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Dentist loses post-conviction challenge

No right to counsel when seeking DNA evidence, testing, top court rules

Indigent convicts have no statutory right to counsel for post-conviction petitions seeking DNA evidence, Maryland’s top court ruled unanimously Tuesday.

The Court of Appeals’ decision upholds a former Bethesda dentist’s conviction and 20-year sentence for raping a sedated 15-year-old patient in 2001.

The decision stands in contrast to the court’s DeWolfe v. Richmond ruling last September, which found a state constitutional right to counsel at initial bail hearings before District Court commissioners.

It also backtracks on the plain language of a rule the court adopted in 2009, which says the state “shall” appoint counsel for an unrepresented indigent petitioner in DNA cases.

Despite its mandatory language, the rule was only supposed to give the court discretion to appoint counsel, Judge Shirley M. Watts wrote in the opinion published Tuesday.

The court reiterated its 2007 and 2009 rulings in Simms v. State and Arey v. State, respectively, which found no right to appointed counsel in the filing of a post-conviction petition. The court also cited Maryland Criminal Procedure Article Section 8-201 and the Judiciary’s rule for post-conviction petitions involving DNA, saying they give judges discretion to appoint counsel if they believe it “necessary to further the interest of justice.”

The decision affirmed the conviction and prison sentence of David E. Fuster, whom a Montgomery County Circuit Court jury found guilty of second-degree rape, child abuse and related crimes in 2003.

Fuster fled to Mexico, where U.S. law enforcement caught up to him four years later. He was sentenced in November 2007.

Acting without counsel, Fuster filed a petition for post-conviction relief, seeking DNA tests on the shoes and socks the girl wore to her dental appointment.

At a hearing on his petition, the prosecution said Fuster was not entitled to counsel. Montgomery County Circuit Judge Marielsa A. Bernard agreed and ultimately rejected Fuster’s petition, finding in part that the state had conducted a sufficient search for the socks and shoes without finding them.

Fuster appealed based, in part, on the judge’s failure to appoint counsel before the hearing.

In his appeal, Fuster was represented by Assistant Maryland Public Defender Bradford C. Peabody.

Peabody told the Court of Appeals that counsel must be appointed. He cited the language in Rule 4-707(b), which says that judges “shall appoint counsel within 30 days after the state has filed an answer” to a post-conviction petition.

But the high court rejected that interpretation.

‘Consistent and harmonious’

The Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure intended for Rule 4-707(b) to enforce the high court’s rulings that judges may appoint counsel, but are not obligated to do so, the court said.

“In light of Rule 4-707(b)’s history and this court’s holding in Simms and Arey, the logical conclusion is that, despite Rule 4-707(b)’s use of the word ‘shall,’ Rule 4-707(b) does not entitle an indigent petitioner to counsel for purposes of a petition under CP Section 8-201; instead, a trial court may ‘appoint counsel to represent a petitioner when the [trial] court believes [that] counsel would be necessary to further the interest of justice,” Watts wrote, quoting from Simms. “The result ensures that Rule 4-707(b) and this court’s precedent operate together as a consistent and harmonious body of law.”

The high court also found that Bernard did not abuse her judicial discretion by declining to appoint counsel for Fuster — in large part because he had not requested an attorney.

“A trial court does not abuse its discretion in not choosing whether to exercise the discretion to appoint counsel for a petitioner for purposes of a petition under CP Section 8-201 where the petitioner does not request the appointment of counsel in the petition,” Watts wrote.

According to trial testimony, Fuster assaulted the girl on Oct. 10, 2001, while she was under the influence of nitrous oxide, or laughing gas, during treatment for an abscess.

The Office of the Maryland Attorney General, which opposed Fuster’s appeal, stated in an email that “we’re reviewing the decision and considering our next steps.”

Peabody declined to comment on the court’s decision.


Case: David E. Fuster v. State of Maryland. CA No. 41, Sept. Term 2013. Reported. Opinion by Watts, J. Argued March 6, 2014. Filed April 22, 2014.

Issue: Do indigent convicts have a right to counsel for post-conviction petitions seeking DNA testing?

Holding: No; the Maryland criminal procedure statute and rules give judges discretion to appoint counsel if appointment “would be necessary to further the interest of justice.”

Counsel: Bradford C. Peabody for petitioner; Robert Taylor Jr. for respondent.

RecordFax #14-0422-20 (21 pages).