Sixth Amendment violation in Maryland

2015Where it was the attorney who failed to give the deportation advice, moreover, the attorney was deemed to have rendered ineffective assistance of counsel under the two-pronged Sixth Amendment test of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

2015Where it was the attorney who failed to give the deportation advice, moreover, the attorney was deemed to have rendered ineffective assistance of counsel under the two-pronged Sixth Amendment test of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

2023See Leidig, 475 Md. at 241 n.25 (observing that, “[i]f the Supreme Court subsequently interprets the Sixth Amendment Confrontation Clause to provide greater protection than we afford to a criminal defendant under Article 21, Maryland courts will, of course, be bound to apply such a new Sixth Amendment standard”). -4- I do not want to waste anybody’s time.

2023See Leidig, 475 Md. at 241 n.25 (observing that, “[i]f the Supreme Court subsequently interprets the Sixth Amendment Confrontation Clause to provide greater protection than we afford to a criminal defendant under Article 21, Maryland courts will, of course, be bound to apply such a new Sixth Amendment standard”). -4- I do not want to waste anybody’s time.

2023In Geders, 425 U.S. at 86 , the Supreme Court reversed the Fifth Circuit’s conclusion that no Sixth Amendment violation resulted from the no-communication order because, despite the objection, it could “discern no actual harm and [was] convinced that - 50 - there was none”—reasoning that the Fifth Circuit adopted from the Second Circuit’s conclusion of no prejudice in another case because the defendant and counsel never “indicate[d] that they did in fact have something to discuss[.]” See Fink, 502 F.2d at 9 (quoting Leighton, 386 F.2d at 823 ) (cleaned up).

2023And although the Supreme Court recognized that defense counsel and defendants often use overnight recesses to discuss the status of the case, trial strategies, plea bargain offers, and other matters, id. at 88, neither the Supreme Court nor this Court has ever held that the Sixth Amendment requires defense counsel to use an overnight recess to discuss such matters, regardless of the circumstances.

2005So even though Ring expressly abstained from ruling on any ‘Sixth Amendment claim with respect to mitigating circumstances,’ we conclude that Ring requires a jury to make this finding as well: ‘If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.’ ” Id. at 460 (citations and footnotes omitted).

2005So even though Ring expressly abstained from ruling on any `Sixth Amendment claim with respect to mitigating circumstances,' we conclude that Ring requires a jury to make this finding as well: `If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.'" Id. at 460 (citations and footnotes omitted).

2026Longus, 416 Md. at 452 ; see also Watters v. State, 328 Md. 38, 45 (1992) (“the public may only be 27 constitutionally excluded from a trial . . . pursuant to a narrowly tailored order necessary to protect an overriding state interest.”) This Court has recognized that not every courtroom closure rises to the level of a Sixth Amendment violation.

2026Longus, 416 Md. at 452 ; see also Watters v. State, 328 Md. 38, 45 (1992) (“the public may only be 27 constitutionally excluded from a trial . . . pursuant to a narrowly tailored order necessary to protect an overriding state interest.”) This Court has recognized that not every courtroom closure rises to the level of a Sixth Amendment violation.

2022This Court found that 8 See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska Ct. App. 2015) (“When the State presents evidence that a defendant committed multiple different acts that could each support a criminal conviction, the court is required to instruct the jury that [it] must be factually unanimous as to which act the defendant committed.”) (footnote omitted); Williams v. United States, 981 A.2d 1224, 1228 (D.C. 2009) (“[W]hen a single count encompasses two (or more) factually separate criminal incidents, the Sixth Amendment requirement of a unanimous verdict obliges the judge to instru

2022This Court found that 8 See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska Ct. App. 2015) (“When the State presents evidence that a defendant committed multiple different acts that could each support a criminal conviction, the court is required to instruct the jury that [it] must be factually unanimous as to which act the defendant committed.”) (footnote omitted); Williams v. United States, 981 A.2d 1224, 1228 (D.C. 2009) (“[W]hen a single count encompasses two (or more) factually separate criminal incidents, the Sixth Amendment requirement of a unanimous verdict obliges the judge to instru

2022This Court found that 8 See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska Ct. App. 2015) (“When the State presents evidence that a defendant committed multiple different acts that could each support a criminal conviction, the court is required to instruct the jury that [it] must be factually unanimous as to which act the defendant committed.”) (footnote omitted); Williams v. United States, 981 A.2d 1224, 1228 (D.C. 2009) (“[W]hen a single count encompasses two (or more) factually separate criminal incidents, the Sixth Amendment requirement of a unanimous verdict obliges the judge to instru

2022This Court found that 8 See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska Ct. App. 2015) (“When the State presents evidence that a defendant committed multiple different acts that could each support a criminal conviction, the court is required to instruct the jury that [it] must be factually unanimous as to which act the defendant committed.”) (footnote omitted); Williams v. United States, 981 A.2d 1224, 1228 (D.C. 2009) (“[W]hen a single count encompasses two (or more) factually separate criminal incidents, the Sixth Amendment requirement of a unanimous verdict obliges the judge to instru

2022This Court found that 8 See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska Ct. App. 2015) (“When the State presents evidence that a defendant committed multiple different acts that could each support a criminal conviction, the court is required to instruct the jury that [it] must be factually unanimous as to which act the defendant committed.”) (footnote omitted); Williams v. United States, 981 A.2d 1224, 1228 (D.C. 2009) (“[W]hen a single count encompasses two (or more) factually separate criminal incidents, the Sixth Amendment requirement of a unanimous verdict obliges the judge to instru

2022This Court found that 8 See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska Ct. App. 2015) (“When the State presents evidence that a defendant committed multiple different acts that could each support a criminal conviction, the court is required to instruct the jury that [it] must be factually unanimous as to which act the defendant committed.”) (footnote omitted); Williams v. United States, 981 A.2d 1224, 1228 (D.C. 2009) (“[W]hen a single count encompasses two (or more) factually separate criminal incidents, the Sixth Amendment requirement of a unanimous verdict obliges the judge to instru

2022This Court found that 8 See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska Ct. App. 2015) (“When the State presents evidence that a defendant committed multiple different acts that could each support a criminal conviction, the court is required to instruct the jury that [it] must be factually unanimous as to which act the defendant committed.”) (footnote omitted); Williams v. United States, 981 A.2d 1224, 1228 (D.C. 2009) (“[W]hen a single count encompasses two (or more) factually separate criminal incidents, the Sixth Amendment requirement of a unanimous verdict obliges the judge to instru

2022This Court found that 8 See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska Ct. App. 2015) (“When the State presents evidence that a defendant committed multiple different acts that could each support a criminal conviction, the court is required to instruct the jury that [it] must be factually unanimous as to which act the defendant committed.”) (footnote omitted); Williams v. United States, 981 A.2d 1224, 1228 (D.C. 2009) (“[W]hen a single count encompasses two (or more) factually separate criminal incidents, the Sixth Amendment requirement of a unanimous verdict obliges the judge to instru

2022This Court found that 8 See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska Ct. App. 2015) (“When the State presents evidence that a defendant committed multiple different acts that could each support a criminal conviction, the court is required to instruct the jury that [it] must be factually unanimous as to which act the defendant committed.”) (footnote omitted); Williams v. United States, 981 A.2d 1224, 1228 (D.C. 2009) (“[W]hen a single count encompasses two (or more) factually separate criminal incidents, the Sixth Amendment requirement of a unanimous verdict obliges the judge to instru

2022This Court found that 8 See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska Ct. App. 2015) (“When the State presents evidence that a defendant committed multiple different acts that could each support a criminal conviction, the court is required to instruct the jury that [it] must be factually unanimous as to which act the defendant committed.”) (footnote omitted); Williams v. United States, 981 A.2d 1224, 1228 (D.C. 2009) (“[W]hen a single count encompasses two (or more) factually separate criminal incidents, the Sixth Amendment requirement of a unanimous verdict obliges the judge to instru

2019See Gibbons v. Savage, 555 F.3d 112, 121 (2d Cir. 2009) (exclusion of defendant’s mother from courtroom during afternoon of first day of jury selection was too trivial to violate right to public trial), cert. denied, 558 U.S. 932 ; Peterson v. Williams, 85 F.3d 39, 41, 44 (2d Cir. 1996) (twenty minute closure while defendant testified was “too trivial” to constitute Sixth Amendment violation), cert. denied, 519 U.S. 878 ; People v. Bui, 183 Cal. App. 4th 675, 686-87, 689 (Cal. Ct. App. 2010) (exclusion of three people for forty minutes during voir dire was de minimus).

2010See Peterson, 85 F.3d at 41, 42, 44 (20 minute closure while defendant testified was “extremely short” and “too trivial” to constitute Sixth Amendment violation); United States v. Al-Smadi, 15 F.3d 153, 154-55 (10th Cir.1994) (rejecting public trial violation, in part, because 20 minute closure was “brief’); People v. Bui, 183 Cal.App.4th 675, 686-87, 689 , 107 Cal.Rptr.3d 585 (Cal.Ct.App.) (exclusion *423 of three people for 40 minutes during voir dire was de minimis and did not violate defendant’s constitutional right to a public trial).

2019See Gibbons v. Savage, 555 F.3d 112, 121 (2d Cir. 2009) (exclusion of defendant’s mother from courtroom during afternoon of first day of jury selection was too trivial to violate right to public trial), cert. denied, 558 U.S. 932 ; Peterson v. Williams, 85 F.3d 39, 41, 44 (2d Cir. 1996) (twenty minute closure while defendant testified was “too trivial” to constitute Sixth Amendment violation), cert. denied, 519 U.S. 878 ; People v. Bui, 183 Cal. App. 4th 675, 686-87, 689 (Cal. Ct. App. 2010) (exclusion of three people for forty minutes during voir dire was de minimus).

2010See Peterson, 85 F.3d at 41, 42, 44 (20 minute closure while defendant testified was “extremely short” and “too trivial” to constitute Sixth Amendment violation); United States v. Al-Smadi, 15 F.3d 153, 154-55 (10th Cir.1994) (rejecting public trial violation, in part, because 20 minute closure was “brief’); People v. Bui, 183 Cal.App.4th 675, 686-87, 689 , 107 Cal.Rptr.3d 585 (Cal.Ct.App.) (exclusion *423 of three people for 40 minutes during voir dire was de minimis and did not violate defendant’s constitutional right to a public trial).

2005The Court stated: “there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.” Id. at 311, 768 A.2d 656 (quoting Scarpa v. DuBois, 38 F.3d 1, 12 (1st Cir.1994) (citations omitted)).

2005The Court stated: “there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.” Id. at 311, 768 A.2d 656 (quoting Scarpa v. DuBois, 38 F.3d 1, 12 (1st Cir.1994) (citations omitted)).

1979Significantly, however, in evaluating the “reason for delay” factor of the balancing test set forth in Barker v. Wingo, 407 U. S. 514, 531 , 92 S. Ct. 2182, 2192 (1972), that court reiterated the elementary principle that under the Sixth Amendment requirement, the fact that an accused is incarcerated in another jurisdiction does not excuse the State from its duty to provide a prompt trial.

1979Significantly, however, in evaluating the “reason for delay” factor of the balancing test set forth in Barker v. Wingo, 407 U. S. 514, 531 , 92 S. Ct. 2182, 2192 (1972), that court reiterated the elementary principle that under the Sixth Amendment requirement, the fact that an accused is incarcerated in another jurisdiction does not excuse the State from its duty to provide a prompt trial.

2021See, e.g., Moon, 300 Md. 354 ; Wildermuth v. State, 310 Md. 496 (1987); State v. Jones, 311 Md. 23 (1987); Chapman v. State, 331 Md. 448 (1993); Simmons v. State, 333 Md. 547 (1994).