TIMES (June 8, 2020), available at https://perma.cc/DS52-B2B2; Sarah 

Holder, The Cities Taking Up Calls to Defund the Police, BLOOMBERG (June 9, 2020), 

available at https://perma.cc/8T74-TLW9.
44

4. The Record Is Sufficient to Establish Inherent Prejudice in This Case.

The State argues that the record is insufficient to support a finding of inherent 

prejudice. In particular, the State cites to the Court of Special Appeals’ observation that

“there is nothing in the record about ... the specific location where the bailiff was 

positioned in the courtroom[.]” Smith, 253 Md. App. at 44 n.7. According to the State, 

“[t]his was a question of paramount importance given that the bailiff would not generally 

be ‘interacting’ with the jury during the bulk of the trial but simply standing or sitting in 

place.”

In our view, the record is sufficient to find inherent prejudice in this case. True, 

defense counsel could have taken steps to document the size of the courtroom, measure the 

distance between the position(s) where the bailiff stood during the presentation of evidence 

and the jury box, etc. However, we are satisfied that the jury had ample opportunity to view 

the thin blue line flag on the faces of the bailiffs throughout the two-day trial. The trial 

judge was vigilant about ensuring that all present in the courtroom wore face masks. Thus, 

we can safely infer that the bailiffs wore their thin blue line flag masks throughout the trial. 

Moreover, the trial court directed the jurors’ attention to the bailiff(s) many times during 

the trial. Among other things, after a juror was pronounced “acceptable” by both parties 

during jury selection, the juror was told to “follow the bailiff right there.” On several 

occasions, that direction was coupled with a request that the jurors put their own masks

back in place. The trial court’s explicit focus on masks in the courtroom was commendable

in light of the public health emergency, but it also increased the likelihood that the jurors 

would pay attention to the masks worn by others in the courtroom. 
45

The trial court also referenced the bailiffs on multiple occasions after the jurors were 

seated. In its preliminary instructions, the court told the jurors that the bailiff would collect 

their notepads from them. At one point during the trial, the bailiff delivered a message from 

the alternate juror to the court that he was having difficulty hearing the proceedings. During 

jury instructions, the court informed the jury that if they had any questions they should 

“have your forelady knock on the door and the bailiff will have a form that he will hand to 

the forelady so you can fill out with the question that you have and that’ll be presented 

back to the bailiff, then delivered to the Court.” The court also told the jury where the two 

bailiffs would be positioned while the jury was deliberating. And, immediately prior to 

deliberating, the jurors saw the bailiffs being sworn.

The State points out that everyone was wearing a face mask in the courtroom and 

posits that a more detailed record is necessary to know whether the jurors were more likely 

to notice and pay attention to the particular masks that the bailiffs wore, as opposed to the 

masks that the jurors saw on each other and on witnesses and others in the courtroom. We 

disagree. What the authority figures in the courtroom chose to display on their face masks 

was likely to be of particular interest to the jurors. Those authority figures were the judge 

and the bailiffs. Undoubtedly, one of the reasons the Sheriff of Kent County decided to 

require his deputies to wear this particular mask was because he expected that members of 
46

the public would take notice. We have every reason to believe that the jury in Smith’s trial 

did just that.54

V

Conclusion

The trial judge is responsible for maintaining the courtroom as a neutral venue for 

the fair resolution of disputes. To that end, the court must strive to ensure neither side of 

the scale receives extra weight from the display of a political message (or any other kind 

of extraneous message) in the courtroom. In a criminal case, a defendant’s Sixth 

Amendment right to a fair trial requires that the jury decide the defendant’s guilt based 

only on the evidence before it. When a court agent displays a political message during a 

criminal trial, the fairness of the process isjeopardized. If the display of the message creates 

an unacceptable risk that the jury will decide the case based on impermissible factors, a 

reviewing court will conclude that the display was inherently prejudicial to the defendant’s 

right to a fair trial. In this case, the bailiffs’ display of the thin blue line flag on their face 

masks inherently prejudiced Smith’s right to a fair trial. We therefore reverse the judgment 

54 We note that several months after Smith’s trial concluded, the Chief Judge of the 

District Court of Maryland, the Honorable John P. Morrissey, instructed District Court 

judges and staff not to wear face masks or other apparel that display the “thin blue line.” 

Chief Judge Morrissey stated that “[e]mployees of the District Court wearing any clothing 

item or apparel which promotes or displays a logo, sticker, pin, patch, slogan, or sign which 

may be perceived as showing bias or favoritism to a particular group of people could 

undermine the District Court’s mission of fair, efficient, and effective justice for all and 

call into question the Judiciary’s obligation to remain impartial and unbiased.” Cameron 

Jenkins, Maryland District Court chief judge bans ‘thin blue line’ masks over bias 

concerns,” THE HILL (May 6, 2021), available at https://perma.cc/3ZV3-BPYE.
47

of the Court of Special Appeals and direct that the case be remanded to the circuit court for 

a new trial.

JUDGMENT OF THE COURT OF 

SPECIAL APPEALS REVERSED; CASE 

REMANDED TO THAT COURT WITH 

THE INSTRUCTION TO FURTHER 

REMAND THE CASE TO THE CIRCUIT 

COURT FOR KENT COUNTY FOR A NEW 

TRIAL; COSTS IN THIS COURT AND THE 

COURT OF SPECIAL APPEALS TO BE 

PAID BY KENT COUNTY.
Circuit Court for Kent County

Case No. C-14-CR-19-000193

Argued: June 1, 2022

IN THE COURT OF APPEALS

OF MARYLAND

No. 61

September Term, 2021

EVERETT SMITH

v.

STATE OF MARYLAND

Watts,

Hotten,

Booth,

Biran,

Gould,

Eaves,

Getty, Joseph M.

(Senior Judge, Specially Assigned),

JJ.

Dissenting Opinion by Gould, J.,

which Getty, C.J. joins

Filed: August 26, 2022
Although I agree with the Majority that the courtroom should be a neutral venue 

devoid of political or other ideological messages, and I would support amending the 

Maryland Rules to ensure that the circumstance presented here never repeats itself, I 

nevertheless respectfully dissent. 

Under the guise of a de novo review of a question of law, the Majority takes the 

liberty of making factual findings as to the various meanings associated with the thin blue 

line face mask and the controversy surrounding its use. In doing so, the Majority relies on 

news articles and commentary from the New York Times, L.A. Times, Politico, and other 

sources from around the country, some of which were published after Mr. Smith’s trial. 

Noticeably missing from the Majority’s analysis is any reference to news coverage in Kent 

County, or any evidence for that matter, regarding how the thin blue line mask was

perceived there. At any rate, regardless of when these articles were published, the more 

significant problem I have with the Majority’s reliance on these materials is that none of 

them were put before the trial court.

1

 

In fact, no evidence was put before the trial court. There was no testimony from the 

Sheriff, the Sheriff’s deputy, or anyone else about what, if anything, the Sheriff intended 

1 Even if these materials had been put before the trial court, I don’t agree that they 

establish that, as argued by the Majority, “the thin blue line was widely recognized in the 

United States as a pro-law enforcement symbol, and indeed was viewed as controversial 

and polarizing.” Smith v. State, No. 61, Sept. Term 2021, op. at 35, n.40 (Md. Aug. 26, 

2022). With due respect to the hardworking journalists and commentators at the New York 

Times and elsewhere, their reporting that something is widely recognized or widely 

controversial does not make it so. To be clear, I am not saying that the thin blue line flag 

was or was not controversial or widely recognized—I am simply saying that the record in 

this case doesn’t support either conclusion.
2

to convey by ordering his deputies to wear the thin blue line face mask. There was no 

evidence as to how the citizens of Kent County understood what the Sheriff was trying to 

convey with the use of such a mask. And there was no evidence before the trial court 

showing how the thin blue line flag was perceived elsewhere in this country. Meanwhile, 

the trial court was navigating uncharted territory with the re-opening of Maryland trial 

courts and implementing the various masking, social distancing, and other safety measures 

that complicated almost every aspect of the courts’ proceedings. Framing the issue as a 

question of law does not relieve us of our obligation to conduct our review based on the 

contents of the record. 

There is a proper way to put such issues before a trial court, and Mr. Smith did not 

follow it. The correct way is set forth in Maryland Rule 4-252, which governs motions 

practice in the circuit court. Relevant here, subsection (d) states that a motion or request 

“capable of determination before trial without trial of the general issue, shall be raised by 

motion filed at any time before trial.” Also relevant is subsection (e), which states that “[a] 

motion filed pursuant to this Rule shall be in writing unless the court otherwise directs, 

shall state the grounds upon which it is made, and shall set forth the relief sought. . . . Every 

motion shall contain or be accompanied by a statement of points and citation of 

authorities.” 

This Rule was designed to provide both the court and opposing party with the time 

and information necessary to address the issues raised by the motion. Mr. Smith 

acknowledged addressing the issue with unnamed individuals on behalf of the State and 

the court in the preceding week, yet failed to comply with these timing and writing 
3

requirements. Mr. Smith also failed to support his motion with any evidence, and instead 

relied solely on the ipse dixit of his counsel. I am not calling a technical foot fault here. In 

the absence of any evidence in the record establishing any risk, let alone an unacceptable

risk, of impermissible factors coming into play, I fail to see how this Court can hold that 

the trial court erred as a matter of law in declining to order the deputy Sheriff to change his 

face mask. 

What Mr. Smith was asking the court to do—order the deputy Sheriff to defy the 

order of his superior officer by wearing a different face mask—was no small thing. As we 

stated in Soper v. Montgomery Cnty., 294 Md. 331, 337 (1982):

Article IV, § 44 of the Maryland Constitution provides that there shall 

be an elected sheriff in each county and Baltimore City who shall “exercise 

such powers and perform such duties as now are or may hereafter be fixed 

by law.” Thus, sheriffs are constitutional officers whose powers and duties 

are not expressly enumerated in the Constitution. Rather, those powers and 

duties are prescribed by the common law as modified by the Acts of the 

Legislature. Accordingly, sheriffs retain their common law powers and duties 

until deprived of them by the Legislature. 

(citations omitted).

The Sheriff’s office has a common-law duty of attending and providing courtroom 

security. See Prince George’s Cnty. v. Aluisi, 354 Md. 422, 434 (1999). Although

“courtroom security is an ultimate determination that rests entirely and solely in the 

discretion of the trial judge[,]” Cooley v. State, 385 Md. 165, 184 (2005), the Sheriff 

undoubtedly has the authority to determine the uniforms worn by its deputies and to 

mandate compliance therewith. The trial court, therefore, was appropriately reluctant to 

exert its authority to countermand a lawful order concerning a matter squarely within the 
4

Sheriff’s purview. Because Mr. Smith failed to meet his burden of establishing an 

entitlement to such relief, the trial court properly denied his motion. 

The Majority states that the most benign messages that could have been intended by 

the thin blue line face masks were to convey general support for law enforcement or pride 

in their chosen profession of law enforcement. Aside from the lack of any evidence in the 

record from which such a conclusion may be drawn,2the Majority does not adequately 

explain why such messages translate to an unacceptable risk that impermissible factors

would come into play in the jury’s decision. 

As noted above, the Sheriff is an elected official. In fact, the Sheriff is elected by 

registered voters among the same Kent County citizens from which the jury was drawn. 

See Md. Ann. Cts. & Jud. Proc. (“CJP”) § 8-103 (2006, 2020 Repl. Vol.).3 Thus, the jurors 

2

Indeed, one of the articles cited by the Majority—Rita Oceguera, In Mount 

Prospect, a Village Divided Over the ‘Thin Blue Line,’ INJUSTICE WATCH (Sept. 2, 2021), 

available at https://perma.cc/A3HY-4DS6—quotes a news release from a police 

department in a town north of Chicago as explaining that “the thin blue lined flag honors 

the law enforcement officers who have made the ultimate sacrifice for their communities.” 

How do we know that’s not what the Sheriff of Kent County intended to convey? The fact 

is, we have no idea what the Sheriff intended to convey with the thin blue line mask or how 

it was received by the citizens of Kent County. 

3 CJP § 8-103 provides:

Age, citizenship, and residency requirements

(a) Notwithstanding § 8-102 of this subtitle, an individual qualifies for jury 

service for a county only if the individual:

(1) Is an adult as of the day selected as a prospective juror;

(2) Is a citizen of the United States; and

(3) Resides in the county as of the day sworn as a juror.

Disqualifying factors
5

knew that the Sheriff was an officer separate and distinct from the circuit court, State v. 

Chaney, 375 Md. 168, 181 (2003) (quotation omitted) (“[j]udges, lawyers and laymen alike 

are all presumed to know the law regardless of conscious knowledge or lack thereof”), and 

therefore would not view the deputy Sheriff as an agent of the court with authority to speak 

on its behalf.

4

 

Moreover, in addition to being screened during voir dire for bias in favor of law 

enforcement, the jurors were expressly and repeatedly instructed by the court to base their 

(b) Notwithstanding subsection (a) of this section and subject to the federal 

Americans with Disabilities Act, an individual is not qualified for jury 

service if the individual:

(1) Cannot comprehend spoken English or speak English;

(2) Cannot comprehend written English, read English, or write 

English proficiently enough to complete a juror qualification form 

satisfactorily;

(3) Has a disability that, as documented by a health care provider's 

certification, prevents the individual from providing satisfactory jury 

service;

(4) Has been convicted, in a federal or State court of record, of a crime 

punishable by imprisonment exceeding 1 year and received a sentence 

of imprisonment for more than 1 year; or

(5) Has a charge pending, in a federal or State court of record, for a 

crime punishable by imprisonment exceeding 1 year.

Pardon of convicted individuals

(c) An individual qualifies for jury service notwithstanding a disqualifying 

conviction under subsection (b)(4) of this section if the individual is 

pardoned.

(Footnote omitted).

4 The Majority does not cite to any Maryland statute or precedent to support its 

assertion that the deputy Sheriff is an agent of the court.
6

decision solely on the evidence admitted in the trial and that they should not read anything 

into any of the court’s rulings. Here’s an example:

After the closing arguments, you will begin your deliberations. You 

must decide this case based on the evidence produced at trial. Nothing the 

Court may say or do during the course of trial intended to indicate or should 

be taken by you as indicating what your verdict should be. 

During any break or recess, including any overnight break, you must 

not conduct any research or investigation about the case or any of the 

individuals involved in it. You may not consult with any dictionaries, 

reference materials, search the internet, websites, blogs or consult other 

sources for information about the case. You must not visit any place 

mentioned in this case. You must discuss the case fairly and impartially 

based only on the information presented together to you and your fellow 

jurors in the courtroom. Until you retire to deliberate and decide the case, 

you must not discuss this case with anyone else. You should not even discuss 

the case with your fellow jurors. I know that this request seems odd as this 

case is the only reason that you all have been brought together. But the reason 

that I'm asking you not to discuss the case until you begin your deliberations 

is that evidence comes to you in little bits and pieces throughout the course 

of the trial. If you start to talk about the case too soon, you may start to form 

opinions before you have heard all of the evidence and the instructions on 

the law and the arguments of the attorneys. In order to remain fair and 

impartial, you should not discuss and decide this case until you begin your 

deliberations.

At bottom, even if the jurors saw the deputy’s mask and thought to themselves: 

“now there’s a guy who is proud to be a law enforcement officer in these tumultuous and 

turbulent times,” I have no reason to believe that would have posed any material risk that 

impermissible considerations would come into play in the jury’s deliberations. That is 

particularly true here because, as pointed out by the Court of Special Appeals, this was not 

a case in which the conduct of the police was put at issue, but rather a case where a father 

is being tried for assaulting his daughter. 
7

Even if the record had contained the materials supplied by Mr. Smith and the amici 

on appeal, in my view, the Court of Special Appeals got it exactly right when it stated:

No doubt, the “thin blue line” flag is perceived by many as a racist symbol 

antithetical to the Black Lives Matter Movement. Others, however, perceive 

the “thin blue line” flag to be a general symbol of support of law enforcement 

or pride in policing. In this appeal, however, we are not asked to determine 

whether the wearing of a “thin blue line” flag face mask by courtroom bailiffs 

is a wise practice, or whether Chief Judge Morrissey's prohibition of the 

wearing of such symbols in the District Court of Maryland was a prudent and 

sensible decision. Indeed, Judge Morrissey's determination that 

“[e]mployees of the District Court wearing any clothing item or apparel 

which promotes or displays a logo, sticker, pin, patch, slogan, or sign which 

may be perceived as showing bias or favoritism to a particular group of 

people could undermine the District Court’s mission of fair, efficient, and 

effective justice for all and call into question the Judiciary’s obligation to 

remain impartial and unbiased” is eminently reasonable. It is entirely 

appropriate for the judiciary and individual judges to take measures to ensure 

that all court personnel -- from the judge to the courtroom clerk to the bailiff 

-- appear neutral and unbiased at all times. In this appeal, however, we are 

mindful of the precise determination before us: whether the wearing of a 

“thin blue line” flag face mask by a courtroom bailiff is so inherently 

prejudicial as to deprive an accused of his constitutional right to due process.

Smith v. State, 253 Md. App. 25, 40–41 (2021), cert. granted, 477 Md. 382 (2022)

(footnote omitted).

I also agree with the sentiments expressed by intermediate appellate court when it 

stated:

In our view, the symbol of the “thin blue line” flag does not have one 

generally accepted meaning but instead is interpreted as meaning a variety 

of different things. Notably, the context in which the “thin blue line” face 

mask was displayed in this case must be considered. Specifically, the “thin 

blue line” flag at issue in this case appeared on the face mask of a uniformed 

and armed law enforcement officer serving as a courtroom bailiff. Inasmuch 

as the “thin blue line” flag is seen by some as a symbol of general support 

for law enforcement, a reasonable juror may have inferred that the law

enforcement officer wearing the “thin blue line” flag face mask was doing so 

in order to display his pride in being a law enforcement officer. As 
8

in Holbrook, jurors may have drawn a “wide[ ] range of inferences” from the 

bailiff’s face mask. Accordingly, we reject Smith’s inherent prejudice 

argument and hold that the wearing of a “thin blue line” flag face mask by a 

uniformed courtroom bailiff did not constitute inherent prejudice depriving 

Smith of his right to a fair trial.

We are mindful to make explicit what this opinion does not hold. We do not 

suggest that a bailiff wearing a “thin blue line” flag face mask is a good 

practice, nor do we suggest that prejudice can never arise in different 

circumstances in which actual prejudice rather than inherent prejudice is 

alleged. Indeed, a litigant may have a reasonable argument that a bailiff 

wearing a “thin blue line” flag face mask caused actual prejudice in a case 

involving, for example, allegations of excessive force or other misconduct 

by a law enforcement officer, or in a case in which a law enforcement 

officer's credibility is weighed against that of a layperson. Our opinion in this 

case does not foreclose such an argument. Furthermore, a prohibition on the 

wearing of “thin blue line” symbols by courthouse staff may be a prudent 

prophylactic measure to avoid issues on appeal, as well as to err on the side 

of caution to ensure litigants’ right to a neutral and fair tribunal. 

Here, however, we do not deal with allegations of actual prejudice. Our 

holding, therefore, is limited to the inherent prejudice argument raised in this 

case and discussed supra.

Id. at 43–45.

In conclusion, I simply do not believe, on this record, that the deputy Sheriff’s use 

of the thin blue line face mask deprived Mr. Smith of a fair trial. That said, I share the 

Majority’s underlying concern about the portrayal of symbols and messages of political or 

ideological content in the courtroom by any person affiliated with the State or law 

enforcement. As we noted in Aluisi, a sheriff’s authority is subject to the “rules of the 

Court of Appeals. . . . to the extent that the matter involves practice and procedure in the 

courts or the administration of the judiciary, by the Court of Appeals.” 354 Md. at 433. 

Irrespective of whether Mr. Smith’s right to a fair trial was inherently prejudiced, this case 
9

illustrates the need for this Court to exercise its rulemaking authority to prevent this 

situation from arising in the future. 

For the foregoing reasons, I respectfully dissent.

Judge Getty has authorized me to represent that he joins this dissent.