EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, July 11, 2016

Does Court of Appeals Precedent Imply It's Futile to Reverse Judge Welch's Waiver Ruling?

The opinion of the Court of Appeals of Maryland in Jourdan v. State, 341 A.2d 388 (Md. 1975), is another important one on the issue of knowing and intelligent waiver of fundamental rights. As I noted last week, Judge Welch found that Adnan did not knowingly and intelligently waive his IAC/cell tower claim by failing to raise it in his first postconviction relief petitions. Jourdan seems to stand for the proposition that there would be no point in the Court of Special Appeals or Court of Appeals reversing this ruling.

In Jourdan, during the course of James Jourdan, Jr.'s

trial on charges of storehouse breaking and forgery, the prosecuting attorney became ill and could not carry on. Shortly thereafter, another attorney in the State's Attorney's office appeared and requested a continuance or, if the defendant would consent, a mistrial. The trial judge, sua sponte, declared a mistrial.

Under the Double Jeopardy Clause, one jeopardy attaches, there cannot be a retrial of the defendant on the same charges unless there was manifest necessity for declaring a mistrial. In Jourdan's case, jeopardy attached once the jury was empaneled, which means that he could not be reprosecuted unless the prosecutor's illness created manifest necessity for declaring a mistrial.

Defense counsel, however, did not inform Jourdan of this fact before or during his retrial, which ultimately resulted in his conviction. Thereafter, Jourdan brought a postconviction relief petition, claiming that the the Double Jeopardy Clause precluded his reprosecution. The State countered that Jourdan have waived this claim by not raising it before or during his retrial. In response, the Court of Appeals of Maryland wrote the following:

In its appeal to the Court of Special Appeals, the State made no claim that Jourdan waived his double jeopardy contention because his attorney failed to raise the issue before or at the beginning of the second trial, and the Court of Special Appeals stated that 'we shall assume, but do not specifically so decide,' that the issue was not waived...And in this Court the State does not contend that the double jeopardy question was waived. The Post Conviction Procedure Act, as amended by Ch. 442 of the Acts of 1965, adopts the definition of waiver of a constitutional right set forth in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 146 A.L.R. 357 (1938), and Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963), namely that the petitioner himself 'intelligently and knowingly' failed to raise the issue before or at his trial....There is no support in the record in this case for holding that Jourdan before or at the time of his second trial was aware of and understood the possible defense of double jeopardy; the evidence is all to the contrary. Consequently, we shall proceed on the basis that there was no waiver because of the failure to raise the double jeopardy issue prior to or at the beginning of Jourdan's second trial.[FN5]

FN5. Of course, a holding of waiver would only present the question, decided by Judge Taylor, of whether the attorney's failure to raise the double jeopardy issue, after being alerted to it by the Assistant State's Attorney at the first trial, amounted to a denial to Jourdan of the effective assistance of counsel in violation of the Sixth Amendment. (emphasis added).

On the one hand, you might say that the Jourdan case is irrelevant because the Court of Appeals did not specifically resolve the issue of whether Jourdan knowingly and intelligently waived his Double Jeopardy Clause claim.* On the other hand, footnote 5 seems to indicate the futility of the Court of Special Appeals or Court of Appeals reversing Judge Welch's opinion on the waiver issue. Either (1) Adnan did not waive the cell tower/IAC issue; (2) Adnan did waive the cell tower/IAC issue due to ineffective assistance of appellate counsel, meaning that Adnan would still eventually be entitled to relief. So, what would be the point of making Adnan go through his procedural paces, if he has a winning argument, regardless?


*And the Court of Appeals ended up rejecting Jourdan's substantive Double Jeopardy Clause claim.



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But if a court finds that a defendant "intelligently and knowingly" waived a claim, how could that defendant's attorney be held to have provided ineffective assistance? Wouldn't it be presumed that the defendant discussed it with his attorney and told the attorney that he was choosing not to raise the claim?

Posted by: Ann | Jul 11, 2016 10:51:29 AM

What does exactly constitute “knowingly and intelligently” waving one’s rights? Does the accused have to sign a form? Or should there be an evidence or record that s/he was explicitly warned of the consequences of such a waiver?

I am asking this because most accused, unless criminal attorneys themselves, would not know anything about rules of procedure, legal doctrines or consequences of their actions (or inactions) or those of their attorneys. Most place their fate entirely in the hands of their defence team and hope that the team acts in their best interest.

If the attorney fails to bring it up at the first opportunity, and it is subsequently discovered that the accused had no idea what in the world was going on, wouldn’t it automatically lead to an ineffective assistance claim? Judge Welch emphasized that it was impossible for someone without a high school diploma to “knowingly and intelligently” waive his right, but I don’t think the level of one’s education should weigh a factor in deciding this claim. One might be as intelligent as having a PhD, but know very little about their rights or claims that they can bring up in their defence.

Posted by: Nick | Jul 11, 2016 11:29:44 AM

It does amaze me that, due to the passage of time/an unwise decision/the existence of a previous court hearing, something that is unquestionably a prejudicial violation of a fundamental right can be ignored by courts, and a person could stay in jail for the rest of their lives. Justice? Really?

Posted by: Cupcake | Jul 11, 2016 11:39:32 AM

Ann: I think the court is drawing a dichotomy between the defendant knowingly and intelligently waiving a “fundamental rights” claim and his attorney knowingly and intelligently waiving a “fundamental rights” claim. In other words, if neither the defendant nor his attorney were aware of a “fundamental rights” claim at the time of an initial PCR petition, then obviously, the defendant did not knowingly and intelligently waive that claim. In footnote 5, I think the court is dealing with a hypothetical in which defense counsel is aware of a “fundamental rights” claim but never informs the defendant.

In other words, imagine a scenario in which Justin Brown saw the AT&T disclaimer in 2010 but unilaterally decided not to raise it without informing Adnan. Is that waiver? The Jourdan court seems to be saying that the issue is moot because either (1) Adnan didn’t waive the claim; or (2) Adnan “waived” the claim based on IAC of PCR counsel, which would still entitle him to relief.

Nick: I will probably do a separate post on this, but here seems to be the money quote from McElroy: “As to those fundamental rights, intelligent and knowing waiver requires that the petitioner's knowledge of the right and the petitioner's personal waiver of the right be reflected on the record.” The COA subsequently cited to this holding in Holmes (2007), Grandison (2012), and Smith (2015). The question in Adnan’s case, then, would be whether there is anything on the record (court transcripts, testimony, documentary evidence) that indicates Adnan had knowledge of the AT&T waiver and its implications before 2015. I don’t think any such “on the record” evidence exists.

Cupcake: This is why I think the language in McElroy is so key. If there were documentary evidence that Adnan and JB strategically decided not to raise the disclaimer issue in 2010 (so as not to highlight the importance of the Leakin Park pings), you could see why Adnan shouldn’t get a second bite at the apple. But if there’s no evidence that Adnan was aware of the disclaimer/its implications, he should be able to raise the claim belatedly.

Posted by: Colin Miller | Jul 11, 2016 11:54:44 AM

Colin-- I will totally understand if you don't approve this as its a bit of a rant, but I had to get it out. I just can't get past what I'm learning about our totally broken, unbelievable criminal "justice" system.

I'm still shocked to learn that such an obvious miscarriage of justice, lead by lazy and corrupt police work and clear prosecutorial misconduct can happen and our judicial system makes it almost impossible to correct those rights violations. The lawyers and the judges are all picking through the tiniest minutia of legal precedence and things that may or may not have happened in other cases in the past that are totally unrelated to what actually happened to Adnan, trying to decide if an innocent man that was railroaded by as a 17-year-old kid, by a broken and corrupt system, represented by a clearly ineffective defense attorney, should get a chance at a fair trial or just spend the rest of his life in prison for a crime he didn't commit because there's no legal precedence for letting innocent people out of prison once they're convicted, regardless of how that conviction came to be.

How did our system get this petty and broken??

How does it make any sense to continue to argue whether or not Adnan's case may have triggered some obscure legal opportunity that might allow him to maybe get a chance at a fair trial? Why is it so difficult to make that happen? Who does it help to make it so difficult for the wrongfully convicted to get justice? Are we really so unconcerned about justice that we've created a system where innocent people are just stuck in prison? Why is it okay for it to be this difficult to simply ensure a fair trial when it's so obvious that it didn't happen??

Posted by: Eric Wolff | Jul 12, 2016 4:22:17 AM

Eric Wolff - the US "justice" system suffers from being run as a political entity, rather than a purely legal and judicial entity.

A system where important positions are filled not on merit, but by a popularity contest, means that elected judicial officials put their own reputation above the truth, and above justice.

Posted by: Squatch | Jul 13, 2016 6:56:56 PM

Eric Wolff, I agree with your thoughts and questions 100%; what thinking person wouldn't? I thought this again with Undisclosed Season 2 Ep 1, when we're told that the Innocence Project brought the case to the UD team because Joey was "out of options". Out of options? If a person's conviction was the result of a complete breakdown of any aspect of the process, why should their options be limited? Sure, I guess we don't want to clog the court system, but the more we learn about the number of probably innocent people in prison the more we need to stop burying the redress system in minutia and meaningless rules.

Posted by: Beth | Jul 15, 2016 5:59:18 PM

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