Appellate review rests on a reassuring premise: when a trial court gets something wrong, a higher court can correct it. Lawyers examine transcripts, scrutinize evidence, identify legal errors, prepare briefs, and ask appellate judges to determine whether the law was properly applied. The process is expensive, time-consuming, and intellectually demanding, but it offers the possibility that an erroneous judgment will not become the final word.

Of course, appellate judges are human beings, and human beings make mistakes. No reasonable person expects judicial infallibility. What we should expect, however, is that when an identifiable error appears in an appellate opinion, and that error is specifically brought to the court’s attention, there exists some meaningful opportunity to correct it. Otherwise, appellate review risks becoming less an instrument for correcting judicial mistakes than a mechanism for making them permanent.

Unfortunately, Maryland appellate history provides some rather uncomfortable illustrations of this problem. In at least two published decisions, Maryland’s highest court expressly documented circumstances in which the intermediate appellate court was alerted to an error or unnecessary judicial directive through a motion for reconsideration, declined to alter its ultimate disposition, and was subsequently reversed. The cases raise a question extending well beyond the litigants involved: What happens when the institution entrusted with correcting judicial error becomes the institution whose error needs correcting?

When an Appellate Court Gets the Record Wrong

Consider Bowman v. State, 314 Md. 725 (1989), a criminal appeal involving a mandatory enhanced sentence of twenty-five years without eligibility for parole. The prosecution had represented that the defendant possessed two prior convictions for armed robbery, thereby satisfying the statutory requirements for enhanced punishment. The trial judge accepted that representation and imposed the sentence. When the defendant appealed, the Court of Special Appeals accepted the same characterization of his criminal record and affirmed.

There was just one problem. The record did not establish two prior convictions for armed robbery.

The certified documents established one prior armed-robbery conviction. The other relevant convictions were for robbery and assault with a deadly weapon. Although ordinary robbery qualified as a crime of violence under Maryland law, the District of Columbia’s statutory definition encompassed conduct that did not necessarily qualify under Maryland’s enhanced-sentencing statute. Consequently, the actual nature of the second conviction mattered considerably. Without competent proof that the offense satisfied Maryland’s statutory requirements, the mandatory sentence could not lawfully stand.

The defendant filed a motion for reconsideration identifying the discrepancy. To its credit, the Court of Special Appeals acknowledged the problem sufficiently to withdraw its original opinion and issue another. But rather than reverse, it once again affirmed the sentence, this time reasoning that the circumstances surrounding the robbery and accompanying weapons conviction permitted an inference that the robbery qualified as a violent offense.

Maryland’s Court of Appeals was considerably less impressed. In its published decision, it observed that the intermediate appellate court had initially followed the prosecutor and trial judge down the same “primrose path.” Addressing the revised opinion, the Court characterized the intermediate court’s reasoning as a “gaggle of inferences.” It ultimately determined that the evidence was legally insufficient to support the enhanced sentence, reversed the relevant portion of the judgment, and ordered resentencing.

Consider what occurred. The prosecution misunderstood the record. The trial court accepted that misunderstanding. The intermediate appellate court repeated it. When the mistake was brought to its attention, the appellate court corrected its description of the convictions but preserved the result through a new explanation that Maryland’s highest court ultimately rejected as legally insufficient. The defendant obtained relief only because another court agreed to examine what had already survived an appeal and reconsideration.

The troubling aspect of Bowman is not simply that the intermediate appellate court initially got the record wrong. It is that, after the mistake was expressly identified, the court withdrew its opinion, constructed a different rationale, and reached precisely the same result. Maryland’s highest court was sufficiently unimpressed to characterize the revised reasoning as a “gaggle of inferences” before reversing.

One might reasonably wonder whether reconsideration served its intended purpose of testing the correctness of the judgment or merely provided another opportunity to justify it. Fortunately for Bowman, the Court of Appeals granted certiorari and corrected the error.

Most petitions for certiorari, however, are denied. For the considerably less fortunate litigants whose cases receive no further review, an erroneous appellate judgment may become final not because its reasoning survives meaningful scrutiny, but because the judicial system has simply run out of courts willing or authorized to scrutinize it.

When Even Both Parties Cannot Persuade an Appellate Court

A different but equally revealing problem arose in Anne Arundel County v. 808 Bestgate Realty, LLC, 479 Md. 404 (2022). The dispute concerned transportation impact fee credits sought by a developer for improvements made to a county road. The developer maintained that the applicable county ordinance required the credits, while the County disagreed. After administrative proceedings and judicial review, the Court of Special Appeals concluded that the relevant statutory language supported the developer’s position.

One might reasonably expect the appellate dispute to have ended there. Instead, the intermediate appellate court ordered additional proceedings to determine whether the improvements were “site-related,” an issue it had raised on its own initiative. The problem was that neither party maintained that the improvements fell within that category. In fact, both agreed they did not.

The parties therefore filed a joint motion for reconsideration, expressly stipulating that the improvements were not site-related and explaining why the proposed remand was unnecessary. This was hardly the familiar spectacle of a disappointed litigant insisting that the appellate court had misunderstood everything. Both adversaries agreed that the court had ordered proceedings to resolve an issue that was not actually disputed.

The Court of Special Appeals denied reconsideration anyway.

Both parties subsequently petitioned the Court of Appeals for further review. The state’s highest court agreed that the remand was unnecessary and reversed that portion of the intermediate appellate judgment. Given the parties’ agreement concerning the improvements, it found no reason to require another round of administrative proceedings on the issue.

The implications are rather remarkable. Two opposing litigants, who presumably had spent considerable time and money disagreeing with one another, managed to accomplish the minor miracle of agreeing that additional litigation was unnecessary. They jointly informed the appellate court of that fact. The court nevertheless left its directive intact, and intervention by a higher tribunal was required to eliminate the needless remand.

The absurdity is difficult to overstate. The intermediate appellate court ordered additional proceedings to resolve an issue that neither party disputed. When both adversaries jointly informed the court that it was wrong, the court simply denied reconsideration anyway. Apparently, even agreement between opposing litigants—the very outcome courts routinely encourage—was insufficient to persuade the court to correct its own error.

Only intervention by Maryland’s highest court eliminated the unnecessary proceedings. This is hardly a reassuring illustration of judicial efficiency or meaningful error correction. Rather, it demonstrates how an appellate court can impose needless burdens, decline an opportunity to correct them, and leave the affected parties with little practical alternative beyond pursuing yet another appeal. Had the Court of Appeals declined review, the unnecessary remand would have remained in place, regardless of how readily the problem could have been resolved.

The Problem With Reconsideration

Maryland Rule 8-605 provides a procedure through which litigants may seek reconsideration of an appellate decision. It serves an important purpose. Courts should be able to correct errors without requiring every disappointed litigant to pursue review in an even higher tribunal. In theory, reconsideration provides an opportunity for a court to examine a potentially overlooked fact, controlling authority, or legal argument before its decision becomes final.

But reconsideration is not an appeal as of right to a fresh panel of judges. Ordinarily, the same court that rendered the decision determines whether it should be reconsidered. That is understandable from an administrative standpoint, but it introduces an obvious institutional difficulty: the people being asked to identify the mistake are the same people who previously concluded that their reasoning was correct.

Human beings are naturally susceptible to confirmation bias. Once we reach a conclusion, we tend to interpret subsequent information in ways that reinforce it. We become invested in our reasoning, defend our premises, and sometimes reinterpret contrary evidence rather than abandon an established belief.

Lawyers demonstrate these tendencies regularly. Judges, being drawn from the same species, are presumably no exception.

This does not mean reconsideration is futile. Courts do grant such motions, withdraw opinions, correct mistakes, and modify judgments. Nor does every denial suggest institutional defensiveness. Many reconsideration motions simply lack merit.

The difficulty arises when a genuine problem has been identified and the litigant has no entitlement to independent review of the court’s refusal to correct it.

In both Bowman and Bestgate, the litigants ultimately obtained correction through discretionary review by Maryland’s highest court. That is an important qualification: neither case represents an error that became permanently uncorrectable. Quite the opposite. They demonstrate that the appellate system can work as intended when an additional court examines the disputed ruling.

But that success exposes the underlying vulnerability. What becomes of comparable errors in cases where certiorari is denied? What happens when the amount in controversy cannot justify another appeal, when the litigant has exhausted available resources, or when the legal issue simply fails to attract the attention of the Supreme Court of Maryland? We cannot know how many erroneous appellate decisions survive under those circumstances. The absence of further review does not establish that a decision was wrong, but neither does it establish that the decision was right.

For anyone considering a Maryland petition for writ of certiorari, this distinction is particularly important. The Supreme Court of Maryland exercises discretionary jurisdiction over most petitions seeking review of intermediate appellate decisions. A litigant may identify an error, present a persuasive argument, and nevertheless fail to obtain further review. Certiorari is not designed to guarantee correction of every erroneous judgment. Its discretionary nature necessarily leaves some appellate decisions without further examination.

The Peculiar Culture of Judicial Infallibility

Will any of this change? Probably not. The judiciary operates within a professional culture characterized by extraordinary deference to judicial authority. Some of that deference is appropriate, even necessary. Courts cannot function effectively if their rulings are treated as optional suggestions.

But respect for judicial authority can gradually become something quite different: an institutional reluctance to acknowledge that judicial pronouncements, however authoritative, remain the work of fallible human beings.

Judges are routinely addressed with ceremonial respect, their reasoning is dissected cautiously, and even pointed disagreements are traditionally wrapped in elaborate expressions of professional courtesy. Attorneys, meanwhile, have every professional incentive to participate in that culture. After all, openly criticizing the institution whose members will decide your next case is hardly an inspired business strategy. No lawyer in his right mind would write an article like this.

Yet the arrangement creates an obvious problem. Lawyers are among those best positioned to identify judicial shortcomings, but they are also professionally dependent upon maintaining productive relationships with the judiciary. The resulting silence need not arise from cowardice or dishonesty. It may simply reflect rational self-interest. For many practitioners, doing the work, accepting the result, and moving on is an entirely sensible approach to professional survival. There comes a point, however, when merely going through the motions and politely accepting whatever the system produces ceases to be intellectually satisfying.

Judicial independence is indispensable to the rule of law, but independence should not be confused with insulation from criticism. Respect for the judiciary should arise from the quality and integrity of its work, not from an expectation that lawyers will remain publicly silent when judicial reasoning deserves scrutiny. Courts routinely subject attorneys’ arguments to exacting criticism. There is nothing inherently improper about subjecting judicial reasoning to the same intellectual scrutiny.

Finality Is Not Truth

There is a deeper philosophical distinction at the center of this discussion. The legal system is a human creation. Its rules, procedures, hierarchies, and judgments exist because human beings have constructed institutions and assigned them authority. That authority is real in its consequences. Courts can transfer property, terminate parental rights, impose financial liabilities, and deprive individuals of liberty. But the practical force of a judicial pronouncement does not establish that the pronouncement accurately describes reality.

The irony is difficult to ignore. We created appellate courts precisely because trial judges are fallible. We created reconsideration procedures because appellate judges are fallible. We created courts of last resort because even intermediate appellate courts are fallible. Yet somewhere along this hierarchy, the opportunity for meaningful correction necessarily ends, and whatever errors remain become part of a judgment the parties must accept. The system does not thereby establish that those errors have ceased to exist. It merely establishes that the system is finished addressing them.

For those engaged in Maryland appellate litigation, this distinction is more than an academic curiosity. It is a reminder that the judicial system, however elaborate its procedural safeguards, remains an imperfect human enterprise. Its legitimacy depends not upon pretending that its participants are infallible, but upon recognizing the limitations of their judgments and preserving meaningful opportunities for correction wherever reasonably possible.

A court may have the final word. It does not necessarily have the correct one. And reality has never required a court’s permission to exist.

The Final Word

A stable society is desirable, if only because it allows us to spend our brief experience of existence doing something more enjoyable than surviving chaos. But stability requires a justice system competent enough to maintain public confidence in its legitimacy. Perfect justice is a fiction. What society requires is a sufficiently credible approximation of justice that people continue to believe the system works.

Call it the illusion of justice, if you like. The illusion is useful. It is also remarkably fragile.

That illusion is threatened when the very courts entrusted with correcting judicial errors leave their own obvious mistakes uncorrected. Complex legal questions will inevitably produce reasonable disagreements, and even conscientious judges will sometimes reach incorrect conclusions. But there is nothing particularly complex about accurately reading the record, nor anything intellectually defensible about ordering further litigation over an issue both adversaries agree is undisputed.

Judicial integrity is not demonstrated by never being wrong. It is demonstrated by the willingness to acknowledge an error and correct it. When appellate courts instead allow plainly erroneous reasoning or unnecessary judicial directives to stand, they undermine the public confidence upon which their authority ultimately depends.

The illusion of justice can survive honest judicial mistakes. What it cannot indefinitely survive is a judiciary more concerned with having the final word than with getting it right.

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