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Md. high court will weigh constitutionality of bar on lawyer-client talk

Maryland’s top court will consider whether a defendant’s constitutional right to counsel is violated by a judge’s order that he or she refrain from speaking to his or her attorney during an overnight trial recess.

The Court of Appeals this month agreed to review a lower court decision that the defendant must show he or she would have in fact consulted with the attorney, but for the order, for the Sixth Amendment right to have been violated.

The high court will hear Damien Clark’s appeal of the Court of Special Appeals’ reinstatement of his 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.

But the Court of Special Appeals said Clark suffered no harm from the order because he had not shown he would have spoken to his attorney. The court also cited the lawyer’s post-conviction testimony that they had nothing to talk about.

In his successful request for high court review, Clark stated through his appellate attorney that the right to counsel includes a right to confer with counsel, which cannot be silenced by a judicial order or waived by anyone but the defendant.

“The constitutional right to counsel belongs to the defendant alone and … is not contingent upon, and exists separate from, the attorney-client relationship,” attorney Andrew Cryan wrote to the Court of Appeals.

“It does not matter what trial counsel thought Mr. Clark wanted to discuss,” added Cryan, of Justice Beyond Bars in Randallstown. “What matters is that Mr. Clark would have been able to speak with trial counsel about his case after his direct testimony. That was Mr. Clark’s constitutional right.”

Assistant Maryland Attorney General Jer Welter countered that a deprivation of the right to confer with counsel requires some proof that the defendant would have exercised that right.

“For instance, the defendant does not necessarily have to disclose what they would have discussed with counsel,” Welter wrote in his unsuccessful request that the high court deny Clark’s appeal.

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

“Nor does the defendant need to show how, if at all, the defendant’s trial strategy was affected by the lack of communication or that the outcome of the trial would have been different if they had been permitted to engage in the desired consultation,” Welter added. “Rather, there must simply be a showing that the no-communication directive actually did deprive the defendant of consultation with counsel: a showing that the defendant would have met with counsel but for the court’s instruction, such that the instruction actually prevented the defendant and defense counsel from communicating. There was no such showing here.”

The Court of Appeals is scheduled to hear arguments in the case in March. The high court is expected to render its decision by Aug. 31 in Damien Gary Clark v. State of Maryland, No. 25, September Term 2022.

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 Court of Special Appeals disagreed in a reported 2-1 decision in July.

“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.”

Graeff was joined by retired Judge J. Frederick Sharer, who was specially assigned to hear Clark’s appeal.

Judge Douglas R.M. Nazarian dissented, saying 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.”

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