MD Supreme Court to consider whether attorney’s silence nullifies right to a speedy trial

The Maryland Supreme Court will consider whether a defense attorney’s silence constitutes consent when a judge orders the client’s trial beyond the statutory 180-day period after first appearance to comply with the defendant’s constitutional right to a speedy trial.

Judges this month agreed to review a decision by the Maryland Court of Appeals that the silence constitutes at most “implicit consent” that does not satisfy a defendant’s express consent to waive the right to a speedy trial.

The High Court will also review a Maryland Court of Appeals ruling that found a defendant waived her right when she expressly acknowledged her allotted trial date, which was more than 180 days after her first appearance.

The Supreme Court’s review of the two appeals marks its latest review of the “Hicks Rule,” as the 180-day rule is commonly known.

Both appeals stem from the same Anne Arundel County Circuit Court case in which Garrick Powell and his co-defendant Lateekqua Jackson were tried on gun and drug charges.

Powell’s attorney was silent when the judge announced the trial date; Jackson, on the other hand, said “okay”.

The appeals court said the charges against Powell must be dismissed for violating the Hicks Rule, but the charges against Jackson are allowed because they waived the 180-day grace period.

A third co-defendant, Niran Henry, specifically accepted the late hearing date through an attorney.

“The outcome here may feel unsatisfactory and, in fact, contradicts standard anti-sandbagging principles, which normally require parties to raise errors under penalty of waiver,” Justice Douglas RM Nazarian wrote for the Court of Appeals in October.

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“Mr. Powell and his attorney have tacitly agreed on the trial date in this case — a date that misses Hicks’ deadline by exactly one day — and his silence ultimately serves as a reason for his release to be upheld, while his co-defendants appropriate procedures have come forward to reverse their terminations because they expressly consented to the date,” added Nazarian. “But this is the comparatively rare circumstance where explicit consent is required to circumvent a mandatory rule, no implied or implied consent.”

The state asked the Supreme Court to review the dismissal of the charges against Powell, while Jackson, through counsel, asked the judges to review the non-dismissal of the charges against her.

Henry did not appeal to the High Court.

In the state’s successful review request, Assistant Attorney General Andrew H. Costinett said a defense attorney could agree to a late trial date by tacitly accepting the trial schedule. Saying that silence is not consent could enable defense attorneys to “cross the line by implicitly ‘seeking’ a first hearing date that violates the Hicks Rule” by simply remaining silent, he added.

“This court should find that Powell implicitly sought a first hearing beyond Hicks,” Costinett wrote. “But even if this court disagrees with the state’s position on the merits, this case presents a close challenge, the resolution of which would provide useful guidance to trial courts and future litigants.”

Powell’s attorney, John N. Sharifi, unsuccessfully urged the Supreme Court to dismiss the state’s petition, stating that a defense attorney’s implied consent may be implied consent, but not express consent.

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Sharifi, a former private criminal attorney in Rockville, recently joined the Maryland Public Defender’s Appellate Division as a staff attorney.

In Jackson’s successful application for High Court review, Attorney Brian Zavin wrote that the mere acknowledgment by a defendant of a scheduled trial date does not constitute a waiver of the Hicks Rule.

It cannot be that “as long as the defendant is aware of when the court has scheduled a trial, the state is relieved of its burden of bringing him to trial within 180 days,” wrote Zavin, who heads the public defender’s appellate body Division. “In no way can Ms. Jackson be said to have made an election to stand trial after 180 days.”

The state, again represented by Costinett, in its unsuccessful response to Jackson’s petition, stated that their acknowledgment of the court date constituted an express consent and a waiver of the Hicks rule.

The Supreme Court will hear arguments in the two cases on June 1 and is expected to make its decisions by August 31. The cases are State of Maryland v. Garrick L. Powell Jr. and Lateekqua Jackson v. State of Maryland, No. 35 and September 34, 2022.

Powell, Jackson and Henry were arrested on February 3, 2021 after police allegedly found drugs and firearms in the car the three people were in.

The defendants made their first appearance just days before criminal trials resumed on April 26, 2021, after being suspended due to the COVID-19 pandemic. Based on the retrial date, the 180-day deadline for the defendant’s trial would have been October 25.

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But at the June 4 planning conference, an Anne Arundel County Circuit Court judge suggested an October 26 date.

Henry’s attorney said, “That’s fine, Judge,” and Jackson said, “Twenty-sixth, okay.”

But Powell and his attorney remained silent during the planning process, even after the judge said, “Okay, so, October 26 for a hearing.”

On Oct. 26, prosecutors requested a postponement because a police officer who searched the vehicle was ill and unable to testify, prompting the judge to ask for the first time whether a delay would violate the Hicks rule. Powell, Henry and Jackson’s attorney responded that the 180 days had already expired and moved that the charges be dismissed.

The motion was granted to all three defendants. The state appealed to the Court of Appeals, which only upheld the dismissal of the charges against Powell.