‘No-Communication’ Orders During Court Recesses and the Right to Counsel in Maryland

One of the most important fundamental rights each person in Maryland has is the right to legal representation in criminal matters. This right acknowledges just how important a robust defense is to a fair criminal process and how life-altering a criminal conviction can be. If you are facing a criminal charge (or under suspicion of a crime,) it is important to retain not just any attorney but rather the right Maryland criminal defense lawyer with the knowledge and experience necessary to provide you with the effective advocacy you need.

Because the right to counsel is so fundamental, a trial court order impinging it can be illegal and the basis for a successful appeal. Take, for example, the criminal trial arising from a Christmas night altercation at a Columbia convenience store.

The dispute turned into a stabbing that left one man injured, one man dead, and a Baltimore man on trial for second-degree murder and attempted second-degree murder. The accused asserted that he acted in self-defense.

At the end of the fourth day of the trial, the accused man testified. Because the prosecution’s cross-examination of the accused was not set to occur until the following day, the judge ordered the accused not to speak to anyone about his case… not even his own defense attorneys. The man acknowledged that he understood and law enforcement officers returned him to the Detention Center.

At the trial’s end, the jury found the man guilty of voluntary manslaughter, attempted second-degree murder, and two counts of assault. However, this past summer, the Supreme Court of Maryland reversed that conviction, concluding that the trial court’s no-communication order was unconstitutional as it deprived the accused of his fundamental right to legal counsel under both the Sixth Amendment to the U.S. Constitution and Articles 21 and 24 of the Maryland Declaration of Rights.

Scope and Duration are the Central Areas of Focus

The court looked to a 1976 U.S. Supreme Court case — Geders v. United States — with similar facts. In that drug trial, the court recessed overnight between the defense’s direct examination of the accused and the prosecution’s cross-examination, much like the Baltimore man’s circumstance. In the earlier federal case, the overnight recess lasted 17 hours and the judge told the accused not to speak to his lawyer “about anything.” This, the high court said, was an improper denial of the right to counsel and a violation of the Sixth Amendment.

More recently, a federal appellate court reached a similar outcome in a case involving a 13-hour overnight recess.

The central point that these rulings demonstrate is that, when it comes to no-communication orders covering overnight recesses occurring between a defendant’s testimony on direct examination and cross-examination, the key areas of analysis are the order’s scope and the duration of time. If, for example, an order bars communication only about a particular subject matter, it is potentially constitutional. If, as is periodically the case, a no-communication order spans only a one or two-hour lunch recess, it is potentially constitutional. However, the order in the Baltimore man’s case covered all subject matters and presumably spanned at least 12 hours. That, according to the court, was an illegal denial of the right to counsel.

Whether yours is a felony or misdemeanor case, the stakes are extremely high. For that reason, it is crucial to act swiftly to retain powerful legal counsel. The knowledgeable Maryland criminal defense attorneys at Anthony A. Fatemi, LLC have the knowledge, skills, and experience to provide you with both wise advice and zealous advocacy in your criminal matter. Contact us today at 301-519-2801 or via our online form to set up your consultation.

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