By Isabelle Raquin

Clark v. State (No. 25. September Term 2022, opinion by Honorable Shirley M. Watts), decided on the last day of the term, is unusual and remarkable. This 132-page, 4-3 opinion is really a 4-4-3-3 decision which includes a majority opinion by Justice Watts, joined by Justices Hotten, Biran, and Eaves, a concurring opinion by Justice Biran joined by the same Justices as the majority (Justices Watts, Hotten, and Eaves), a first dissenting opinion by Chief Justice Fader joined by Justices Gould and Booth, and a second dissenting opinion by Justice Gould, joined by Chief Justice Fader and Justice Booth. The majority opinion is remarkable because it holds that defense counsel’s failure to object to the trial court’s improper order prohibiting a testifying defendant from communicating with counsel during an overnight recess resulted in the actual denial of the Sixth Amendment right to the effective assistance of counsel and the right to counsel under Article 21 and 24 of the Maryland Declaration of Rights.

Of particular note is Justice Biran’s concurring opinion regarding the Maryland Declaration of Rights. He writes: “[t]he right to counsel is arguably the most important right enshrined in the Maryland’s Constitution. I expect that, when the Supreme Court eventually decides whether the Sixth Amendment provides the same amount of protection as Article 21 and Article 24 do in this context, it will answer in the affirmative. But if I am wrong about that, then I will be proud that Maryland provides a more robust right to counsel in this context under Article 21 and Article 24.” There is indeed a lot to be proud about in the majority and concurring opinions.