EvidenceProf Blog

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

Wednesday, August 10, 2016

The Maryland AG Has Consistently Used Curtis to Prevent Defendants From Making IAC Claims on Direct Appeal

In his opinion granting Adnan a new trial, Judge Martin Welch noted that, pursuant to the opinion of the Court of Appeals of Maryland in Curtis v. State, fundamental rights like the right to the effective assistance of counsel cannot be waived by defendants unless the waiver was knowing and intelligent.  Judge Welch then found that Adnan had not knowingly and intelligently waived his claim that trial counsel was ineffective by failing to use the AT&T disclaimer to challenge the cell tower evidence.

In its Application for Leave to Appeal (ALA), the Maryland Attorney General claimed that "the standard for 'intelligent and knowing' waiver articulated by the Court of Appeals in Curtis v. State, 284 Md. 132 (1978), has never been applied to an ineffective assistance of counsel claim since Curtis was decided." As I noted on Monday, this claim is incorrect because the Court of Appeals of Maryland did just that in State v. Adams, 958 A.2d 295 (Md. 2008). What seems more troubling is that the Maryland Attorney General itself has claimed 8 times from 2007-2014 that Curtis' "intelligent and knowing" waiver standard applies to ineffective of counsel claims, and it has done so to prevent defendants from making such claims on direct appeal.

As I've noted before, a direct appeal is an appeal based on errors that are evident from the trial record while a collateral appeal, such as a PCR petition, is based on errors that are not evident from the trial record. Usually, claims of ineffective assistance of counsel (IAC) can only be raised on collateral appeal, but the line can get a bit blurry. For instance, in In re Parris W., the Court of Appeals of Maryland did allow a defendant to claim on direct appeal that his trial counsel was ineffective in his handling of prospective alibi witnesses.

Usually, however, a defendant is not able to make IAC claims on direct appeal. In its appellate brief in State v. Testerman (2007), the Maryland Attorney General argued against a defendant being able to make an IAC claim on direct appeal by arguing that

Raising a claim on direct appeal could forever prevent a defendant from having an evidentiary hearing on that claim in a post-conviction proceeding.[FN3]

FN3. Allowing direct review of ineffective assistance of counsel claims conceivably could penalize the defendant who prefers to take advantage of the opportunity for an evidentiary hearing under the Post Conviction Act, as well. If ineffective assistance of counsel claims are allowed on direct review, a post-conviction court could find that such a claim is waived by not having been raised on direct review. But see Curtis v. State, 284 Md. 132, 140 (1978) (petitioner must “intelligently and knowingly” waive his right to allege ineffective assistance of counsel.)

Since 2007, the Maryland Attorney General has made this same argument seven other times, most recently in Littleford v. State in 2014. Essentially, the Maryland Attorney General is arguing the following: (1) A defendant should not be able to raise an IAC claim on direct appeal; and (2) Allowing defendants to raise IAC claims on direct appeal could lead to defendants not being able to raise IAC claims on collateral appeal; but (3) The system is fair and defendants don't need to worry about not making IAC claims on direct appeal because Curtis says that IAC claims can only be waived "intelligently and knowingly."

In other words, the Maryland Attorney General's office has been relying upon Curtis for eight years to preclude defendants from raising IAC claims on direct appeal but is now trying to claim that Curtis doesn't apply to IAC claims.



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Posted by: Michael Byrnes | Aug 10, 2016 9:46:52 AM

I sure hope the Court of Special Appeals reads your blog.

Posted by: streetwriter | Aug 10, 2016 9:49:19 AM

Colin, Would you explain "intelligently and knowingly" in the context of Adnan and the fax cover sheet? Susan Simpson found the cover sheet years after the conviction, and after the first appeal. Is it really expected that Adnan could have "intelligently and knowingly" known that the fax cover sheet was significant to his defense? The state didn't seem to provide any explanation for why it believes this particular IAC claim was waived by Adnan.

Posted by: tim | Aug 10, 2016 11:02:30 AM

Doesn't "but see" mean that the case doesn't support the argument, and instead runs counter to the argument?

Posted by: steve | Aug 10, 2016 12:49:18 PM

Michael: Big oops.

streetwriter: I’m sure they will be aware of the pertinent precedent.

tim: A big point of Judge Welch’s opinion is that Adnan would not have been expected to find and understand the significance of the AT&T disclaimer.

steve: Exactly. That’s the point the State is making. They (1) tell COSA that they shouldn’t allow IAC claims on direct appeal because doing so would put defendants in a precarious position; and then (2) protect against a possible claim that defendants are already in a precarious position by pointing out the Curtis requires an intelligent and knowing waiver, meaning that defendants won’t be hurt by “failing” to raise IAC claims on direct appeal.

Posted by: Colin | Aug 10, 2016 1:30:05 PM

Let me remind everyone when they consider this development that not providing the ATT cover sheet to the defense was also an "oops".

Posted by: Daniel | Aug 10, 2016 1:56:52 PM

Right, but pointing to an adverse decision with a "but see" notation is a far cry from an example where they "used" Curtis. They're explaining the lay of the land based on published decisions.

Posted by: steve | Aug 10, 2016 2:27:24 PM

Daniel: Right, and that didn’t work out too well for them.

steve: You’re right, but the question is why they were using Curtis to explain the lay of the land. The answer is that they were using it to show why defendants shouldn’t be able to raise IAC claims on direct appeal.

Posted by: Colin | Aug 10, 2016 5:35:09 PM

Thank you, Colin. It seems to me that the Maryland AG's office is trying to make up law as it goes along. Just as it is unreasonable to believe Adnan might be innocent, it's just as unreasonable to believe that he isn't omniscient and the most cunning and calculating man to have ever lived, at least according to the State.

Posted by: tim | Aug 10, 2016 11:28:36 PM

Great news!

Posted by: Terrie | Aug 11, 2016 1:57:44 AM

Colin -- can you help us understand how this type of conduct (as well as conduct exhibited by Thiru during the PCR hearing) is allowed to happen where false or misleading information is presented to judges? This seems like a total violation of Adnan's Due Process rights...going back to a year being incorrectly added to Adnan's age in the arrest warrant so that he wasn't able to get bail at the first bail hearing. What options are available to people in this situation when their basic constitutional rights are violated like this?

Posted by: Jodi | Aug 11, 2016 7:45:58 AM

I'm still not sure I get why defendants can't raise an IAC claim on direct appeal. It seems like the answer is 'because.' From what I've understood from Curtis & Welch, you could raise IAC claims on many different issues (e.g. fax cover sheet/alibi witness/etc.), all of which are separate claims, and each of which you would have to separately and specifically waive to lose your bite at the apple. So, surely, it would make sense to raise a strong IAC claim on direct appeal, so as not to prolong the time taken to get someone out of jail. And, if you've missed an entirely separate yet significant IAC issue, and you've failed on earlier direct appeals, this new IAC claim could then be raised at a PCR? So, why the concern about prejudicing the defendant by raising a claim too early in the appeals process?

Posted by: Cupcake | Aug 11, 2016 8:54:05 AM

Oh snap!

Posted by: Mike | Aug 16, 2016 1:09:31 AM

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