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?

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

-CM