The Second Wig

The United States Court of Appeals for the Fourth Circuit remanded a denied habeas corpus petition to the district court to determine whether a constitutional violation had occurred

It would be “intolerable” to require a criminal defendant to surrender “one constitutional right . . . in order to assert another.” Simmons v. United States, 390 U.S. 377, 394 (1968). Yet that is what Raminder Kaur asserts occurred here. After her first criminal trial in Maryland state court was marred by ineffective assistance of counsel, Kaur moved successfully to set aside the verdict. During the proceedings on her motion for a new trial, the trial court ordered Kaur to turn over a significant amount of material to the State. That material included attorney work product and attorney-client privileged communications which revealed the existence of evidence previously unknown to the State. Kaur also testified in support of her motion and was subjected to a lengthy cross-examination.

The trial court declined to issue a protective order barring the State from relying upon the privileged material Kaur was ordered to produce during the motion for a new trial. The trial court also permitted the State to use the same prosecution team that opposed Kaur’s motion for a new trial in her second trial. The trial court also left open the possibility that the State could use Kaur’s testimony from the proceedings on her motion for a new trial to cross-examine her if she took the stand in her own defense. The second jury convicted Kaur once again.

On direct appeal from that conviction, the Maryland appellate court assumed that the trial court had erred by allowing the State to use the same prosecution team and to use knowledge it had gained during the motion for a new trial against Kaur in her second trial. Rather than order a third trial, however, the appellate court determined that Kaur suffered no prejudice either from the State’s use of the new evidence or from the threat that the State might be able to use Kaur’s testimony in the motion proceedings against her if she took the stand. Both conclusions were objectively unreasonable.

The State relied heavily on the new, privileged evidence it obtained during the proceedings on Kaur’s motion for a new trial in prosecuting Kaur a second time, and that new evidence harmed Kaur’s defense. In addition, the possibility that the State might use Kaur’s motion testimony to impeach her if she took the stand in her second trial also clearly harmed Kaur’s defense. It effectively prevented her from testifying, including about significant exculpatory evidence.

Though we conclude that the Maryland appellate court’s determination was objectively unreasonable, we cannot grant Kaur’s habeas petition at this point. Because the Maryland appellate court merely assumed (but did not conclude) that a constitutional right was violated, we vacate and remand to the district court to determine in the first instance whether a constitutional violation occurred.

The crime

On the morning of October 12, 2013, Preeta Gabba was shot and killed outside of her home on Crystal Rock Drive in Germantown, Maryland. The investigation into Gabba’s murder quickly focused on her ex-husband Baldeo Taneja and his wife Raminder Kaur. Taneja and Kaur were tried jointly in Maryland state court for Gabba’s murder.

After conviction at her first trial

Ten days after the first trial, Kaur filed a motion for a new trial on the basis of ineffective assistance of counsel. In support of her motion, Kaur submitted a detailed affidavit which she and her defense counsel Attorney Drew signed. The affidavit explained that Attorney Drew had failed in a number of ways to represent Kaur effectively, including by telling Kaur that because she was tried jointly with her husband Taneja, she would not be permitted to testify because of marital privilege. The affidavit explained that Kaur had wanted to testify at trial and would have done so had she not been misinformed by Attorney Drew. The affidavit also stated that Attorney Drew was unprepared for trial because he failed to meet with Kaur; failed to issue subpoenas for out-of-state evidence, including police reports detailing Taneja’s violence against Kaur; and did not provide notice of expert witnesses, leading to their exclusion from trial. Attorney Drew also did not identify or call failed to raise with the trial court Kaur’s lack of competency due to post-traumatic stress disorder she suffered from Taneja’s abuse.

The affidavit stated that, if she had testified, Kaur would have testified about Taneja’s emotionally and physically abusive behavior toward her during the course of their marriage, but particularly in the time leading up to the murder. She had wanted to testify that, the morning of the murder, she uncharacteristically overslept and awoke feeling unwell and disoriented. She had wanted to testify that she had no knowledge at the time of the shooting that there were guns in their car or that Taneja had planned to kill Gabba. She had wanted to testify about Taneja’s bizarre behavior that morning and about his sudden decision to return directly to Nashville.

The affidavit also stated that Kaur wanted to testify about two conversations she had with Taneja while they were being transported together before and during trial. According to the affidavit, in those conversations, Taneja told Kaur that he had killed Gabba, and that if Kaur remained silent at trial she would be set free. Taneja had admitted that on the night before the murder he had drugged Kaur so that she would oversleep the following morning. The affidavit went on to describe how Taneja drugged Kaur because he knew she would try to stop him from leaving the hotel to kill Gabba. Significantly, the affidavit also averred that Taneja told Kaur that he dressed in a women’s blouse and wig to disguise himself as a woman when he shot Gabba. 

At the post-trial hearing

During the proceedings on Kaur’s motion for a new trial, the State was represented by the same attorneys that prosecuted the first trial. The State immediately moved to subpoena all investigative and trial files belonging to Kaur’s defense counsel, Attorneys Drew and Mercer. At the hearing on the State’s motions to subpoena this evidence, Kaur asked the court to limit the materials she would be required to produce, arguing that State’s requests exceeded information relevant to her ineffective assistance of counsel claim. The trial court denied Kaur’s request and ordered Attorneys Drew and Mercer to turn over the defense files to the State.

Critically, the defense files from Kaur’s first trial included an email message from Attorney Mercer discussing how the defense could develop exculpatory evidence should the evidence of a second wig come to light. The State had previously been unaware that there was a second wig. At the time of Taneja and Kaur’s arrest, the police recovered from their car only one black and grey streaked Halloween wig from CVS. During the first trial, the State was unaware that plastic packaging found in the car had originally contained an entirely different, more realistic all-black wig that had been purchased from a costume store called Performance Studios.

A new trial was granted after a lengthy hearing

After she was granted a new trial, Kaur moved for a protective order seeking to prohibit the State from relying on the privileged information it obtained during the proceedings on her motion for a new trial. Kaur requested that the court bar the State from relying upon attorney-client privileged materials, including attorney-client communications and attorney work product. Kaur also requested that the State be required to use a different prosecution team in the new trial—one that had not been privy to the privileged evidence.

Denied

The trial court rejected Kaur’s motion for a protective order. The trial court concluded that, by filing a motion for a new trial based on ineffective assistance of counsel,  Kaur had waived attorney-client privilege. The trial court also concluded that Kaur’s concerns about disclosure of the defense’s trial strategy were unfounded. The trial court reasoned that the defense’s trial strategy would be different for the second trial and, in any event, both sides would have to show their trial strategy by disclosing witnesses.

…the court refused to bar the prosecution team that participated in the motion for a new trial from retrying the case. The trial court concluded that this was unnecessary to protect Kaur. The trial court gave significant weight to the State’s interest in using experienced trial counsel who had worked on the case for the previous two and a half years. As a result of the court’s ruling, the same trial team that prosecuted Kaur’s first trial and that opposed the motion for a new trial would prosecute Kaur at her second trial.

Her motion in limine was denied and a second trial ensued

At the second trial, the State revised its theory of the murder. Rather than maintaining that Kaur was the shooter, as it had done during the first trial, the State presented a new theory that Taneja may have shot Gabba with Kaur acting as an accomplice. Along with arguing that Kaur acted as an accomplice, the State also changed its presentation of the evidence. During the second trial, the State relied heavily on the fact there had been a second wig, which the State learned of only through the proceedings on Kaur’s motion for a new trial.

Taking the stand

Because the trial court had reserved ruling on whether the prosecution could rely upon Kaur’s testimony during the proceedings on the motion for a new trial, Kaur faced the prospect of the State using her testimony to impeach her if she took the stand. Accordingly, Kaur again declined to testify on her own behalf. Wary of yet another trial, the trial court questioned Kaur under oath, confirming that she understood that she had the right to testify and would not be prohibited from testifying about her communications with Taneja.

On appeal of the second trial conviction for first degree murder

In sum, the [Maryland] Appellate Court concluded that although the prosecution possessed knowledge of Kaur’s privileged communications and work product, Kaur failed to demonstrate that she suffered prejudice in her second trial as a result.

The Maryland and United States Supreme Courts both denied certiorari 

Having exhausted direct appellate review, Kaur filed an application for a writ of habeas corpus in the United States District Court for the District of Maryland under 28 U.S.C. Section 2254. The district court denied Kaur’s petition. It noted, however, that it was “sympathetic to Kaur’s dilemma,” and that “[t]here are appreciable differences between the two trials.” J.A. 4426 & n.6. Thus, the district court granted Kaur a certificate of appealability on the question: “was Kaur’s Sixth Amendment right to counsel violated when her second trial was conducted by a prosecution team that had access to the defense file from her first trial, obtained through subpoenas issued by the state during post-trial proceedings?” J.A. 4427.

The court here

The Appellate Court made multiple clear errors in this recitation of the factual record. The Appellate Court first erroneously stated that the State’s theory of the case was the same in both trials, that either Taneja or Kaur could have murdered Gabba “but that it was more likely Ms. Kaur.” J.A. 4453. That statement is clearly incorrect based on the evidentiary record.

The wig

The Appellate Court also mistakenly found relevant that none of the eyewitnesses saw the shooter wearing the “black and grey streaked wig.” J.A. 4453. The black and grey streaked wig was the only wig the State was aware of and raised during the first trial. It was the wig found in the back of Taneja and Kaur’s vehicle at the time of their arrest. That black and grey streaked wig, however, is not the wig that the Appellate Court should have considered as relevant to the eyewitness testimony. The relevant wig was the solid black wig purchased at Performance Studios. That was the second wig revealed through Kaur’s attorney-client privileged materials. This distinction is critical. It is true, as the Appellate Court noted, that “none of the eyewitnesses to the shooting testified that the shooter was wearing a black and grey streaked wig.” J.A. 4453. Instead, the eyewitnesses all testified that the shooter had dark hair. That is why the second wig overwhelmingly supported the State’s theory at the second trial. The second, solid black wig, which went missing after the murder, was consistent with the eyewitness accounts of a shooter with entirely dark hair. The Appellate Court thus ignored clear and convincing evidence that the second wig actually supported the State’s case.

Right to testify

The Appellate Court also rejected Kaur’s claim that she suffered prejudice because the prosecutors’ knowledge of her privileged information effectively precluded her from testifying in her own defense at her second trial. Here again, we begin with the clearly erroneous factual determinations made by the Appellate Court and then explain why the Appellate Court’s determination that Kaur was not prejudiced was objectively unreasonable. Before the second trial, Kaur filed a motion for a protective order and a motion in limine to limit the use of the testimony she had provided during the proceedings in support of her motion for a new trial. Although the trial court directed the State to cease reviewing the transcript from the proceedings, it permitted the prosecutors to rely upon their memory of what transpired at the hearing. The trial court also permitted the State to have an assistant locate relevant portions of the transcript and to use those portions to refresh the prosecutors’ memories of Kaur’s hearing testimony

Kaur’s inability to testify about these critical matters clearly prejudiced her defense. Kaur’s defense at her second trial turned on her ability to create reasonable doubt as to whether Taneja carried out the murder alone. Likewise, the State’s case hinged on proving that Kaur and Taneja planned the murder together. Kaur’s testimony would have directly supported her theory of defense and undermined the State’s case.

Had Kaur chosen to testify she would have placed herself at risk of being cross-examined with evidence that otherwise would have been protected by attorney-client privilege. The State told the trial court that evidence it obtained during the proceedings on Kaur’s motion for a new trial, particularly her admission that she accompanied Taneja to Performance Studios to purchase the solid black wig, would have been “fabulous” evidence in support of its case. J.A. 1489. The State would not have obtained that evidence but for the proceedings on the motion for a new trial, and Kaur was reasonable to presume that the State would have an opportunity to use the evidence to impeach her if she had testified at her second trial.

Kaur’s inability to testify in her own defense without the threat of privileged evidence being used by the State on cross-examination was prejudicial. The Appellate Court’s failure to recognize this clear prejudice to Kaur’s Sixth Amendment right was objectively unreasonable. Kaur reiterated her argument to the trial court on multiple occasions over several years leading up to and during her second trial. 

Associate Justice Sotomayor had concurred on the denial of the writ of certiorari but noted

Although I join the Court’s decision to deny certiorari, I write separately to address a concerning feature of this petition: The prosecutors who tried this case had extensive knowledge of defense counsel’s confidential communications with the defendant, petitioner Raminder Kaur. For the reasons stated below, I fear that, in this case, the criminal justice system failed to live up to its highest ideals.

Remedy

Having concluded that the Appellate Court’s determination of the facts was objectively unreasonable and that Kaur was prejudiced by what the Appellate Court assumed to have been a violation of her Sixth Amendment rights, we remand to the district court to determine in the first instance whether there was indeed a violation of the Sixth Amendment. See Cone v. Bell, 556 U.S. 449, 476 (2009); Gordon v. Braxton, 780 F.3d 196, 202 (4th Cir. 2015).

On remand, however, AEDPA’s formidable limitations give way. Valentino v. Clarke, 972 F.3d 560, 576 (4th Cir. 2020). AEDPA permits a federal court “to bypass § 2254(d)’s limitations on relief when a state court has refused to ‘adjudicate’ a procedurally proper claim ‘on the merits.’ Id. Because the Appellate Court never reached the merits of Kaur’s Sixth Amendment claim, federal habeas review on that issue is not subject to the deferential standard that applies under AEDPA to claims that were adjudicated on the merits in the state court proceeding. 28 U.S.C. § 2254(d); Cone, 556 U.S. at 472. Thus, the district court must review de novo the question of whether a constitutional violation occurred. See, e.g., Cone, 556 U.S. at 472; Rompilla v. Beard, 545 U.S. 374, 390 (2005) (de novo review where state courts did not reach question); Wiggins v. Smith, 539 U.S. 510, 534 (2003) (same).

The unreported decision of the (then) Maryland Court of Special Appeals is linked here. (Mike Frisch)