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Order barring attorney-client talk doesn’t violate 6th Amendment, Md. appeals court rules

A criminal defendant’s constitutional right to counsel is not violated by a judge’s order that he or she refrain from speaking to his or her attorney during an overnight trial recess, a sharply divided Maryland appeals court ruled Thursday.

In its reported 2-1 decision, the intermediate Court of Special Appeals said the defendant must show that he or she would have in fact consulted with the attorney but for the order for there to have been a violation of the Sixth Amendment right.

“We hold that, although an order to the defendant not to discuss his or her testimony with anyone during an overnight recess is improper, it does not, by itself, constitute a deprivation of the right to counsel,” Judge Kathryn Grill Graeff wrote for the majority.

“Rather, to show that the instruction resulted in a violation of the defendant’s Sixth Amendment right to counsel, there must be some evidence that there was an actual deprivation of counsel,” Graeff added. “This evidence may be in the form of an objection to the court’s instruction or some other evidence showing that the defendant wanted to speak with counsel and would have done so absent the instruction.”

The court issued its ruling in reinstating Damien Clark’s voluntary-manslaughter conviction in the stabbing death of James Fallin Jr. and the attempted second-degree murder of Warner Jackson at a Columbia food mart on Christmas Day 2017.

Clark’s conviction had been overturned post-verdict based on the argument that his trial counsel was ineffective for having failed to object to the no-communication order.

The appellate court said Clark suffered no harm by the order because he had not shown he would have spoken to his attorney if the order had been withdrawn.

The Court of Special Appeals noted its decision runs counter to the U.S. Supreme Court’s 1976 ruling in Geders v. United States that a defendant was denied the right to counsel by a judge’s similar no-communication-overnight order.

But the Court of Special Appeals said the Geders decision is not absolute.

The Supreme Court subsequently held in Perry v. Leeke in 1989 that an order barring a testifying defendant from speaking with counsel during a brief break between direct and cross-examination does not violate the Sixth Amendment, the Court of Special Appeals said.

Graeff was joined in the 20-page majority opinion by retired Judge J. Frederick Sharer, who was specially assigned to hear Clark’s appeal.

In a 38-page dissent, Judge Douglas R.M. Nazarian said a judge’s order barring discussion between an attorney and client is in all cases a violation of the Sixth Amendment because the right to counsel has no “conditional terms.”

“Under Geders and the cases that follow it, Mr. Clark’s Sixth Amendment rights were violated, in real terms and in constitutional terms, when the court wrongly forbade him from conferring with counsel,” Nazarian wrote. “The deprivation happened when the court ordered it, and certainly no later than the following morning, when the overnight recess ended. This is because the right to counsel was Mr. Clark’s, not his counsel’s to waive or neglect away.”

The Maryland attorney general’s office declined to comment on the Court of Special Appeals decision.

Clark’s appellate lawyer, Andrew D. Cryan of Randallstown, did not immediately return a message Thursday seeking comment on the ruling and any plans to seek review by the Court of Appeals.

Howard County Circuit Judge Timothy J. McCrone delivered the controversial order after Clark had testified in his own defense and the prosecution was preparing to cross-examine him the following day at the February 2019 trial. McCrone told Clark that “you can’t talk to anybody about the case this evening … . You can’t talk to your attorney about the case.”

Clark’s trial attorney did not object to the instruction.

The jury found Clark guilty and he was sentenced to 50 years in prison.

The conviction was overturned and a new trial ordered after a post-conviction proceeding last year concluded that his attorney’s failure to object to the judge’s instruction constituted ineffective assistance of counsel.

The state then sought review by the Court of Special Appeals.

The appellate court issued its decision in State of Maryland v. Damien Gary Clark, No. 1614, September Term 2021.