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.