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.

-CM