Certiorari Granted from Sharply Divided COSA Over the Right to Counsel

By Isabelle Raquin

The Court of Appeals will hear argument in State v. Clark, 255 Md. App. 327 (2022), the latest of a series of postconviction cases involving whether a presumption of prejudice applies when a trial court orders a testifying defendant not to communicate with their counsel during a break in the trial. The question sharply divided the COSA, with the Hon. Kathryn Graeff writing for the majority that the U.S. Supreme Court’s presumption of prejudice for the deprivation of counsel did not apply where trial counsel failed to object and the defendant did not produce sufficient evidence at the postconviction hearing that he would have conferred with counsel but for the erroneous order.  In a lengthy dissent, the Hon. Douglas Nazarian concluded the importance of the fundamental right to counsel required the presumption of prejudice and that the defendant should not resurrect his right after the trial court’s order depriving him of such right, in order to demonstrate he has been prejudiced. 

This case turns on the application of the rule enunciated in Geders v. U.S., 425 U.S. 80 (1976) – a  case on direct appeal – to a postconviction case governed by the principles of Strickland v. Washington, 466 U.S. 668 (1984).  In Geders, the Supreme Court held that the trial court’s order preventing a defendant from consulting his counsel about anything during a 17-hour overnight recess between his direct and cross-examination deprived him of his right to the assistance of counsel guaranteed by the Sixth Amendment. In Geders, the trial attorney had objected to the Court’s order. Geders applied a presumption of prejudice and ordered a new trial.  But what if trial counsel does not object?  That is Mr. Clark’s case.  

The facts: Mr. Clark testified on his own behalf in a second degree murder case. After his direct testimony, but before the State’s cross-examination, the Court sua sponte directed him not to talk to anybody about the case, during the overnight recess. The Court emphasized that this order included Mr. Clark’s own attorney. Mr. Clark’s counsel did not object. Mr. Clark was subsequently convicted.  

The direct appeal: On direct appeal, Mr. Clark argued that the Court’s order denied him his Sixth Amendment right to counsel.  The Court of Special Appeals affirmed the conviction, having found that Mr. Clark’s counsel’s failure to object to the Court’s order did not preserve the issue for appellate review. 

The postconviction: Mr. Clark filed a petition for postconviction relief, arguing under the two-prong Strickland standard, that his trial counsel was ineffective when he failed to object to the trial court’s order, and that the failure to object prejudiced him because the court impugned on his constitutional right to counsel. At the postconviction hearing, trial counsel testified that he should have objected to the trial court’s order, but he did not have anything to say to his client during the overnight recess and his client, Mr. Clarke did not request to speak with him. The postconviction court granted relief and ordered a new trial, finding that there was no strategic reason for trial counsel not to object to the erroneous instructions and that the order prejudiced Mr. Clark because it deprived him of his Sixth Amendment right to counsel during the overnight recess. The State filed an application for leave to appeal, which the Court of Special Appeals granted.  

The majority opinion in COSA: The majority reversed the postconviction court’s ruling, concluding that the trial court’s instruction, by itself, was not an actual violation of Mr. Clark’s Sixth Amendment right to counsel. To show a deprivation of the right to counsel in this context, there must be a showing that the instruction actually prevented the defendant and defense counsel from communicating. In the context of a post-conviction proceeding, the burden is on Mr. Clark to establish an actual violation of his right to counsel. Here, Mr. Clark’s counsel did not object to the instruction because he had nothing to tell his client, and Mr. Clark, at the post-conviction hearing, did not testify that he would have talked to his counsel, absent the Court’s instruction. In the absence of a showing of an actual deprivation of the Sixth Amendment right to counsel, the defendant is not entitled to a presumption of prejudice. 

The dissenting opinion: In a 37-page opinion, Judge Nazarian reviews the relationship between a Geders violation and the Strickland standard in the context of a postconviction hearing. For the dissent, Mr. Clark’s case is identical to Geders, but for the fact that counsel for Mr. Clark did not object to the Court’s erroneous instruction. Thus, a Geders violation occurred when the Court’s instructed Mr. Clark not to consult with his attorney, and prejudice is presumed from a Geders violation. For the dissent, the majority opinion, however, adds as a new requirement, that Mr. Clark retroactively proves that he indeed intended to confer with counsel, to establish an actual violation of his right to counsel. Judge Nazarian writes: “Put another way, the majority holds that the Sixth Amendment didn’t entitle Mr. Clark to confer with his counsel during a murder trial—it entitled Mr. Clark to confer with his counsel only if he asked to. In the majority’s formulation, the court can take away a defendant’s right to counsel unless he proves that he planned to use it right then, never mind the court ordering him not to. Geders says otherwise […]”.  

On the writ of certioriari: The Court of Appeals will consider four questions: 1) As a matter of first impression, does requiring a criminal defendant to retroactively prove his desire to defy the trial court’s order against speaking with his attorney about his case during an overnight recess violate his constitutional right to counsel? 2) Does permitting counsel to neglect or waive his client’s right to speak with him during an overnight recess violate that client’s constitutional right to counsel? 3) Was the post-conviction court’s ruling that prejudice was found from trial counsel not preserving the issue for appeal correct? 4) Is not objecting to the violation of a criminal defendant’s right to counsel due to mere ignorance of the law deficient performance? 

These questions will be answered in the Court of Appeals in case number 25, September Term 2022. Stay tuned.

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