A Court May Reopen a Closed Post Conviction Proceeding to Address a Challenge to an Advisory Only Jury Instruction

By: Ashley N. Nelson-Raut, Associate Editor 

The Court of Appeals of Maryland held that advisory only jury instructions are not harmless error and the Unger v. State precedent should be applied retroactively. State v. Waine, 444 Md. 692, 122 A.3d 294 (2015). In addition, the court held that a defendant’s motion to reopen his or her post-conviction case after the Unger decision met the “interests of justice” standard required for reconsideration of the constitutionality of the defendant’s conviction. Id. at 695, 122 A.3d at 294.