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The Maryland Supreme Court will consider whether a criminal defense attorney’s silence constitutes consent when a judge schedules the client’s trial beyond the statutory 180-day deadline after the initial appearance to comply with the defendant’s constitutional right to a speedy trial.
The justices this month agreed to review a Maryland Appellate Court decision that the silence at most provides “implied consent,” which fails to satisfy the explicit consent required for a defendant to waive the speedy trial right.
The high court will also review a Maryland Appellate Court ruling that a defendant waived the right when she expressly acknowledged her assigned trial date, which was held more than 180 days past her initial appearance.
The Supreme Court’s consideration of the two appeals will mark its latest examination of the “Hicks rule,” as the 180-day requirement is generally known.
Both appeals arise from the same Anne Arundel County Circuit Court case, in which Garrick Powell and his co-defendant Lateekqua Jackson were facing trial on gun and drug charges.
Powell’s attorney remained silent when the judge announced the trial date; Jackson, by contrast, said “okay.”
The Appellate Court said the charges against Powell had to be dismissed because of the Hicks rule violation, but the charges against Jackson were permitted to stand because she had waived the 180-day deadline.
A third co-defendant, Niran Henry, expressly accepted the late trial date through counsel.
“The result here may feel unsatisfying, and indeed to contradict the usual anti-sandbagging principles that normally require parties to raise errors under penalty of waiver,” Judge Douglas R.M. Nazarian wrote for the Appellate Court in October.
“Mr. Powell and his counsel acquiesced silently to the trial date in this case – a date that misses the Hicks deadline by exactly one day – and his silence ends up serving as the reason that his dismissal is affirmed while his co-defendants, who spoke up during the relevant proceedings, have their dismissals reversed for agreeing expressly to the date,” Nazarian added. “But this is the comparatively rare circumstance where express consent is required to circumvent a mandatory rule, not implied or tacit consent.”
The state sought Supreme Court review of the dismissal of charges against Powell, while Jackson asked the justices through counsel to review of the non-dismissal of charges against her.
Henry did not appeal to the high court.
In the state’s successful review request, Assistant Attorney General Andrew H. Costinett said a defense attorney can consent to a too-late trial date via silent acceptance of the trial schedule. To say silence is not consent could enable defense attorneys to “cross the line into implicitly ‘seeking’ a first trial date that violates the Hicks rule” by simply remaining silent, he added.
“This court should hold that Powell implicitly sought a first trial date beyond Hicks,” Costinett wrote. “But even if this court disagrees with the state’s position on the merits, this case presents a close call, the resolution of which would provide useful guidance to trial courts and future litigants.”
Powell’s attorney, John N. Sharifi, urged the high court in vain to deny the state’s petition, stating a defense attorney’s “quiet acquiescence may be implied consent, but not express.”
Sharifi, a former private criminal defense attorney in Rockville, recently joined the Maryland Public Defender’s appellate division as a staff attorney.
In Jackson’s successful petition for high court review, attorney Brian Zavin wrote that a defendant’s mere acknowledgment of a scheduled trial date does not constitute a waiver of the Hicks rule.
It cannot be the case that “so long as the defendant evidences an awareness of when the court has scheduled a trial, the state is relieved of its burden to bring them to trial within 180 days,” wrote Zavin, who heads the public defender’s appellate division. “In no way can Ms. Jackson be said to have made an election to be tried after 180 days.”
The state, again represented by Costinett, stated in its unsuccessful response to Jackson’s petition that her acknowledgment of the trial date constituted express consent and waiver of the Hicks rule.
The Supreme Court will hear arguments in the two cases June 1 and is expected to render its decisions by Aug. 31. The cases are State of Maryland v. Garrick L. Powell Jr. and Lateekqua Jackson v. State of Maryland, Nos. 35 and 34 September Term 2022.
Powell, Jackson and Henry were arrested on Feb. 3, 2021, after police allegedly found drugs and firearms in the car the three occupied.
The defendants had their initial appearance just days before the April 26, 2021, resumption of criminal trials after they were suspended amid the COVID-19 pandemic. Based on the resumption date, the 180-day deadline for the defendant’s trial would have been Oct. 25.
But at the scheduling conference on June 4, an Anne Arundel County Circuit Court judge suggested a date of Oct. 26.
Henry’s attorney said, “That’s fine, Judge,” and Jackson said, “Twenty-sixth, okay.”
But Powell and his attorney remained silent during the scheduling proceeding even after the judge said, “Okay, so, October 26th for trial.”
On Oct. 26, the prosecution moved for a postponement because a police officer who had searched the vehicle was ill and could not testify, prompting the judge to ask for the first time whether a delay would violate the Hicks rule. Counsel for Powell, Henry and Jackson responded that the 180 days had already expired and moved to have the charges dismissed.
The motion was granted as to all three defendants. The state appealed to the Appellate Court, which upheld only the dismissal of charges against Powell.
