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.
Summary: Clark reversed the Appellate Court of Maryland’s 2-1 decision which had, itself, reversed the postconviction court’s judgment granting Clark a new trial for a Sixth Amendment violation. Clark generated two dissents, with the principal dissent by Justice Gould, over the meaning of the phrase “actual denial.” While the majority held that an unobjected to and uncorrected no-communication order constitutes an actual denial of the right to counsel under Geders v. U.S., 425 U.S. 80 (1976), regardless of whether the defendant proves that he would have spoken with counsel but for the improper order, Justice Gould believes that “actual denial” requires a showing that the improper order, in fact, prevented actual attorney/client communications. Chief Justice Fader wrote the other dissent, primarily focusing on the majority’s decision to interpret the state constitution claims without briefing and argument.
The facts: At trial for second-degree murder, Mr. Clark testified on his own behalf. 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 under Geders. 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. Mr. Clark’s counsel did not. The ACM 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 that, under the two-prong Strickland standard, 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. Clark 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. The State filed an application for leave to appeal, which the ACM granted.
The majority opinion in ACM: 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. For the ACM, 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 ACM: Judge Nazarian would have found a Geders violation when the Court instructed Mr. Clark not to consult with his attorney. Prejudice is presumed from a Geders violation. Judge Nazarian writes: “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 […]”.
The majority opinion in the SCM: The SCM held that, given the length and scope of the no-communication order, and trial counsel’s lack of objection which permitted the order to go into effect, the order presented a serious impediment to Mr. Clark’s right to consult with counsel in violation of the Sixth Amendment and Articles 21 and 24 of the Maryland Declaration of Rights. Under the framework set forth in Strickland, prejudice is presumed: “[g]iven the duration of the order (which covered a lengthy overnight recess) and the scope of the order (which applied to all communications about the case), the order prevented communication between Mr. Clark and trial counsel and constituted the actual denial of the assistance of counsel in violation of the Sixth Amendment and the Maryland Declaration of Rights. Thus, prejudice is presumed.” Mr. Clark did not need to show or demonstrate that he wanted to confer or would have conferred with his counsel during the overnight recess but for the trial court’s order. Of note is the Majority’s discussion that the right to counsel under Article 21 of the Maryland Declaration of Rights, in post-conviction cases, is broader than the Sixth Amendment right to counsel and that Article 24 is broader than both Article 21 and the Sixth Amendment.
The concurring opinion by Justice Biran: Justice Biran wrote separately to explain why it was appropriate for the Majority to base its decision partly on the Maryland Declaration of Rights. despite lack of briefings and arguments. Justice Biran compares this case with Leidig v. State, 475 Md. 181 (2021), in which the SCM held that the United States Supreme Court’s failure to provide a conclusive answer to a Sixth Amendment Confrontation Clause question warranted the SCM’s answering it under the confrontation provision of Article 21’s confrontation provision. Because the United States Supreme Court has not addressed the important question presented in Clark – that of the violation of the right to counsel in the post-conviction context, it is appropriate for the SCM to address it.
Chief Justice Fader’s Dissenting Opinion: Chief Justice Fader would have ruled that there was no actual denial of the right to counsel under the Sixth Amendment. He would not have reached the issue under the Maryland Declaration of Rights, absent supplemental briefing and oral arguments.
Justice Gould’s Dissenting Opinion: In a lengthy dissent, Justice Gould explained that he would hold, that under Strickland, if defense counsel’s alleged deficient performance is the failure to object to a trial court’s improper no-communication order, the defendant does not enjoy a presumption of prejudice without showing “some” evidence that counsel’s failure to object “either prevented communication or created a chilling effect on such communications.” (Dissent, p. 33). Justice Gould reasoned that the structural error rule under Geders applied only in the context of a direct appeal involving a preserved claim of error. Were it otherwise, the trial court would be deprived of the opportunity to cure the error.