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

CONSTITUTIONAL LAW – SIXTH AMENDMENT – RIGHT TO A F AIR TRIAL – INHERENT PREJUDICE. **Petitioner was tried on assault charges in the Circ uit 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 con victed of two charges, he argued on appeal**  **that the display of the thin blue line flag was inh erently prejudicial to his right to a fair trial**  **under the Sixth Amendment to the United States Cons titution. 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) dem onstrate, 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 determin ation 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 inte rest.**  **The Court held that the bailiffs’ display of the th in blue line flag on their face masks was**  **inherently prejudicial to Petitioner’s right to a f air trial. The most benign meaning that can**  **reasonably be attributed to the thin blue line symb ol is a pro-law enforcement message. In**  **a criminal trial, the display of a pro-law enforcem ent 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 – agent s 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 tumultuo**  **us years in American history.**

**As the nation struggled to navigate the COVID-19 pa ndemic, a white Minneapolis police**  **officer killed George Floyd, an unarmed African Ame rican 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 Mat ter movement, leading to enormous**  **protests and counter-protests around the nation thr oughout the summer of 2020. The**  **pro-police “Blue Lives Matter” movement increased i n 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 sum mer 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 t he Circuit Court for Kent County, the State**  **charged Everett Smith, an African American man, wit h several criminal offenses arising**  **from an alleged physical altercation with his 14-ye ar-old daughter. In keeping with an**  **Administrative Order issued by the Chief Judge of t his Court, the trial court required all**  **people in the courtroom for Smith’s trial to wear f ace 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 polariz ing 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 bail iffs during Smith’s trial wore**  **thin blue line face masks as required by the Sherif f. Immediately before jury selection,**  **Smith’s attorney asked the trial court to direct th e deputy who was acting as the bailiff at** 

**that time to wear a different mask that did not inc lude an image of the thin blue line.**  **Believing the bailiff had a First Amendment right t o 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 custodia n.**  **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 cour troom is not a public forum where**  **restrictions on citizens’ First Amendment rights ar e subject to heightened scrutiny, and the**  **court expressed concern about the display of the th in blue line in courtrooms, it held that** 

**Smith did not his meet burden to demonstrate that h e 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 inher ently prejudicial to Smith’s right to** 

**a fair trial. We therefore vacate Smith’s convictio ns and order a new trial.** 

I

America in the Fall of 2020

A. The Maryland Judiciary’s Reaction to the COVID-19 P andemic **By mid-March 2020, COVID-19 had arrived in Maryland and was spreading rapidly**  **throughout much of the State. Under the direction o f 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 c itizens of the State.**  **1 The unprecedented**  **COVID-19 public health emergency caused the postpon ement of trials for months, as**  **Maryland’s citizens and judicial system grappled wi th the global pandemic.**  **In May 2020, Chief Judge Barbera issued an administ rative order lifting the**  **prohibition on jury trials, with trials to resume a fter October 5, 2020.**  **2 In October 2020,**  **Chief Judge Barbera issued an amended administrativ e order on the phased resumption of**  **operations as well as an amended administrative ord er on the resumption of trials scheduled**  **to begin on October 5. 3**  **Trials were permitted to go forward with strict sa fety requirements,**  **including required masking in court buildings, mand atory 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 co**  **ntinued 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 Tr ials and Resuming Grand**  **Juries (May 22, 2020), available at https://perma.c c/Z9V8-7WDD.** 

**3** See **Second Amended Administrative Order Lifting the St atewide Suspension of**  **Jury Trials and Resuming Grand Juries (Oct. 2, 2020 ), available at https://perma.cc/7ZTL**  **AW8G; Second Amended Administrative Order on the Pr ogressive Resumption of Full**  **Function of Judiciary Operations Previously Restric ted 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. C**  **hauvin kneeled on Floyd’s neck for over eight minutes. An unresponsive Floyd was declared d**  **ead, and his death was ruled a**

**homicide. 5**  **Bystanders’ videos of Floyd’s killing spread rapidl y, sparking widespread outrage**  **against police brutality and racial injustice. Majo r 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 sho oting of Trayvon Martin in 2012,**  **gained significant support and following in the aft ermath of Floyd’s murder.**  **6 This social**  **outcry brought other recent killings of African Ame ricans – in particular, Ahmaud Arbery** 

**4** See, e.g **.,** How George Floyd Died, and What Happened Next **, N.Y. T**  **IMES (May**  **19, 2022), available at https://perma.cc/S39N-KS44.**

**5 Chauvin**  **was charged with murder and related offenses in sta te and federal court.**  **In 2021, Chauvin was convicted of second-degree uni ntentional murder, third-degree**  **murder, and second-degree manslaughter in state cou rt in Minnesota. John Eligon, et al.,**  Derek Chauvin Verdict Brings a Rare Rebuke of Polic e Misconduct **, N.Y. T**  **IMES (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. T**  **IMES (June 25, 2021),**  **available at https://perma.cc/ZH88-PK27. Chauvin also pled guilt**  **y in federal court to violating Floyd’s civil rights and was sentenced to 252 months in tha**  **t case. Chauvin’s federal sentence will run concurrently with his state sentence. Nicolas B**  **ogel-Burroughs,** Derek Chauvin Pleads Guilty to Violating George Floyd’s Rights **, N.Y. T**  **IMES (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. T**  **IMES (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 pol ice in her own home.**  **7 These highly publicized killings of African America**  **n men and women, and subsequent protests, led to widespread calls for po**  **lice accountability, combatting of reported systemic racism in law enforcement, and in**  **trospection concerning police interaction with people of color. A call to “defund**  **the police” gained support among protestors and reformers, leading to public discuss**  **ion, proposals, and policymaking in cities and states across the country.**  **8 Proponents of the “defund the police” movement**  **sought to restructure and reallocate police respons ibilities and funding toward other**  **resource investments in communities, such as addres sing 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 Arb ery **, N.Y.**  **T IMES**  **(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. T**  **IMES (Apr. 26, 2021),**  **available at https://perma.cc/565B-3DKE.**

**8 Giovanni Russonello,**  Have Americans Warmed to Calls to ‘Defund the Polic e’? **, N.Y.**  **T IMES**  **(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. T**  **IMES (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 ref orms).** 

**10 Juliana Kim and Michael Wilson,**  ‘Blue Lives Matter’ and ‘Defund the Police’ Clash in the Streets **, N.Y. T**  **IMES (July 22, 2020), available at https://perma.cc/UHX**  **4-F7T2 (stating that supporters of Blue Lives Matter “shar**  **e a frustration with the criticism of police 6** 

C. The “Thin Blue Line” Flag **Counter-protests to BLM also appeared around the co untry 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 po**  **lice officers in 2014, served as a counterpoint to the BLM and “defund the police” mov**  **ements. 11**  **The “thin blue line” symbol, while having existed for some time, began t**  **o appear more frequently at these counter-protests.** 

**1. The “Thin Blue Line”**  **The “thin blue line” draws its origins from the “th in red line” of the British Army**  **during the Crimean War. During the battle of Balakl ava, an unconventional two-deep line**  **of Scottish infantry successfully repelled a Russia n cavalry charge. T**  **REVOR R**  **OYAL ,**  **C RIMEA**  **: T**  **HE G**  **REAT C**  **RIMEAN W**  **AR ,**  **1854-1856, at 266-68 (St. Martin’s Press, 2000). Th e**  **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 lin**  **e 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 publicl**  **y used in the 1920s and became more**

**behavior and tactics and the calls to defund the po lice,” and quoting a pro-police organizer**  **as saying that “this movement to ‘Back the Blue’ wa s 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, Par ker reformed the LAPD**  **from “local disgrace to national fame – a crisp, mi litaristic ‘thin blue line’ ....” Parker also**  **established a department-sponsored TV program calle d “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 “t hin blue line” flag, one depicting a**  **plain black flag with a large blue stripe across an d another as a version of the American**  **flag depicting black and white stars and stripes wi th a distinct blue line substituted for one**  **of the stripes. 14**  **Andrew Jacob, president of Thin Blue Line USA, cla ims credit for creation**  **of the thin blue line flag in 2014, although not th e image itself.**  **15 In 2020, some counter-protesters to BLM and pro-pol**  **ice protesters adopted the thin blue line image and flag as symbolic of their suppo**  **rt 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 uphea val prompted skepticism and confrontation **, L.A. T**  **IMES (May 25, 1992), available at https://perma.cc/7W9U**  **-Q627.**

**13** Id

**.**

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

**15 Maurice Chammah and Cary Aspinwall,**  The Short, Fraught History of the ‘Thin Blue Line’ American Flag **, P OLITICO**  **(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 Yor**  **k 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 (des**  **cribing how “[t]he ‘thin blue line’ has 8** 

**line flag also has been displayed by white supremac ists and violent extremists. During the**  **“Unite the Right” rally in Charlottesville, Virgini a, 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 B**  **lue Line Flag The thin blue line flag has been interpreted to con**  **vey several meanings and connotations, including showing support for law enf**  **orcement and “the men and women who put their lives on the line every day to protec**  **t us.” 19**  **According to Thin Blue Line**

**also been displayed at rallies of the ‘Blue Lives M atter’ movement ... [and that] ‘Blue Lives**  **Matter’ was launched in response to ‘Black Lives Ma tter’ ...”); Alexander Mallin and**  **Meredith Deliso,** Blue Lives Matter supporters arrested with slew of firearms outside Kenosha after police received tip about possible sh ooting, DOJ says **, ABC N**  **EWS (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 T**  **ODAY (Aug. 18, 2017), available at https://perma.cc/NGL**  **9-X45K; Tovia Smith,**  Thin Blue Line Flags Stir Controversy in Mass. Coas tal Community **, NPR (July 31, 2020), available at https://perma.cc/MH2B-PHCH (sta**  **ting 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 caus**  **ed 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 display**  **s 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 enforc ement and patriotism.**  **20 Thin Blue Line**  **USA also describes the symbolic meaning of the spac e “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 enf orcement,’ keeps crime**  **from pervading into society.” 22**  **Lastly, Thin Blue Line USA speaks to the flag repr esenting**  **“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 tho se with racist, violent, or extremist**  **views, including those who protested in Charlottesv ille and at the United States Capitol on**  **January 6, 2021. 24**  **The flag is seen by some in law enforcement as some thing that “‘holds [us] together’**  **and ‘protects us.’” 25**  **Or the thin blue line flag can stand for “‘maintai ning 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 Na**  **tional 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,” ma ny 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 c**  **onnotes opposition to ending police brutality and systemic racism.”**  **29 On occasion, additional symbols associated with vi**  **olence have been added to the flag, such as a skull associ**  **ated with “the Punisher,” a comic book character who extols extra-judicial violence and ki**  **llings. 30**  **Some believe that “[w]hat originally began as a banner supporting law enforce**  **ment in recent years has been increasingly hijacked by White Supremacist groups w**  **ho 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 li ne flag run the gamut from showing**  **pride in and support of law enforcement to promotio n 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 Americ a’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 Circ uit Court for Kent County by**  **way of a Criminal Information with first-degree ass ault, 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 Octobe r 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 counse l expressed concern about the**  **courtroom bailiffs’ display of the thin blue line f lag 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 fore most, 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 p eriod 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[] wh**  **at 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 o**  **f being in black, it is in blue. It makes a visual representation of this conc**  **ept of a thin blue line as something that the police are standing between orde**  **r and chaos. That they - - it is inherently a political statement. It is oft**  **en 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 po**  **wer 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 eve**  **ry 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 Stat e. Defense counsel replied that he did not**  **believe that a police uniform is “an inherently pol itical statement,” but that the symbol**  **displayed on the bailiff’s facemask “is used ... by m embers of the police [and] also by**  **member[s] of the public to indicate a political sta tement in support of police and in**  **contradiction to some of the movements, social move ments, that we’re seeing today.”**  **Thus, according to the defense, “having that repres entation on the facial coverings is**  **making a political statement in a place that is sup posed to be unbiased and providing a**  **neutral and fair place for his trial today.” The prosecutor responded: “I don’t think we can ju**  **st 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 anythi ng.” However, if it was meant to be**  **political speech, the prosecutor contended, such sp eech would be entitled to “more**  **protections.” Thus, the prosecutor framed the quest ion 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 impa rtial 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 unifo rm with a badge and a firearm.”**  **A few moments later, the following colloquy occurr ed among the court, defense**  **counsel, and the prosecutor: THE COURT: Well, is there any -- I mean, is there a**  **ny 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 assum**  **e, 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 me**  **ans, the only interpretation. But is there any law that you’re aware of that dist**  **inguishes 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 -- polit**  **ical speech is constitutionally protected and any regulation to li**  **mit 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 t**  **hat says that they are in any different position than anybody else coming**  **in the courthouse? [PROSECUTOR]: Judge, the law that I’m aware of, ... c**  **omes 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 tri**  **al court “has the authority to**

**establish the decorum in the courtroom ... to indicat e that there is no bias toward any party,**  **that everyone who is present receives a fair treatm ent[.]” The trial court responded:**  **Well, it’s the Court’s ability to enforce the decor um 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 i t thought decorum should**  **be if that -- if those rules conflict with and cont radict the Constitution.**  **After additional argument, the trial court delivere d its ruling from the bench:**  **The Court’s going to find that while it is, you kno w, 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 i s; that it’s merely something**  **that the elected sheriff of this county has purchas ed 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 politic al statement, that it’s**  **protected by the First Amendment to the Constitutio n 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 tr ial court explained that questioning**  **of the prospective jurors would proceed “in two pha ses” to allow for social distancing. The**  **court explained that this was necessary because “pe ople have concerns about COVID-19**  **and that’s understandable.” The court catalogued se veral measures designed to protect the**  **health and safety of those present, including maint aining six feet of separation between**  **people, “much more frequent[]” cleaning of the cour thouse, the erection of “barriers” in**  **the courtroom, and the presence of multiple hand sa nitizing 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 w e can to try and insure your protection.”**  **The court then told the potential jurors: “If any o f 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 addres s them.”**  **Voir dire then proceeded. As required, the trial c ourt asked the prospective jurors**  **questions designed to reveal bias in favor of or ag ainst law enforcement. After completing** **15**

**strikes for cause, the trial court adjourned the pr oceedings for the day. Jury selection**  **resumed the next morning, October 15, 2020, with th e 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 lo wer their face mask for a few seconds so**  **that the parties could see their full faces. The fi rst 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 jur ors to “follow the bailiff” as they took**  **their seats. In several of those instances, while d irecting the particular juror to follow the**  **bailiff, the trial court also asked the juror to pu t their mask back on.**  **32 After the jury was sworn, the trial court gave prel**  **iminary instructions. As part of that presentation, the court told the jurors:**  **After the attorneys make opening statements, each o f you will be given a**  **notepad and a pencil to use to take notes during th e evidence portion of the**  **trial. Please write your juror number and nothing e lse on the first page of the**  **notepad. At the end of the day, if we go into a sec ond 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 rep orts about the case. If** 

**32 For example, the court told one juror: “Sir, follo**  **w the bailiff, please. And you can put your mask back up.” In another instance, the co**  **urt told a juror: “Ma’am, you can put your mask on and follow the bailiff there.” To anot**  **her of the accepted jurors, the trial court said: “Sir, you can put your mask back on and follo**  **w 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, ple ase 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 t he case to anyone. And**  **if anyone does try to communicate with you or if yo u inadvertently overhear**  **something, again, make sure that you write a note o r communicate that to**  **your forelady and she can communicate it to the bai liff 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 it**  **s case-in-chief. The State’s first witness was the alleged victim, L.H., whose testimony was i**  **nterrupted 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 ind**  **icate to me that the alternate juror was saying he was having some difficulty hear**  **ing [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, af**  **ter 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 cour**  **t said: Ladies and gentlemen, the time has come for me to i**  **nstruct you as to the law that you are to apply in this case. I’m going to re**  **ad through -- the bad news is you have to listen to me read through all of the**  **se 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 wa**  **nt to refer to them during your deliberations, you have them back there with y**  **ou. If you do have any questions during your deliberations, I would ask yo**  **u to knock on the door -- have your forelady knock on the door and the bailif**  **f 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 j urors 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 q uestions, 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 th e 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 b efore reaching its verdict. The**  **jury found Smith guilty of second-degree assault an d 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 f ollowed 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 At**  **torney 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 convi ctions, 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 tr ial 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 ba iliff’s First Amendment rights was**  **incorrect, the intermediate appellate court conclud ed that “the bailiff’s wearing of the ‘thin** 

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

**fair trial.”** Id. **at 35. The court acknowledged that the thin blue li ne flag “is perceived by**  **many as a racist symbol antithetical to the Black L ives 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 po**  **licing.”** Id. **The court reasoned that, because “the symbol of the ‘thin blue line’ flag do**  **es not have one generally accepted meaning but instead is interpreted as meaning a var**  **iety 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 offic er 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 re asonable juror may have**  **inferred that the law enforcement officer wearing t he “thin blue line” flag** **19**

**face mask was doing so in order to display his prid e in being a law**  **enforcement officer.**

Id. **at 44 (footnotes omitted). For this reason, the Cou rt 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 t hat its holding was not an**  **endorsement of the display of the thin blue line fl ag in courtrooms:**  **We are mindful to make explicit what this opinion d oes not hold. We do not**  **suggest that a bailiff wearing a “thin blue line” f lag 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 a**  **rgument that a bailiff wearing a “thin blue line” flag face mask caused**  actual prejudice **in a case involving, for example, allegations of excessive fo**  **rce 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. Furt**  **hermore, a prohibition on the wearing of “thin blue line” symbols by courthou**  **se 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 arg**  **ument 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 im**  **pression, 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 clai**  **ms, 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 the refore violated his Sixth Amendment**  **right to a fair trial. He contends that the thin bl ue line symbol posed an unacceptable risk**  **of impermissible factors coming into play because i t injected bias into his trial. According**  **to Smith, at the very least, the thin blue line sym bol conveyed general support for law**  **enforcement. However, Smith argues that it also cou ld have been interpreted by jurors as**  **presenting a “loyalty test,” which effectively aske d jurors: “[W]hich side are you on? Do**  **you stand with civilized society, or the criminal e lement?” 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 i nclude that question in the writ of**  certiorari **that we issued. 21** 

**white supremacy. According to Smith, all of the pos sible interpretations of the thin blue**  **line symbol communicate biases that fundamentally d etract from the neutrality and**  **impartiality essential to a criminal trial. Smith f urther 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 e vidence presented to them, because the**  **jurors would conclude that the court approved of th e messages conveyed by the thin blue**  **line symbol. The State, on the other hand, contends that the mul**  **tiple meanings a juror could draw from the thin blue line flag dooms Smith’s claim be**  **cause a finding of inherent prejudice requires that a courtroom practice convey one clear**  **and unmistakable message that comments on the particular defendant’s case. Accord**  **ing 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 righ**  **t to a fair trial. In this regard, the**

**State observes that a uniformed bailiff does not ho ld the same place of authority as a trial**  **judge presiding over the case. Thus, according to t he State, while a judge wearing a pro-law**  **enforcement message in a criminal trial would be pr oblematic, a bailiff can wear a symbol**  **expressing pride in their profession without infrin ging 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 jur ors were screened for pro-law enforcement**  **bias during voir dire. Finally, the State contends that Smith failed to cr**  **eate a detailed enough record to establish inherent prejudice. According to the Stat**  **e, the record reveals little about what 22** 

**jurors actually saw. For example, Smith failed to m ake 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 li ne flag may have conveyed.**  **We agree with Smith. The thin blue line flag convey s 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 o f 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 Sixt h 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 t**  **he 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 f**  **air 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 som e 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, subst**  **antial pretrial publicity in a murder case actually prejudiced the defendant’s right to a**  **fair trial). A showing of inherent prejudice does not require pr**  **oof that the complained-of practice actually affected the jurors’ decision-mak**  **ing process. As the Supreme Court has stated, “[t]he actual impact of a particular practi**  **ce 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 ef**  **fects of a particular procedure, based on reason, principle, and common human experience.”**  Id. **A defendant establishes inherent prejudice if the defendant shows that the challenge**  **d 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 hav**  **e 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 custod**  **y. 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 reminde r of the accused’s condition,” and that**  **it was “so likely to be a continuing influence thro ughout the trial that ... an unacceptable**  **risk is presented of impermissible factors coming i nto 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 no**  **t 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-iss**  **ued 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 u niformed state troopers**  **sat in the spectator’s section behind the bar direc tly 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 t he 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 t he 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 secu rity 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 woul d**  **not affect the defendants’ ability to receive a fai r trial, the trial court overruled Holbrook’s** **25**

**objection, and the trial began. Three defendants we re acquitted; Holbrook and two others** 

**were convicted.** Id. **After the Supreme Court of Rhode Island affirmed th e convictions, Holbrook sought**  **habeas corpus review in federal court. Eventually, his habeas petition was considered by**  **the Supreme Court. The Court acknowledged the requi rement under the Sixth Amendment** 

**that “one accused of a crime is entitled to have hi s 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 circumstanc es 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 tha t 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 fr**  **om trial procedures every reminder that the State has chosen to marshal its resources again**  **st 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 dur ing 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 ide**  **ntifiable security officers from courtroom practices we might find inherently p**  **rejudicial is the wider range of inferences that a juror might reasonably d**  **raw from the officers' 26** 

**presence. While shackling and prison clothes are un mistakable 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 interp reted 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 ema nating from outside the**  **courtroom or to ensure that tense courtroom exchang es do not erupt into**  **violence. Indeed, it is entirely possible that juro rs will not infer anything at**  **all from the presence of the guards. If they are pl aced at some distance from**  **the accused, security officers may well be perceive d 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 lon g as their numbers or**  **weaponry do not suggest particular official concern or alarm.** 

Id. **at 569. The Court concluded that “‘reason, principl e, and common human experience’**  **counseled against a presumption that any use of ide ntifiable 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 deploy**  **ed, ... 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’ cla ims 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 prejudic**  **ial, jurors will not necessarily be fully conscious of the effect it wil**  **l have on their attitude toward the accused. This will be especially true wh**  **en 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 prac**  **tice daily over the course of a long trial. Whenever a courtroom arrangement i**  **s challenged as inherently prejudicial, therefore, the question mus**  **t be not whether jurors 27** 

**actually articulated a consciousness of some prejud icial effect, but rather**  **whether “an unacceptable risk is presented of imper missible factors coming**  **into play[.]”**

Id. **(quoting** Williams **, 425 U.S., at 505). Turning to the objective consideration of the pres**  **ence of the four troopers at Holbrook’s trial, the Court determined that this po**  **lice presence was not inherently prejudicial to Holbrook’s right to a fair trial. Wh**  **ile the Court did not “minimize the threat that a roomful of uniformed and armed policemen mig**  **ht 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 w ondered 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 t**  **he 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 ba**  **il 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 th e 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 conclus**  **ion 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 pe**  **ople, 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 emplo**  **yed 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 fel**  **onies.** 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 cl**  **ose to the defendant in the courtroom, as well as other uniformed and plainclothes officer**  **s 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 ri**  **sk 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 mea**  **sures outside the courtroom were not necessarily that the defendant was dangerous or unt**  **rustworthy, 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 m**  **easures.** Id. **at 720-22. The Court distinguished a heightened security officer p**  **resence in the courtroom from a defendant being shackled or wearing a prison unifor**  **m or other measures that can “create the impression in the minds of the jury that the de**  **fendant is dangerous or untrustworthy.”** Id. **at 721 (internal quotation marks and citation omit ted). The Court held that the**  **courtroom security measures during Bruce’s trial we re 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 cou**  **rt to order the removal of the MADD buttons, or the spectators wearing them, from the c**  **ourtroom.** Id **. The court granted no relief.**

See id. **On appeal, West Virginia’s high court noted the rig ht of defendants and the public**  **under its State Constitution to an “open public tri al 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 in**  **sulated, 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 protecte**  **d the right to a fair trial: In this case the spectators were clearly distinguis**  **hable from other visitors in the courtroom and, led by the sheriff, they constit**  **uted 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 predominan**  **t group of ordinary citizens who were tooth and nail opposed to any fin**  **ding that the defendant was not guilty. This Court quite simply cannot stat**  **e that the mere presence of the spectators wearing MADD buttons and the pres**  **sure and activities of the uniformed sheriff leading them did not do irrep**  **arable damage to the defendant’s right to a fair trial by an impartial j**  **ury.** Id. **;** see also Long v. State **, 151 So. 3d 498, 501-02, 505 (Fla. Dist. Ct. App. 2014)**  **(defendant convicted of molestation and sexual batt ery 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 C hild Abuse” was inherently**  **prejudicial). 30** 

**In other instances, courts have concluded that clo thing 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 pre judice. 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 tha**  **t 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] c**  **amaraderie for one another.”** Id. **at 822. Although the Court stated that jurors “may be affec**  **ted by the presence of uniformed police officers regardless of what they believe the office**  **rs’ intentions to be,” it concluded that the “risk of undue influence” from the showing of polic**  **e in the courtroom was not “unacceptably high.”**  Id. **;** see als **o** State v. Dillon **, 788 N.W.2d 360, 363 (S.D. 2010) (holding that a display of children’s shoes in a ha**  **llway that the jury walked through did not inherently prejudice the defendant accused of r**  **aping multiple children);** Billings v.

Polk **, 441 F.3d 238, 246-47 (4th Cir. 2006) (holding tha t there was not inherent prejudice**  **when an alternate jury member wore a t-shirt displa ying the message “No Mercy – No**  **Limits”). We glean from the cases we have discussed above th**  **at 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 mus**  **t: (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 th at 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 th e 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’ displa y of the thin blue line flag on their face**  **masks was inherently prejudicial to Smith’s right t o 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 Just**  **ice System, the Thin Blue Line Has No Place in a Criminal Trial.**  **Courtrooms “are a stage for public discourse, a neu tral 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 ou**  **rselves that a courtroom is committed to being a neutral environment – a holy s**  **hrine of impartiality in its resolutions of differences, and a place dedicated to fairness a**  **nd equal treatment under law[.]”). As the judicial officer presiding over the courtroo**  **m, the trial judge has the responsibility to ensure that the courtroom in ever**  **y 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 wit h the responsibility of maintaining**  **proper order and decorum. In carrying out this resp onsibility, the judge must ensure that**  **the courthouse is a place in which rational reflect ion and disinterested judgment will not**  **be disrupted”) (cleaned up). “[I]t is beyond seriou s question that the proper discharge of**  **these responsibilities includes the right (and, ind eed, the duty) to limit, to the extent**  **practicable, the appearance of favoritism in judici al 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 responsibilit**  **y to maintain “a neutral, politically impartial environment[] dedicated to fairness and e**  **qual 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 gov**  **ernment 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 nonpu**  **blic forum, where the First Amendment rights of everyone (attorneys included) a**  **re at their constitutional nadir. In fact, the courtroom is unique even among nonpublic fora b**  **ecause within its confines we regularly countenance the application of even viewp**  **oint-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 no**  **npublic forum.”);** Minnesota Voters All. v. Mansky **, 138 S. Ct. 1876, 1885 (2018) (“In a nonpublic for um ... the government has**  **much more flexibility to craft rules limiting speec h.... The government may reserve such**  **a forum ‘for its intended purposes, communicative o r otherwise, as long as the regulation**  **on speech is reasonable and not an effort to suppre ss 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 righ t 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 cour troom to the extent possible, and**  **thereby ensure that there is not an unacceptable ri sk of impermissible factors coming into**  **play.** See Holbrook **, 475 U.S. at 571-72. In a criminal trial, in which the State is bringin**  **g to bear its law enforcement resources against the accused, an extraneous messag**  **e 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 prose**  **cution’s side of the scales based on matters that are not in evidence. Certainly, not ev**  **ery pro-law enforcement message in a courtroom will rise to the level of inherent prejud**  **ice. One or two people wearing Fraternal Order of Police baseball caps as they watch a crimi**  **nal trial from the gallery will presumably cause less concern than 50 spectators si**  **multaneously displaying a recognizably pro-law enforcement message. At some point along th**  **e continuum of possible pro-law enforcement messaging in a courtroom, the circumsta**  **nces 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 courtr**  **oom practice that conveys a prejudicial message by demonstrating that the chall**  **enged 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 circ**  **uit court’s ruling on the ground that the display of the thin blue line flag mask furthered a**  **n essential state interest. Like everyone else in the courtroom, the bailiffs were required t**  **o 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 li ne can mean different things to different**  **people, we disagree with the State’s contention tha t 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 express ing support for white supremacy.**  **Although these messages range from benign to malevo lent, none of them should be**  **conveyed to the jury in a criminal trial. All of th em 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 p ride 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 St**  **ate at Smith’s trial, but that circumstance is not essential to our analysis. An e**  **xtraneous pro-law enforcement message would also be inappropriate at a criminal trial tha**  **t did not include any law enforcement witnesses. Similarly, it is immaterial that the def**  **ense did not raise any issues involving alleged police misconduct. The credibility of a par**  **ticular police officer or the validity of a particular police action need not be called into qu**  **estion in order for a court agent’s display of a pro-law enforcement message to carry an unacce**  **ptable 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 d isplay of the thin blue line**  **symbol at Smith’s trial merely inappropriate, or di d it rise to the level of inherently**  **prejudicial to Smith’s right to a fair trial? We co nclude 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 v**  **iewed the defendant as dangerous and that they should therefore side with law enforcemen**  **t and against Holbrook when delivering their verdict. Here, the most benign of the possibl**  **e 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 inher**  **ent 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 n ature of the inherent prejudice inquiry,**  **we need not determine that all the jurors, or any p articular 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 a ssociated with a courtroom practice or**  **message, not how a particular group of jurors actua lly reacted to the practice or message.**  **As discussed above, by the time of the trial, the t hin 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 symb ol 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 be en widely recognized in the United**  **States by October 2020 as controversial,** see **Dissent Slip Op. at 1 n.1, we must respectfully disagree. Nor do we agree with Judge Gould’s view (**  **Dissent Slip 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 leadin**  **g up to Smith’s trial in October 2020 that would have led its citizens to fail to recogni**  **ze the thin blue line flag as a pro-law 36** 

**2. Because the Bailiff Is an Agent of the Court, the B**  **ailiffs’ 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 impres sion 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 offi cer of the court as well as the State – beyond**  **question carries great weight with a jury[.]” Not o nly is the bailiff an “officer of the court,”**  **a term often associated with the attorneys who appe ar 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 prejudici al 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 cour**  **t itself any action on the part of the bailiff concerning the jury should be subject to close scru**  **tiny by the court.”);** Reynolds v. Allied Emergency Services, PC **, 193 So. 3d 625, 631 (Miss. App. 2016) (finding pr ejudice in civil**  **case where erroneous jury instructions were deliver ed to the jury by “the bailiff – an**  **extension of the court and trial judge – ... which ca rrie[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 o**  **f the jury, the bailiff is an agent of the**

**enforcement symbol. In short, we are confident that the “thin blue line” was sufficiently**  **well known as a pro-law enforcement symbol througho ut the United States – including**  **Kent County – by the time of Smith’s trial to creat e 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 cour t.”). Thus, any political message that**  **bailiffs convey to the jury – verbally or non-verba lly – in the course of performing their**  **duties may well be imputed by the jurors to the cou rt.**  **41 For this reason, the display of the**  **thin blue line symbol by at least two bailiffs 42**  **carried a much greater potential for prejudice than, for example, if two spectators seated separat**  **ely 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 th**  **ousands of jurors, finding that “[j]udges are the ones who most directly affect the way in wh**  **ich jurors perceive th[e] system,” and**

**41 In this case, the symbol that the court agents con**  **veyed was the thin blue line flag. We would reach the same conclusion concerning a cou**  **rt agent’s display of any other symbol that creates an unacceptable risk of the jur**  **y deciding a criminal case based on impermissible factors.** 

**42 The record reflects that at least two Sheriff’s de**  **puties served as bailiffs for at least part of Smith’s trial. Given that the Sheriff of Ke**  **nt 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 St**  **ate 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 o**  **f prejudice to a defendant receiving a fair trial, the judge is powerless to take appropriate a**  **ction. 38** 

**cautioning that “court personnel” are “a direct ref lection on you the judge, and**  **consequently a reflection on the judiciary in gener al”).**  **44 The State downplays the significance of the bailiff**  **’s role as the court’s agent, emphasizing that the bailiff “is not identical to t**  **he court.” For example, the State observes, a “bailiff can wear a police uniform without impedi**  **ng the fairness of court proceedings or signaling a ‘pro-prosecution’ message. The same cou**  **ld 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 i**  **s, if a bailiff can wear the uniform in the courtroom without running afoul of the Sixth Amendm**  **ent, 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 addi ng a controversial political symbol to an**  **officer’s clothing or accessories. The same juror w ho would give no thought to seeing a** 

**44 In his Dissenting Opinion, Judge Gould seems to su**  **ggest 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 Slip Op. at 1, 8. As the judicial officer responsible for ensuring that a de**  **fendant receives a fair trial and for maintaining proper decorum in the courtroom general**  **ly, 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 Judg**  **e may require the State’s Attorney and the State’s Attorney’s staff to comply with cou**  **rthouse security procedures, despite the State’s Attorney’s status as a constitutionally est**  **ablished 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 pers on.**  **45**

**The State also contends that the bailiffs did not i ntend to comment on Smith’s case**  **through their donning of the face masks. Assuming t hat is true, it is of no moment. We are**  **not concerned here with the bailiffs’ subjective in tent in conveying a particular message,**  **or for that matter, with the Sheriff’s intent in re quiring 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 displa**  **yed 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, be**  **cause 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 Slip 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 th e jurors that, if they had any questions**  **or concerns during the course of the trial, they sh ould notify the bailiffs. It was equally**  **clear to the jurors that the bailiffs were followin g the instructions of the trial court. We**  **have no doubt that the jurors understood the bailif fs to be the court’s agents. And, indeed,**  **the deputies were the court’s agents while performi ng their duties as bailiffs.** 

**46 We pause to note that we in no way ascribe any nef**  **arious motive to the Sheriff in directing his deputies to wear the thin blue line f**  **lag 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 20**  **20 when it presided over Smith’s trial.**

**47 During oral argument, Smith’s attorney indicated t**  **hat a trial court may consider the State’s objection to the display of a symbol th**  **at 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 Crimina**  **l 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 occurr ed. As discussed above, Smith’s trial**  **went forward in the immediate aftermath of George F loyd’s murder, large protests in**  **support of BLM, and pro-police counter-protests. So me 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 unde**  **r attack. 49**  **Additionally, a survey of nearly 200 departments by the Police Executive Rese**  **arch Forum showed a 45% increase in the retirement rate and 18% increase in resignat**  **ions during the 12-month period between April 2020 and March 2021, when compared to the sam**  **e period a year earlier. 50**  **We cannot ignore the “contemporary climate” when ev aluating 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. T**  **IMES (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.**  **T IMES**  **(June 24, 2021), available at https://perma.cc/KM5 Q-RVU3; Russonello,**  supra **note 8. Morale in some police departments in the m onths 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 Geo rge Floyd’s Death **, N EWSWEEK**  **(June 14, 2020), available at https://perma.cc/7PP6 -KCAY; Eric Westervelt,**  Cops Say Low Morale And Department Scrutiny Are Driving Them Awa y 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 all eged 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 h**  **ad “touches of homosexuality in it,” and asked if that would prevent anyone from deciding th**  **e 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 p**  **erson 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 j**  **ury was seated, but the guards continued to wear rubber gloves after they took the**  **ir position immediately behind Wiggins.**

Id. **at 237. Defense counsel again objected, arguing tha t 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 con victed.**  Id. **at 238. At a hearing on Wiggins’s motion for a new trial, his counsel argue**  **d that “Mr. Wiggins being paraded back and forth in front of the jury with the deputies we**  **aring gloves, I believe that procedure in 42** 

**and of itself was so inherently prejudicial as to d eprive 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 guar**  **ding Wiggins, would not be without curiosity as to the guards’ protective a**  **ttire. 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 o**  **f the fact-finding process and diluted the principle that guilt is to be estab**  **lished 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, consider ing the contemporary climate,**  **from seeing the guards protected in their contact w ith 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 prej udiced because the**  **defendant may have AIDS. Inquiry with respect to th e latter was not made.**  **[51]**

**51 In this case, the trial court asked voir dire ques**  **tions designed to reveal bias in favor of law enforcement. The State argues that thi**  **s undermines Smith’s inherent prejudice claim to the extent it is based on the jurors havin**  **g received an extraneous pro-law enforcement message. We disagree. It is not the cas**  **e that, having screened jurors for pro-law enforcement bias, the court’s decision to c**  **onduct the trial with court agents displaying a pro-law enforcement message is insulat**  **ed 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 ac**  **cused.” 475 U.S. at 570. “Whenever a courtroom arrangement is challenged as inherently p**  **rejudicial, therefore, the question must be not whether jurors actually articulated a consci**  **ousness 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 Fla g Influences Capital Cases in Louisiana **, 27 H ARV** 

**. J.**  **R ACE**  **& E**  **THNIC J**  **UST . 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 parti cular 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 e vidence, it is not far**  **fetched that the jury, observing the gloves, though t it better, in any event, that**  **Wiggins be withdrawn from public circulation and co nfined in an**  **institution[.]**

Id. **at 244-45. In this case, as in**  Wiggins **, the “contemporary climate” is important to our de cision.**  **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 acros s the** 

**nation. 53**  **Against this backdrop, the bailiffs’ display of th e 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 en forcement 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 partic ular case.** 

**decision-making through subconscious channels shoul d likewise be treated as inherently**  **prejudicial where their effect is heightened by per ception of authoritative status”).** 

**52** See, e.g **., Joe DiFazio,** Dividing line: thin blue line flag source of divisi on on South Shore **, T HE**  **P ATRIOT**  **L EDGER**  **(Aug. 21, 2020), available at https://perma.cc/FBC 3-5Y42;**  **Rita Oceguera,** In Mount Prospect, a village divided over the ‘thin blue line,’ **I NJUSTICE**  **W ATCH**  **(Sept. 2, 2021), available at https://perma.cc/A3H Y-4DS6; Lauren Frias,**  The ‘Thin Blue Line’: How a simple phrase became a controversial symbol o f the police **, I**  **NSIDER (Feb. 24, 2021), available at https://perma.cc/3VR**  **U-3KRJ.**

**53 Dionne Searcey,**  What Would Efforts to Defund or Disband Police Depa rtments Really Mean? **, N.Y. T**  **IMES (June 8, 2020), available at https://perma.cc/DS52**  **-B2B2; Sarah Holder,**  The Cities Taking Up Calls to Defund the Police, **B LOOMBERG**  **(June 9, 2020), available at https://perma.cc/8T74-TLW9.** **44**

**4. The Record Is Sufficient to Establish Inherent Prej**  **udice 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 Spec ial Appeals’ observation that**  **“there is nothing in the record about ... the specifi c 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 give**  **n that the bailiff would not generally be ‘interacting’ with the jury during the bulk of t**  **he trial but simply standing or sitting in place.”**  **In our view, the record is sufficient to find inher ent 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 th at the jury had ample opportunity to view**  **the thin blue line flag on the faces of the bailiff s 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 th in blue line flag masks throughout the trial.**  **Moreover, the trial court directed the jurors’ atte ntion to the bailiff(s) many times during**  **the trial. Among other things, after a juror was pr onounced “acceptable” by both parties**  **during jury selection, the juror was told to “follo w the bailiff right there.” On several**  **occasions, that direction was coupled with a reques t 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 als o 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 mul tiple 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 t rial, 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 baili ff 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 del iberating. And, immediately prior to**  **deliberating, the jurors saw the bailiffs being swo rn.**  **The State points out that everyone was wearing a fa ce 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 witn esses and others in the courtroom. We**  **disagree. What the authority figures in the courtro om chose to display on their face masks**  **was likely to be of particular interest to the juro rs. Those authority figures were the judge**  **and the bailiffs. Undoubtedly, one of the reasons t he Sheriff of Kent County decided to**  **require his deputies to wear this particular mask w as 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 c ourt 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 crimi nal case, a defendant’s Sixth**  **Amendment right to a fair trial requires that the j ury 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 is jeop ardized. 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 co**  **ncluded, the Chief Judge of the District Court of Maryland, the Honorable John P. M**  **orrissey, instructed District Court judges and staff not to wear face masks or other ap**  **parel that display the “thin blue line.” Chief Judge Morrissey stated that “[e]mployees of t**  **he 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, eff**  **icient, and effective justice for all and call into question the Judiciary’s obligation to re**  **main impartial and unbiased.” Cameron Jenkins,**  Maryland District Court chief judge bans ‘thin blue line’ masks over bias

concerns **,” T HE**  **H ILL**  **(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, 2022Although I agree with the Majority that the courtro om 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 pres ented here never repeats itself, I nevertheless respectfully dissent. Under the guise of a de novo review of a question o f law, the Majority takes the liberty of making factual findings as to the variou s 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 Time s, 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 b lue line mask was perceived there. At any rate, regardless of when t hese articles were published, the more significant problem I have with the Majority’s reli ance 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 tri al court, I don’t agree that they establish that, as argued by the Majority, “the thi n 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, slip op. at 35, n.40 (M d. Aug. __, 2022). With due respect to the hardworking jou rnalists and commentators at the New York Times and elsewhere, their reporting that some thing 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 say ing 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 unde rstood 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 e lsewhere 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 obligati on to conduct our review based on the

contents of the record. There is a proper way to put such issues before a t rial court, and Mr. Smith did not follow it. The correct way is set forth in Marylan d Rule 4-252, which governs motions practice in the circuit court. Relevant here, subs ection (d) states that a motion or request “capable of determination before trial without tria l of the general issue, shall be raised by motion filed at any time before trial.” Also relev ant is subsection (e), which states that “[a] motion filed pursuant to this Rule shall be in writ ing 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 stateme nt of points and citation of

authorities.” This Rule was designed to provide both the court an d opposing party with the time and information necessary to address the issues rai sed by the motion. Mr. Smith acknowledged addressing the issue with unnamed indi viduals on behalf of the State and the court in the preceding week, yet failed to comp ly with these timing and writing3

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 establish ing 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 declini ng 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 differen t 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 provi des 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 m ay hereafter be fixed by law.” Thus, sheriffs are constitutional officers whose powers and duties are not expressly enumerated in the Constitution. R ather, those powers and duties are prescribed by the common law as modified by the Acts of the Legislature. Accordingly, sheriffs retain their com mon law powers and duties until deprived of them by the Legislature. (citations omitted). The Sheriff’s office has a common-law duty of atten ding and providing courtroom security. See Prince George’s Cnty. v. Aluisi , 354 Md. 422, 434 (1999). Although “courtroom security is an ultimate determination th at 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 unif orms worn by its deputies and to mandate compliance therewith. The trial court, the refore, was appropriately reluctant to exert its authority to countermand a lawful order c oncerning a matter squarely within the4

Sheriff’s purview. Because Mr. Smith failed to mee t his burden of establishing an entitlement to such relief, the trial court properl y denied his motion. The Majority states that the most benign messages t hat could have been intended by the thin blue line face masks were to convey genera l support for law enforcement or pride in their chosen profession of law enforcement. Asi de from the lack of any evidence in the record from which such a conclusion may be drawn, 2 the Majority does not adequately explain why such messages translate to an unaccepta ble 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 citize ns from which the jury was drawn.

See Md. Ann. Cts. & Jud. Proc. (“CJP”) § 8-103 (2006, 2 020 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 Lin e,’ I NJUSTICE W ATCH (Sept. 2, 2021), available at https://perma.cc/A3HY-4DS6—quotes a ne ws 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 ulti mate 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 co nvey 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 in dividual qualifies for jury service for a county only if the individual: (1) Is an adult as of the day selected as a prospec tive juror; (2) Is a citizen of the United States; and (3) Resides in the county as of the day sworn as a juror.

Disqualifying factors5

knew that the Sheriff was an officer separate and d istinct 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 cons cious knowledge or lack thereof”), and therefore would not view the deputy Sheriff as an a gent 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 repeated ly 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 n ot qualified for jury service if the individual: (1) Cannot comprehend spoken English or speak Engli sh; (2) Cannot comprehend written English, read English , or write English proficiently enough to complete a juror qua lification form satisfactorily; (3) Has a disability that, as documented by a healt h care provider's certification, prevents the individual from providi ng 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 rec eived a sentence of imprisonment for more than 1 year; or (5) Has a charge pending, in a federal or State cou rt of record, for a crime punishable by imprisonment exceeding 1 year.

Pardon of convicted individuals (c) An individual qualifies for jury service notwit hstanding 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 th e court.6

decision solely on the evidence admitted in the tri al 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 d eliberations. You must decide this case based on the evidence produce d at trial. Nothing the Court may say or do during the course of trial inte nded to indicate or should be taken by you as indicating what your verdict sh ould be. During any break or recess, including any overnigh t break, you must not conduct any research or investigation about the case or any of the individuals involved in it. You may not consult wit h any dictionaries, reference materials, search the internet, websites, blogs or consult other sources for information about the case. You must no t 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 delib erate and decide the case, you must not discuss this case with anyone else. Yo u 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 brou ght together. But the reason that I'm asking you not to discuss the case until y ou begin your deliberations is that evidence comes to you in little bits and pi eces 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 orde r to remain fair and impartial, you should not discuss and decide this c ase 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 enforc ement 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 i n the jury’s deliberations. That is particularly true here because, as pointed out by t he Court of Special Appeals, this was not a case in which the conduct of the police was put a t issue, but rather a case where a father is being tried for assaulting his daughter.7

Even if the record had contained the materials supp lied 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. Ot hers, 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 a re 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 Morrisse y's prohibition of the wearing of such symbols in the District Court of Ma ryland was a prudent and sensible decision. Indeed, Judge Morrissey's determ ination that “[e]mployees of the District Court wearing any clot hing item or apparel which promotes or displays a logo, sticker, pin, pa tch, 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 th e Judiciary’s obligation to remain impartial and unbiased” is eminently reasona ble. It is entirely appropriate for the judiciary and individual judges to take measures to ensure that all court personnel -- from the judge to the c ourtroom clerk to the bailiff -- appear neutral and unbiased at all times. In thi s appeal, however, we are mindful of the precise determination before us: whe ther the wearing of a “thin blue line” flag face mask by a courtroom bail iff is so inherently prejudicial as to deprive an accused of his constit utional 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 inter mediate appellate court when it

stated: In our view, the symbol of the “thin blue line” fla g does not have one generally accepted meaning but instead is interpret ed 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 t he face mask of a uniformed and armed law enforcement officer serving as a cour troom bailiff. Inasmuch as the “thin blue line” flag is seen by some as a s ymbol of general support for law enforcement, a reasonable juror may have in ferred that the law enforcement officer wearing the “thin blue line” fl ag face mask was doing so in order to display his pride in being a law enforc ement officer. As8

in Holbrook , jurors may have drawn a “wide[ ] range of inferen ces” 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 inhe rent prejudice depriving Smith of his right to a fair trial. We are mindful to make explicit what this opinion d oes not hold. We do not suggest that a bailiff wearing a “thin blue line” f lag 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 a rgument that a bailiff wearing a “thin blue line” flag face mask caused actual prejudice in a case involving, for example, allegations of excessive fo rce 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. Furthermo re, a prohibition on the wearing of “thin blue line” symbols by courthouse s taff 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 a ctual prejudice. Our holding, therefore, is limited to the inherent prej udice argument raised in this case and discussed supra

. Id. at 43–45. In conclusion, I simply do not believe, on this rec ord, 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 o f 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 matt er involves practice and procedure in the courts or the administration of the judiciary, by t he Court of Appeals.” 354 Md. at 433. Irrespective of whether Mr. Smith’s right to a fair trial was inherently prejudiced, this case9

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.