Maryland Court of Appeals Orders New Trial Due to Ineffective Assistance of Counsel for Counsel's Failure to Disclose a Conflict of Interest
On August 14, 2020, the Maryland Court of Appeals reinstated the post-conviction relief ordered by the Circuit Court for Frederick County, in Yaw Poku Podieh v. State of Maryland, finding that Mr. Podieh’s defense counsel was ineffective due to his ongoing relationship with the arresting officer in Mr. Podieh’s criminal case. Simultaneous to the pendency of the criminal case against Mr. Podieh, defense counsel was being personally sued by the arresting officer’s wife for his representation of her in her divorce proceedings against the officer. Agreeing with the post-conviction court, the Maryland Court of Appeals determined that this ongoing relationship created an actual conflict of interest. The Court explained that an actual conflict existed because counsel was embroiled as a defendant in ongoing litigation and one of the witnesses in that litigation was also the arresting officer in an unrelated criminal case involving counsel’s client. Counsel provided ineffective assistance by failing to ever inform Mr. Podieh of the civil suit pending against him in which the arresting officer was a witness, even though the civil suit and Mr. Podieh’s criminal cases were occurring simultaneously. This created a concurrent conflict because defense counsel’s interactions with the arresting officer in the criminal case could have bled into the civil suit and affected defense counsel personally, dividing his loyalties between his personal interests and those of his client.
In ordering relief to Mr. Podieh, the Maryland Court of Appeals explained that in order to determine whether an actual conflict exists, and prejudice to the defendant presumed, the conflict must adversely affect counsel’s representation, a circumstance-specific inquiry. To make this determination, the Court relied on the three-part test set forth in the United States Court of Appeals for the Fourth Circuit’s opinion in Mickens v. Taylor, which was adopted by the Maryland Court of Appeals in Taylor v. State. Under this test, the defendant must establish:
- There is a plausible alternative defense tactic that counsel could have pursued
- Such tactic was objectively reasonable under the circumstances,
- There exists a link between the conflict and the failure to pursue the tactic.
Satisfying this test from Taylor excuses a defendant from establishing Strickland prejudice. In Mr. Podieh’s case, the first and second prongs were satisfied because defense counsel failed to file motions to suppress in Mr. Podieh’s pending criminal cases, and filing a motion to suppress in a plain-smell drug possession case, such as this one, is objectively reasonable, if not expected. In regard to the third prong, the Court of Appeals agreed with Mr. Podieh’s argument that filing a motion to suppress in his case was inherently in conflict with defense counsel’s relationship with the arresting officer because in litigating a motion to suppress, defense counsel would have cross-examined the arresting officer and attacked his credibility – an inherently adversarial process. In stark contrast, in the civil case pending against defense counsel, counsel would have needed the officer to be a friendly witness to absolve him of wrongdoing. Maintaining a positive rapport with the officer for the sake of a positive outcome in the civil case was inherently in conflict with cross-examining him in Mr. Podieh’s criminal cases. Because counsel had a conflict that adversely affected the representation, in particular, casting doubt upon the integrity of the plea negotiations in Mr. Podieh’s cases, the Court of Appeals ordered Mr. Podieh a new trial.
Nathans & Biddle LLP is a highly respected advocate for individuals and businesses involved in a broad spectrum of white-collar criminal and civil disputes, forfeitures, criminal post-conviction proceedings, and attorney grievance matters. With offices in Baltimore, Annapolis, and Greenbelt, we represent clients across Maryland (both federal and state courts), the Washington D.C. area, and several other federal courts across the country.
To read the full opinion, in this case, follow this link: https://www.courts.state.md.us/data/opinions/coa/2020/31a19.pdf.