Clark v. State

Damien Gary Clark v. State of Maryland, No. 25, September Term, 2022 RIGHT TO COUNSEL – NO-COMMUNICATION ORDER – ACTUAL DENIAL OF ASSISTANCE OF COUNSEL – PREJUDICE – Supreme Court of Maryland* held that trial counsel’s failure to object to trial court’s order prohibiting communication between defendant and counsel during overnight recess in criminal trial, without any curative action, resulted in actual denial of assistance of counsel in violation of Sixth Amendment to United States Constitution and, under Strickland v. Washington, 466 U.S. 668 (1984), prejudice is presumed. Supreme Court of Maryland held that where defendant alleges ineffective assistance of counsel based on trial counsel’s failure to object to no-communication order preventing communication between trial counsel and defendant during overnight recess in criminal trial, presumption of prejudice is warranted under Articles 21 and 24 of Maryland Declaration of Rights, independent of Sixth Amendment to United States Constitution. Supreme Court of Maryland declined to adopt “actual deprivation” standard, which would require that, where trial court issues no-communication order preventing communication between defendant and trial counsel during overnight recess, as a condition precedent, postconviction petitioner must prove that petitioner would have actually spoken with counsel in order to establish actual denial of assistance of counsel and therefore be entitled to presumption of prejudice. Such approach is inconsistent with Sixth Amendment to United States Constitution, Articles 21 and 24 of Maryland Declaration of Rights, Supreme Court of United States’s holdings in Strickland, Geders v. United States, 425 U.S. 80 (1976), and Perry v. Leeke, 488 U.S. 272 (1989), and Supreme Court of Maryland’s case law. * At the time of the grant of the petition for a writ of certiorari in this case, the Supreme Court of Maryland was named the Court of Appeals of Maryland.

At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. Circuit Court for Howard County Case No. C-13-CR-18-000001 Argued: March 3, 2023 IN THE SUPREME COURT OF MARYLAND* No. 25 September Term, 2022 ______________________________________ DAMIEN GARY CLARK v. STATE OF MARYLAND ______________________________________ Fader, C.J. Watts Hotten Booth Biran Gould Eaves, JJ. ______________________________________ Pursuant to the Maryland Uniform Electronic Legal Opinion by Watts, J. Materials Act (§§ 10-1601 et seq. of the State Biran, J., concurs.** Government Article) this document is authentic. Fader, C.J., Booth and Gould, JJ., dissent. 2024.04.26 ______________________________________ 12:08:24 -04'00' Filed: August 31, 2023 Gregory Hilton, Clerk *At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland.

The name change took effect on December 14, 2022. **Two opinions received the votes of the same four Justices in this case. One is by Justice Shirley M. Watts, which Justice Michele D. Hotten, Justice Jonathan Biran, and Justice Angela M. Eaves join. Justice Watts’s opinion has been designated the Majority Opinion in this case. The other opinion has been designated the Concurring Opinion of Justice Biran, which Justice Watts, Justice Hotten, and Justice Eaves join.

In this case, we must determine whether trial counsel’s failure to object to a trial court’s order prohibiting any consultation about the case, i.e., a no-communication order, between Damien Gary Clark, Petitioner, and trial counsel during an overnight recess prior to the final day of testimony in Mr. Clark’s murder trial resulted in the actual denial of the assistance of counsel, as guaranteed by the Sixth Amendment, such that prejudice is presumed under the second prong of the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). This determination is necessary to resolve Mr. Clark’s contention that he was provided ineffective assistance because of trial counsel’s failure to object to the no- communication order by the trial court. If Mr. Clark was denied the assistance of counsel in violation of the Sixth Amendment, under the framework set forth by the Supreme Court of the United States in Strickland concerning the presumption of the prejudice, Mr. Clark need not show prejudice; rather, prejudice would be presumed. On the other hand, if there was no actual denial of the assistance of counsel, Mr. Clark must prove both deficient performance and prejudice under Strickland.

On postconviction review, the Circuit Court for Harford County ruled that the no- communication order, and trial counsel’s failure to object, denied Mr. Clark the assistance of counsel in violation of the Sixth Amendment and presumed prejudice, ordering a new trial. The Appellate Court of Maryland1 reversed the judgment of the circuit court, reasoning that no “actual deprivation” of the assistance of counsel occurred, and concluded 1 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland. The name change took effect on December 14, 2022. that Mr. Clark could not show prejudice. See State v. Clark, 255 Md. App. 327 , 331, 345, 347, 279 A.3d 1121 , 1123, 1131-32 (2022).

Under the Appellate Court’s approach, Mr. Clark was required to demonstrate that he desired or wanted to speak with counsel during the overnight recess and that as a result of the no-communication order he was “actually deprived” of the opportunity to do so. Id. at 341-43, 345 , 279 A.3d at 1129-31 (citation omitted). We hold that, given the length and scope of the no-communication order, preventing communication between Mr. Clark and trial counsel about the case, and trial counsel’s lack of objection which permitted the order to go into effect, the order presented a serious impediment to Mr. Clark’s right to consult with counsel in violation of the Sixth Amendment and Articles 21 and 24 of the Maryland Declaration of Rights and, under the framework set forth in Strickland, prejudice is presumed. We conclude that Mr. Clark did not need to show or demonstrate that he wanted to confer or would have conferred with his counsel during the overnight recess but for the trial court’s order as a condition precedent to the presumption of prejudice due to an actual denial of the assistance of counsel.

Given the duration of the order (which covered a lengthy overnight recess) and the scope of the order (which applied to all communications about the case), the order prevented communication between Mr. Clark and trial counsel and constituted the actual denial of the assistance of counsel in violation of the Sixth Amendment and the Maryland Declaration of Rights. Thus, prejudice is presumed. The record shows no strategic or other value to trial counsel’s failure to object, and the failure to safeguard Mr. Clark’s right to consult with counsel for such an extended -2- period of time during such a critical stage of the trial was error. As such, the circuit court correctly concluded that trial counsel’s failure to object was objectively unreasonable and that counsel’s performance was deficient.

We reach the same conclusion. Accordingly, we reverse the judgment of the Appellate Court of Maryland and uphold the circuit court’s order of a new trial for Mr. Clark, as trial counsel’s performance was deficient and Mr. Clark was prejudiced. BACKGROUND Trial and Direct Appeal On April 18, 2018, in the Circuit Court for Howard County, Mr. Clark was charged with second-degree murder, attempted second-degree murder, and first- and second-degree assault resulting from an altercation in a convenience store between him and two other men. During the fight, Mr. Clark wounded the two men with a knife, resulting in one’s death.

At trial, Mr. Clark raised the issue of self-defense. On the fourth day of trial, February 14, 2019, Mr. Clark testified. Mr. Clark’s direct- examination concluded at the end of the day, and he was due to return to the witness stand the following day for cross-examination. Before adjourning, the trial judge instructed Mr. Clark that he could not to speak to anyone about the case, including his own lawyers, prior to resumption of his testimony: THE SHERIFF: Sir, why don’t you go back to your counsel?

THE COURT: And, Mr. Clark, before you do. [MR. CLARK]: Yes, sir. THE COURT: You can’t talk to anybody about the case this evening even Mr. -3- Garcia and Ms. Mantegna.[2] Okay? [MR. CLARK]: Okay.

THE COURT: You can’t talk to anybody. It sounds counter intuitive. [MR. CLARK]: Yes. THE COURT: You can’t talk to your own attorney about the case. [MR.

CLARK]: I understand, sir. THE COURT: Okay. You’re welcome to step down. Go back to [the] trial table. [MR.

CLARK]: Okay. All right. Mr. Clark’s trial counsel failed to object to the instruction from the trial court. The next day, Mr. Clark underwent cross-examination, and the defense rested.

On February 19, 2019, the jury found Mr. Clark guilty of voluntary manslaughter, attempted second-degree murder, and two counts of second-degree assault. The jury acquitted Mr. Clark of second-degree murder and first-degree assault. The trial court sentenced Mr. Clark to 50 years of incarceration. On June 29, 2020, the Appellate Court of Maryland affirmed the convictions in an unreported opinion.

See Damien Gary Clark v. State of Maryland, No. 486, Sept. Term, 2019, 2020 WL 3498463 , at ¹ (App. Ct. Md. June 29, 2020). Addressing Mr. Clark’s contention that the trial court deprived him of his Sixth Amendment right to counsel with its instruction, the Appellate Court concluded that Mr. Clark’s argument was not preserved because of the lack of an objection, despite acknowledging that the contention had merit. 2 Mr. Garcia and Ms. Mantegna were Mr. Clark’s two trial counsel. -4- See id. at ⁷-8. The Appellate Court declined to “hold on direct appeal . . . that the failure to object constitutes ineffective assistance of counsel as a matter of law” because of the lack of a developed record on the matter, although the Appellate Court could not “think of any reason why counsel would opt not to object to the trial judge’s instruction that Mr. Clark not consult with his attorney overnight.” Id. at ⁸. Without the ability to assess “the possibility, however slim, that counsel had a legitimate strategic or tactical reason for letting the instruction go,” the Appellate Court left the issue for Mr. Clark to pursue in postconviction proceedings.

Id. Postconviction Proceedings in the Circuit Court On February 19, 2021, Mr. Clark filed a petition for postconviction relief and reiterated the argument that the trial court’s instruction and his trial counsel’s failure to object violated his Sixth Amendment right to counsel. On July 29, 2021, the circuit court held a hearing on Mr. Clark’s petition and the State of Maryland’s, Respondent’s, response. Mr. Clark’s trial counsel, Tony Garcia, testified that, at the time of Mr. Clark’s trial, he had been practicing criminal law for over 20 years, including time as a prosecutor and defense attorney, and he had tried over 100 trials of all types.

In response to a question from Mr. Clark’s postconviction counsel regarding his reason for not objecting to the trial court’s no-communication order, Mr. Garcia testified: “At the time, I didn’t think there was anything for us to talk about that evening. We had talked that morning, I guess when I delivered the suit to him. We talked during the trial, right before lunch. I believe, you know, at every break.” Mr. Garcia testified: “[T]he answer is that I just didn’t have anything to go over with him because I thought he was -5- doing good on the witness stand.” Mr. Garcia elaborated that at the time he could not call and speak to Mr. Clark in the jail, but had to meet him in person and “the issue would have been, did I want to go back downstairs in the sheriff’s lockup and see [Mr. Clark] that day[.]” However, Mr. Garcia added that “at the end of each day, I would always ask [Mr. Clark] if he had any questions or anything like that.” In response to Mr. Clark’s postconviction counsel’s question about whether he was familiar with Geders v. United States, 425 U.S. 80 (1976), Mr. Garcia testified that he was not, but that he knew that Mr. Clark had a right to speak with him: “I know he had a right to talk to me and if he said he had anything to say, I would have talked to him.” On cross-examination, Mr. Garcia testified that he had extensively prepared Mr. Clark for his testimony, both direct- and cross-examination, and that he did not have any concerns at the conclusion of Mr. Clark’s direct-examination that he would have addressed in a meeting with him.

Mr. Garcia testified that he could have objected, but that in the moment he “didn’t have anything to ask [Mr. Clark],” and Mr. Clark “didn’t say, hey, I want to talk to you.” The State asked Mr. Garcia: “Had Mr. Clark said, I want to speak to my attorney, would you have advocated on his behalf[?]” and Mr. Garcia responded: “Absolutely.” Mr. Garcia testified that, looking back, his reaction was “wow, I should have objected but was I going to meet with him or say anything that night? The answer is no. And he didn’t ask me.” Significantly, although Mr. Clark testified at the postconviction hearing, he was not asked, and did not testify, about the no-communication order or whether he had wanted to speak with counsel during the recess. Mr. Garcia was not asked and offered no testimony as to whether, independent of -6- his observation that Mr. Clark did not say he wanted to speak with him while in the courtroom, he knew whether Mr. Clark developed the desire to speak with him later during the recess or whether Mr. Clark had wanted to waive the right to counsel.

Mr. Garcia also offered no testimony as to whether it would have been desirable or advantageous for him to speak to Mr. Clark about matters other than his testimony, such as a potential plea bargain, rebuttal witnesses for the State, or next steps in the trial. On September 28, 2021, the circuit court granted Mr. Clark’s requested postconviction relief, ordering a new trial. The circuit court held that the no- communication order was an error in direct conflict with the Supreme Court’s precedent in Geders and violated Mr. Clark’s Sixth Amendment rights. The circuit court concluded that “[n]one of trial counsel’s testimony indicated that there was a legitimate strategic or tactical reason for letting the instruction go.” (Cleaned up).

The circuit court characterized Mr. Garcia’s testimony as conceding that he should have objected to the order. Because “[t]he Sixth Amendment right to counsel belongs solely to the individual on trial and cannot be waived by his attorney[,]” the circuit court concluded that Mr. Garcia could not waive Mr. Clark’s right to counsel, which was violated because Mr. Clark “may have desired to [consult with counsel], but was not able to due to the trial court’s instruction.” The circuit court viewed the facts of the case as essentially the same as in Geders. The circuit court held that Mr. Clark “was prejudiced by trial counsel’s failure to object not only because he was deprived of his Sixth Amendment right to counsel during the overnight recess, but also because he was not able to raise the issue on appeal due to trial counsel’s failure to object to the erroneous instruction.” The State filed an application for leave to appeal, which the -7- Appellate Court of Maryland granted. Opinion of the Appellate Court of Maryland On July 28, 2022, a divided panel of the Appellate Court of Maryland reversed the circuit court’s judgment.

See Clark, 255 Md. App. at 331, 279 A.3d at 1123. The Appellate Court distinguished this case from both Geders and Perry v. Leeke, 488 U.S. 272 (1989), because, in those cases, trial counsel had objected to the order, whereas in Mr. Clark’s case, trial counsel had not. See Clark, 255 Md. App. at 339, 279 A.3d at 1127-28. The Appellate Court held that, “although an order to the defendant not to discuss his or her testimony with anyone during an overnight recess is improper, it does not, by itself, constitute a deprivation of the right to counsel.” Id. at 345, 279 A.3d at 1131.

Rather, according to the Appellate Court, to show that the no-communication order “resulted in a violation of the defendant’s Sixth Amendment right to counsel, there must be some evidence that there was an actual deprivation of counsel.” Id. at 345, 279 A.3d at 1131. In reaching this conclusion, the Appellate Court relied on decisions by courts in other jurisdictions that had utilized an “actual deprivation” standard, such as the Third Circuit’s holding in Bailey v. Redman, 657 F.2d 21 (3d Cir. 1981) (per curiam), cert. denied, 454 U.S. 1153 (1982), which the Court found to be more persuasive than the case cited by Mr. Clark for the opposite proposition. See Clark, 255 Md. App. at 342-45, 279 A.3d 1129 -31. The Appellate Court concluded that Mr. Clark was not entitled to the presumption of prejudice and had failed to demonstrate prejudice.

See id. at 345-47 , 279 A.3d 1131 -32. The Appellate Court discussed Weaver v. Massachusetts, 582 U.S. 286 (2017), which the Appellate Court stated held “that a violation of the right to a public trial requires -8- automatic reversal on direct appeal, but when it is raised as part of an ineffective assistance of counsel claim, it is still analyzed under the Strickland framework.” Clark, 255 Md. App. at 339, 279 A.3d at 1128. The Appellate Court quoted cases in which this Court has discussed ineffective assistance of counsel, such as Newton v. State, 455 Md. 341 , 168 A.3d 1 (2017), cert. denied, ___ U.S. ___, 138 S. Ct. 665 (2018), and Ramirez v. State, 464 Md. 532 , 212 A.3d 363 (2019), cert. denied, ___ U.S. ___, 140 S. Ct. 1134 (2020). See Clark, 255 Md. App. at 339-40, 279 A.3d at 1128.

Based on this case law, the Appellate Court concluded that, “because this case is before us in the posture of review of a post- conviction claim of ineffective assistance of counsel, we do not address the merits of the trial court error.” Id. at 340, 279 A.3d at 1128. The Appellate Court described the “lens” for addressing Mr. Clark’s claim: the Strickland test, requiring the defendant to prove both deficient performance of counsel and that prejudice resulted. Clark, 255 Md. App. at 340, 279 A.3d at 1128. The Appellate Court concluded that Mr. Clark’s ineffective assistance of counsel claim failed because he had “failed to prove that he was prejudiced by counsel’s failure to object to the court’s instruction.”3 Clark, 255 Md. App. at 340, 279 A.3d at 1128.

The Appellate Court explained that Mr. Clark needed to establish prejudice by showing either “(1) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; or (2) that the result of the proceeding was 3 Because under Strickland, 466 U.S. at 697 , the Appellate Court was “not required ‘to address both components of the inquiry if the defendant makes an insufficient showing of one[,]’” it focused on the prejudice issue and did not assess the performance of Mr. Clark’s trial counsel. Clark, 255 Md. App. at 340, 279 A.3d at 1128. -9- fundamentally unfair or unreliable.” Id. at 340, 279 A.3d at 1128 (quoting State v. Syed, 463 Md. 60, 86 , 204 A.3d 139, 154 (2019)) (internal quotation marks omitted). The Appellate Court noted that prejudice is presumed “in certain Sixth Amendment contexts,” such as when “(1) the petitioner was actually denied the assistance of counsel; (2) the petitioner was constructively denied the assistance of counsel; or (3) the petitioner’s counsel had an actual conflict of interest.” Id. at 341, 279 A.3d at 1129 (quoting Ramirez, 464 Md. at 573 , 212 A.3d at 387 ) (internal quotation marks omitted). But, the Appellate Court stated, “to show a deprivation of the right to counsel in this context, there must be a showing that the instruction actually prevented the defendant and defense counsel from communicating.” Id. at 341, 279 A.3d at 1129.

The Appellate Court concluded that an objection by counsel to a court’s instruction not to communicate “indicates that, ‘absent the court’s instruction, Defendant would have met with his counsel.’” Id. at 342, 279 A.3d at 1129 (quoting Wallace v. State, 851 So. 2d 216, 220 (Fla. Dist. Ct. App.), review denied, 860 So.2d 980 (Fla. 2003), cert. denied, 540 U.S. 1187 (2004)). The Appellate Court reasoned that there was no prejudice to Mr. Clark because “there was no objection to the instruction, nor was there any showing that the court’s instruction deprived [Mr. Clark] of the right to assistance of counsel.” Id. at 342, 279 A.3d at 1129.

The Appellate Court observed that trial counsel’s postconviction testimony indicated that he had nothing to discuss with Mr. Clark, and that Mr. Clark testified but “did not testify that he would have talked to counsel absent the court’s instruction.” Id. at 342, 279 A.3d at 1129. In a dissenting opinion, the Honorable Douglas R. M. Nazarian concluded that “Mr. - 10 - Clark’s Sixth Amendment rights were violated, in real life terms and in constitutional terms, when the court wrongly forbade him from conferring with counsel[,]” “because the right to counsel was Mr. Clark’s, not his counsel’s to waive or neglect away.” Clark, 255 Md. App. at 348-49, 279 A.3d at 1133 (Nazarian, J., dissenting). The dissent distinguished the cases relied on by the majority in setting an “actual deprivation” standard. See Clark, 255 Md. App. at 360, 279 A.3d at 1140 (Nazarian, J., dissenting).

The dissent pointed out that Bailey, 657 F.2d 21 , was the basis for the Fourth Circuit’s reasoning in Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), and, in turn, in Perry, which the Supreme Court rejected in that case. See Clark, 255 Md. App. at 360-62, 279 A.3d at 1140-41 (Nazarian, J., dissenting). The dissent distinguished United States v. Nelson, 884 F.3d 1103 (11th Cir. 2018), factually, because in that case the defendant’s lawyer requested to speak with the defendant during an overnight recess about topics other than the defendant’s testimony, which the trial court granted, whereas Mr. Clark was forbidden from discussing not only his testimony but also any other matters about trial with his lawyer. See Clark, 255 Md. App. at 362-64, 279 A.3d at 1141-42 (Nazarian, J., dissenting).

Similarly, the dissent distinguished the facts of Wallace, 851 So. 2d 216 , because the instruction to not communicate in that case applied to a lunch recess that was more like Perry’s 15-minute break than the overnight prohibition in Geders and here. See Clark, 255 Md. App. at 364- 65, 279 A.3d at 1143 (Nazarian, J., dissenting). Unlike the majority, the dissent found persuasive Martin v. United States, 991 A.2d 791, 795-96 (D.C. 2010), a case in which the District of Columbia Court of Appeals relied on the Supreme Court’s emphasis that “the right to counsel does not depend upon a request by the defendant, and courts indulge in - 11 - every reasonable presumption against waiver[,]” such that the government has the burden to prove a valid waiver of the right. Clark, 255 Md. App. at 365-67, 279 A.3d at 1143-44 (Nazarian, J., dissenting) (cleaned up).

The dissent pointed out that, in Perry, the Supreme Court held “‘that a showing of prejudice is not an essential component of a violation of the rule announced in Geders’” and that the rule announced in Geders “makes no mention of any requirement that a defendant prove an actual real-time desire to meet with counsel during the overnight recess as a condition of proving that they were deprived of the assistance of counsel.” Clark, 255 Md. App. at 362, 279 A.3d at 1141 (Nazarian, J., dissenting) (citations omitted). The dissent explained that Mr. Clark presented a straightforward Geders claim and determined that, “under the binding and most analytically congruent cases—Geders, Perry, and Wooten-Bey[ v. State, 76 Md. App. 603 , 547 A.2d 1086 (1988), aff’d, 318 Md. 301 , 568 A.2d 16 (1990)]—the trial court’s no-communication directive” deprived Mr. Clark of his Sixth Amendment right to confer with counsel by its very nature. Id. at 367, 371 , 279 A.3d at 1144, 1146 (Nazarian, J., dissenting). The dissent would have concluded that, as a result, Mr. Clark was entitled to a presumption of prejudice.

See id. at 349, 279 A.3d at 1134 (Nazarian, J., dissenting). The dissent faulted the majority’s holding regarding Mr. Clark’s need to show prejudice as erroneously establishing the proposition that “the court can take away a defendant’s right to counsel unless he proves that he planned to use it right then, never mind the court ordering him not to.” Id. at 377, 279 A.3d at 1150 (Nazarian, J., dissenting). The dissent observed that the Supreme Court has emphasized the significance of a fair trial in ineffective assistance of counsel cases, and reiterated that an actual denial - 12 - of the assistance of counsel relieves the defendant of proving prejudice because “[t]he presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.” Id. at 355, 279 A.3d at 1137 (Nazarian, J., dissenting) (quoting United States v. Cronic, 466 U.S. 648, 659 (1984)). Petition for a Writ of Certiorari On, August 15, 2022, Mr. Clark petitioned for a writ of certiorari, raising the following four issues: I. As a matter of first impression, does requiring a criminal defendant to retroactively prove his desire to defy the trial court’s order against speaking with his attorney about his case during an overnight recess violate his constitutional right to counsel?

II

Does permitting counsel to neglect or waive his client’s right to speak with him during an overnight recess violate that client’s constitutional right to counsel?

III

Was the post-conviction court’s ruling that prejudice was found from trial counsel not preserving the issue for appeal correct?

IV

Is not objecting to the violation of a criminal defendant’s right to counsel due to mere ignorance of the law deficient performance? On November 18, 2022, we granted the petition. See Clark v. State, 482 Md. 141 , 284 A.3d 848 (2022). DISCUSSION4 The Parties’ Contentions Mr. Clark contends that requiring him to demonstrate that he was prejudiced as a 4 As the four questions presented are interrelated, we address them together. - 13 - result of “trial counsel not objecting to the trial court’s order prohibiting their communication . . . during an overnight recess eviscerates his constitutional right to the effective assistance of counsel[.]” Mr. Clark contends that all binding precedent supports determining a presumption of prejudice in this case, particularly Supreme Court of the United States cases Geders, Perry, and Strickland.

Mr. Clark argues that, in multiple decisions addressing ineffective assistance of counsel, the Supreme Court has consistently reaffirmed the presumption of prejudice resulting from denial of access to counsel during a critical stage of trial, such as an overnight recess. Mr. Clark asserts that several United States Courts of Appeals have upheld the Geders presumption of prejudice as applicable to cases similar to his, and that the majority of State high courts that have considered the issue have applied Geders’s presumption of prejudice to cases involving instructions not to communicate. Mr. Clark contends that requiring him to prove at a postconviction hearing that he would have spoken with trial counsel during an overnight recess in order to establish prejudice is impractical. It would, Mr. Clark maintains, require a court to speculate about what he would have wanted to discuss with counsel absent the trial court’s order, rather than rely on the record.

Mr. Clark argues that it would be unreasonable to expect him to have objected to the trial court’s order in light of trial counsel’s failure to do so, and similarly unreasonable to expect him to remember years later whether he wanted to speak with trial counsel during the prohibited time. Mr. Clark contends that the Appellate Court of Maryland’s decision requiring that a petitioner produce such proof places too heavy a burden on the petitioner. Mr. Clark also asserts that requiring a showing of prejudice would - 14 - infringe on the right to private communication with counsel, because such an approach would improperly allow “a rule whereby private discussions between counsel and client could be exposed in order to let the government show that the accused’s sixth amendment rights were not violated.” (Quoting Mudd v. United States, 798 F.2d 1509, 1513 (D.C. Cir. 1986)) (cleaned up). Mr. Clark stresses that the Sixth Amendment right to counsel belonged to him and not to trial counsel, and that trial counsel could not waive his right by failing to object.

Mr. Clark also argues that his trial counsel’s failure to preserve the issue by objecting was prejudicial under Maryland case law, because “1) [] competent appellate counsel would have chosen to raise such an issue, had it been preserved, and 2) [] the issue had a reasonable probability of being successful on appeal.” (Quoting State v. Gross, 134 Md. App. 528, 585 , 760 A.2d 725, 755 (2000)) (internal quotation marks omitted). The State responds that the Appellate Court of Maryland correctly reversed the circuit court’s order for a new trial. The State argues that “the Appellate Court rightly held, joining a consensus of authority from other courts, a Sixth Amendment deprivation of the type recognized in Geders is not established unless a court’s no-communication directive actually prevents the defendant and defense counsel from communicating.” (Emphasis in original). According to the State, the result is that no presumption of prejudice applies and, therefore, Mr. Clark’s failure to show prejudice dooms his claim under Strickland.

The State asserts that “a Geders error requires a showing that the directive caused ‘an actual “deprivation” of counsel[,]’ Nelson, 884 F.3d at 1109 [,]” such as “‘by demonstrating that [the defendant] wanted to meet with his attorney but was prevented - 15 - from doing so by the instruction of the trial judge.’ Stubbs [], 689 F.2d [at] 1207 [].” The State argues that this is not the same as “requiring the defendant to show prejudice resulting from a deprivation of the right to counsel, in contravention of Perry,” instead, this requires a defendant “to show that there was a deprivation of counsel in the first place.” The State contends that this is the approach “adopted by every federal appellate court to directly address the issue, including the Third, Fourth, and Eleventh Circuits[,]” as well as by seven State appellate courts, and rejected only by the District of Columbia Court of Appeals. The State asserts that, under this standard, Mr. Clark did not show that he was actually deprived of consultation with his trial counsel, and, therefore, Mr. Clark was not entitled to a presumption of prejudice. The State argues that the cases cited by Mr. Clark, with a few exceptions, do not speak to the “actual deprivation” standard but instead to the general principle that a Geders violation does not require a showing of prejudice. The State asserts that following the approach of these courts, and not requiring an objection, “would incentivize defendants and their counsel not to object to directives that are improper under Geders.” (Emphasis in original).

The State argues that the actual deprivation standard deployed by the Appellate Court in this case “does not treat a non-objection by counsel as a waiver of the right to attorney-client consultation” because “the defendant can show that he would have consulted with counsel but for the trial court’s no-communication directive[.]” According to the State, Mr. Clark’s contention that this standard would result in the violation of a defendant’s right to confer privately with counsel is overblown, because normally an objection is all that is needed to show there was actual deprivation and, in cases lacking an - 16 - objection, the defendant or counsel can testify to the deprivation. The State contends that, in the absence of the presumption of prejudice, which it argues does not apply here, Mr. Clark failed to show prejudice under Strickland, and his postconviction claim therefore fails. The State asserts that this Court’s decision in Newton forecloses the possibility that Mr. Clark was prejudiced by his trial counsel’s failure to preserve the issue for appeal. This is because, under Newton, the State argues, “it must be presumed that, upon being alerted to its error, the trial court would have recognized and corrected it[,]” resulting in no issue on direct appeal.

The State asserts that such an approach is appropriate because “any other rule would transform the Strickland prejudice inquiry into a loophole in the appellate preservation requirement and the plain-error review standard[.]” Standard of Review “In reviewing a trial court’s ruling on a petition for postconviction relief, an appellate court reviews for clear error the trial court’s findings of fact, and reviews without deference the trial court’s conclusions of law, including a conclusion as to whether the petitioner received ineffective assistance of counsel.” Ramirez, 464 Md. at 560 , 212 A.3d at 380 (citation omitted). The Right to Effective Assistance of Counsel As a bedrock principle, the Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to counsel. See U.S. Const. amend.

VI

Under Supreme Court of the United States precedent, “the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of - 17 - the accused to receive a fair trial.” Cronic, 466 U.S. at 658 . In Strickland, a federal habeas corpus case and the seminal case on the standard for attorney performance in a criminal trial, the Supreme Court reiterated “that the right to counsel is the right to the effective assistance of counsel.” Strickland, 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759 , 771 n.14 (1970) (internal quotation marks omitted)). The Supreme Court stated that the “Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense[,]” and that counsel “can also deprive a defendant of the right to effective assistance, simply by failing to render ‘adequate legal assistance[.]’” Id. (citations omitted).

The Supreme Court explained that “[i]n certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel’s assistance.” Id. at 692 (citing Cronic, 466 U.S. at 659 & n.25). The Supreme Court stated that “[p]rejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost.” Id.

(citing Cronic, 466 U.S. at 658 ). In addition, the Supreme Court held that, “though more limited,” a presumption of prejudice is warranted when counsel is burdened by an actual conflict of interest. Id. “In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties.” Id. The Supreme Court explained that, where an ineffective assistance of counsel claim is based on an alleged conflict of interest, “the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims” based on an actual or constructive denial of the assistance of counsel and certain types of State interference.

Id. - 18 - Rather, where an alleged conflict of interest is concerned, “[p]rejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected [the defendant’s] lawyer’s performance.’” Id. (citation omitted). With respect to an actual or constructive denial of the assistance of counsel and certain kinds of State interference, no affirmative showing or demonstration by the defendant is required; rather, there is a per se rule of prejudice. See id.

Under Strickland, the actual or constructive denial of the assistance of counsel and the government’s interference with assistance of counsel in certain instances are not treated differently— instead, they are both entitled to a “per se” presumption of prejudice without a showing by a defendant. Id. Geders and Perry Prior to Strickland, in Geders, 425 U.S. at 91 , the Supreme Court considered on direct appeal whether a trial court’s order directing petitioner not to consult with his attorney during an overnight court recess, called between petitioner’s direct-examination and cross-examination, violated petitioner’s Sixth Amendment right to the assistance of counsel. The Supreme Court held that the trial court’s “order preventing petitioner from consulting his counsel ‘about anything’ during a 17-hour overnight recess between his direct- and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment.” Id.

Even though defense counsel had objected to the order and indicated that a defendant and counsel should not be precluded from speaking during an overnight recess, see id. at 82 , the Supreme Court reversed the Fifth Circuit’s - 19 - decision holding “that petitioner’s failure to claim any prejudice resulting from his inability to consult with counsel during one evening of the trial was fatal to his appeal.” Id. at 86, 92 ; see also Perry, 488 U.S. at 279 . The Supreme Court concluded that such an order deprives the defendant of the “guiding hand of counsel” at a critical point in the proceeding. Geders, 425 U.S. at 89 (quoting Powell v. Alabama, 287 U.S. 45, 69 (1932)). The Supreme Court’s holding in Geders teaches that it is the length and scope of the no-communication order, not the defendant’s request or demonstrated desire for counsel, that determines whether there has been a violation of the defendant’s Sixth Amendment right to counsel.

In Geders, id. at 88 , the Supreme Court explained that overnight recesses are important opportunities for a defendant and counsel to converse, share information, and make decisions, which is critical to the right to counsel and the right to be heard “because ordinarily a defendant is ill-equipped to understand and deal with the trial process without a lawyer’s guidance.” The Court characterized the no-communication order as “a sustained barrier to communication between a defendant and his lawyer[.]” Id. at 91 . The Court concluded that “[t]he challenged order prevented petitioner from consulting his attorney during a 17-hour overnight recess, when an accused would normally confer with counsel.” Id. In Geders, id. at 92 , the Supreme Court reversed the judgment of the Fifth Circuit, which had denied the claim of a constitutional violation in the case because it could “discern no actual harm . . . and [was] convinced that there was none[.]” United States v. Fink, 502 F.2d 1, 9 , (5th Cir. 1974), rev’d sub nom. Geders, 425 U.S. 80 (quoting United States v. Leighton, 386 F.2d 822, 823 (2d Cir. 1967)) (ellipsis in original) (internal - 20 - quotation marks omitted).

The Fifth Circuit based its conclusion on the reasoning of the Second Circuit, which had rejected the claim that a no-communication order was a “violation of [a defendant’s] right to counsel” because “[a]t no time during, before, or after the recess,[5] did either [the defendant] or his attorney indicate that they did in fact have something to discuss which might have affected [the defendant]’s testimony or course of action.” Fink, 502 F.2d at 9 (quoting Leighton, 386 F.2d at 823 ). In Geders, 425 U.S. at 86, 92 , in reversing the Fifth Circuit, the Supreme Court characterized the Fifth Circuit as having held in Fink, in reliance on Leighton, “that petitioner’s failure to claim any prejudice resulting from his inability to consult with counsel during one evening of the trial was fatal to his appeal.” The Supreme Court referenced the conclusions of other courts “that an order preventing a defendant from consulting his attorney during an overnight recess infringes upon this substantial right”: United States v. Venuto, 182 F.2d 519 (3d Cir. 1950); People v. Noble, 248 N.E.2d 96 (Ill. 1969); and Commonwealth v. Werner, 214 A.2d 276 (Pa. Super. Ct. 1965).

Geders, 425 U.S. at 89 . Nothing in the Third Circuit’s Venuto opinion indicates whether the defendant and counsel expressed a desire to consult overnight, whereas the Supreme Court of Illinois’s decision in Noble, 248 N.E.2d at 99 , related that 5 The recess at issue in Leighton was an “eighty-five minute luncheon recess” between the defendant’s direct- and cross-examination, Leighton, 386 F.2d at 823 , which could place the no-communication order within the bounds of the Constitution per Perry, 488 U.S. at 280 . In Geders, the Supreme Court distinguished Leighton based on the difference in the nature of the recess, making it “a matter we emphasize is not before us in this case.” Geders, 425 U.S. at 89 n.2 (citations omitted). The concurring opinion saw no reason to exclude shorter recesses from the rule set forth in the majority opinion.

See Geders, 425 U.S. at 92 (Marshall, J., concurring). - 21 - defense counsel “needed to discuss certain matters with defendant before the following day.”6 In Werner, 214 A.2d at 277 , the Pennsylvania appellate court held unconstitutional an overnight no-communication order, requiring reversal even though the order limited only consultation regarding the defendant’s testimony and defense counsel sought only to be able to ask defendant “if there are any other witnesses he wants me to call” and otherwise consented to the order. In all of these direct appeal cases, the courts rejected the argument that the defendant had to show prejudice from the denial of access to counsel. See Venuto, 182 F.2d at 522 ; Noble, 248 N.E.2d at 100 ; Werner, 214 A.2d at 278 . After Geders, in Perry, 488 U.S. at 276-77 , the Supreme Court expressly addressed, in a habeas corpus case, the question of whether a demonstration of prejudice is necessary to establish a violation of the Sixth Amendment right to counsel and set aside a conviction based on a trial court’s no-communication order, or whether prejudice is presumed.

The petitioner sought a federal writ of habeas corpus after the Supreme Court of South Carolina upheld his conviction despite the trial judge’s instruction that he not speak to his attorney during a brief unexpected 15-minute break at the end of his direct-examination.7 See Perry, 488 U.S. at 274-75 . The federal district court held that the defendant had a right to counsel during the brief recess and that “he need not demonstrate prejudice from the denial of that 6 In later cases, both the Third Circuit and the Supreme Court of Illinois would adopt the “actual deprivation” rule. See Bailey, 657 F.2d at 23-24 ; People v. Brooks, 505 N.E.2d 336, 340-41 (Ill. 1987). 7 According to Perry, 488 U.S. at 274 , the State trial court declared a 15-minute recess and ordered that the defendant not be allowed to talk with anyone during the break, including his lawyer. After the recess, the attorney requested a mistrial due to the no- communication order, which the State trial court denied.

See id. - 22 - right in order to have his conviction set aside.” Id. at 276 (citations omitted). The Fourth Circuit, sitting en banc, reversed, relying on Cronic and Strickland, and held “that trial errors of this kind do not pose such a fundamental threat to a fair trial that reversal of a conviction should be automatic.” Perry, 488 U.S. at 276 . Using a prejudice analysis, the Fourth Circuit concluded that the evidence against the defendant was overwhelming and “that there was no basis for believing that his performance on cross- examination would have been different had he been given an opportunity to confer with his lawyer during the brief recess.” Id. In Perry, id. at 280 , the Supreme Court of the United States held that a defendant does not have “a constitutional right to confer with his attorney during [a] 15-minute break in his testimony[.]” Significantly, though, as part of its rejection of the Fourth Circuit’s reasoning, the Supreme Court held “that a showing of prejudice is not an essential component of a violation of the rule announced in Geders.” Perry, 488 U.S. at 278-80 .

The Supreme Court stated that, contrary to the Fourth Circuit’s conclusion, Strickland had not modified the Geders rule to require a showing of prejudice to the defendant, but rather had made clear that “‘[a]ctual or constructive denial of the assistance of counsel altogether’ is not subject to the kind of prejudice analysis that is appropriate in determining whether the quality of a lawyer’s performance itself has been constitutionally ineffective.” Perry, 488 U.S. at 280 (quoting Strickland, 466 U.S. at 692 ) (alteration in original) (citations omitted). The Supreme Court did not accept the Fourth Circuit’s rationale that “trial errors of this kind do not pose such a fundamental threat to a fair trial that reversal of a conviction should be automatic” and that the trial outcome would have been no different without the - 23 - error. Id. at 280, 276. Nonetheless, the Supreme Court affirmed the Fourth Circuit’s decision, explaining that a judge’s instruction that a defendant may not “confer with his attorney during [a] 15- minute break in his testimony” is not a constitutional violation.

Perry, 488 U.S. at 280, 285 . This is because a defendant does not have a “constitutional right to discuss [] testimony while it is in process” and would be unlikely to discuss anything other than the testimony during such a brief recess. Id. at 283-84 . A bar on attorney-client communication during such a short break does not implicate the normal consultation between attorney and client that occurs during an overnight recess [] encompass[ing] matters that go beyond the content of the defendant’s own testimony—matters that the defendant does have a constitutional right to discuss with his lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain.

Id. at 284 . The difference between Geders and Perry, the Supreme Court explained, was that in the context of a long recess, “the defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-related matters” controls, whereas in a short recess nothing other than the testimony itself would likely be discussed. Perry, 488 U.S. at 284 . The Presumption of Prejudice The actual denial of the assistance of counsel is one of the limited distinct circumstances that the Supreme Court of the United States and this Court have consistently recognized as resulting in a presumption of prejudice under Strickland in determining whether trial counsel has rendered ineffective assistance of counsel in postconviction cases.

In accord with Supreme Court of the United States precedent, this Court has stated that, in assessing a petitioner’s allegation of ineffective assistance of counsel, a - 24 - court should presume that trial counsel’s performance prejudiced the petitioner only if: (1) the petitioner was actually denied the assistance of counsel; (2) the petitioner was constructively denied the assistance of counsel; or (3) the petitioner’s counsel had an actual conflict of interest. Ramirez, 464 Md. at 572-73 , 212 A.3d at 387 . In Ramirez, id. at 539-41 , 212 A.3d at 368 , this Court considered an ineffective assistance claim based on trial counsel’s failure to strike a potentially biased juror who during voir dire stated that his past experience as a crime victim would likely affect his ability to render a fair and impartial verdict. We determined that the defendant proved deficient performance based on trial counsel mistakenly moving to strike for cause another juror rather than the one who had expressed possible bias.

See id. at 568-69 , 212 A.3d at 385 . Despite trial counsel’s deficient performance, we concluded that the petitioner needed to prove prejudice, because trial counsel’s failure to move to strike a juror was not one of the narrow circumstances in which prejudice is presumed. See id. at 573 , 212 A.3d at 388 . We determined that the petitioner’s allegation of structural error, even if valid, did not relieve him “of the obligation to prove prejudice[,]” and that he failed to do so.

Id. at 573, 577 , 212 A.3d at 388, 390 . In Ramirez, id. at 539, 574 , 212 A.3d at 367, 388 , we stated that the actual denial of the assistance of counsel is one of a select few “circumstances under which ‘a presumption of prejudice is appropriate[,]’ which obviates the need for ‘inquiry into the [] conduct of the trial.’” (Quoting Cronic, 466 U.S. at 660 ) (alterations in original). In accord with Supreme Court of the United States precedent, in dicta, we described the actual denial of the assistance of counsel as occurring “where ‘counsel was either totally absent, or - 25 - prevented from assisting the [petitioner] during a critical stage of the proceeding.’” Id. at 574, 212 A.3d at 388 (quoting Cronic, 466 U.S. at 659 n.25) (alteration in original).8 We did not hold that a defendant is required to prove that the defendant wanted to communicate with counsel, or prove anything at all, to demonstrate that counsel was prevented from rendering assistance during a critical stage of the proceeding.9 See Ramirez, 464 Md. at 572-73 , 212 A.3d at 387 . Rather, we reiterated the holding of long-standing case law of the Supreme Court of the United States that the actual denial of the assistance of counsel is one of three limited circumstances in which there is no need for an inquiry as to prejudice.

See id. at 572-73 , 212 A.3d at 387 . The Supreme Court of the United States has stated that such “circumstances [] are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658 (footnote omitted). Put differently, “the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.” Mickens v. Taylor, 535 U.S. 162, 166 (2002) (citations omitted). “Violations of the rule against 8 Courts have described the second form of the denial of the assistance of counsel, constructive denial, as when “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing” or when, despite counsel’s availability “to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate[.]” Cronic, 466 U.S. at 659-60 . 9 In Ramirez, 464 Md. at 574 , 212 A.3d at 388 , the description of the actual denial of the assistance of counsel appeared in a paragraph of the opinion describing Supreme Court case law setting forth the three circumstances under which the presumption of prejudice applies. With this statement, this Court did no more than quote existing Supreme Court case law.

The resolution of the issue before the Court—whether prejudice should be presumed for trial counsel’s deficient performance during voir dire—did not turn on the description of the actual denial of the assistance of counsel quoted from Supreme Court case law. - 26 - flatly prohibiting consultation between a criminal defendant and his lawyer during a substantial recess are treated as complete denials of counsel (even though they are of limited duration), and so require reversal even if no prejudice is shown.” United States v. Santos, 201 F.3d 953, 966 (7th Cir. 2000) (citations omitted). In Ramirez, 464 Md. at 561 , 212 A.3d at 380 , this Court made clear that, as to a claim of ineffective assistance that does not fall within one of the three presumed prejudice exceptions, the petitioner has the burden to establish “that the deficient performance prejudiced the defense.” (Quoting Strickland, 466 U.S. at 687 ). Prejudice in this context means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different[,]” which we have clarified means a “substantial or significant possibility that the verdict . . . would have been affected.” Id. at 561, 212 A.3d at 380 -81 (quoting Strickland, 466 U.S. at 694 ; Syed, 463 Md. at 86-87 , 204 A.3d at 154 ) (ellipsis in original) (internal quotation marks omitted). This Court has not permitted an encroachment on the three circumstances under which prejudice is presumed post-conviction.

We have held that the requirement to show prejudice may apply where a postconviction petitioner alleges structural errors, but only so long as the error is not within one of the three presumption of prejudice exceptions. See id. at 575, 212 A.3d at 389 . For instance, no presumption of prejudice applies when a postconviction petitioner challenges trial counsel’s failure to invoke the “automatic right to remove the case to another county[,]” oppose “the presence of an alternate juror during deliberations[,]” or object to a “public-trial right violation.” Id. at 565-66 , 212 A.3d at 382 - 83 (cleaned up). This is so because, although “[t]he purpose of the structural error doctrine - 27 - is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial[,]” in some instances, “the reasons an error is deemed structural may influence the proper standard used to evaluate an ineffective-assistance claim premised on the failure to object to that error.” Weaver, 582 U.S. at 294-95 .

Therefore, aside from an error falling within the three presumption of prejudice categories, a structural error that may warrant automatic reversal on direct appeal can be held to a higher standard and require a showing of prejudice when it is alleged in postconviction proceedings based on ineffective assistance of counsel. See id. at 302 . As we explained in Ramirez, 464 Md. at 577 , 212 A.2d at 390, this distinction is not accurate for cases involving “any of the circumstances under which the presumption of prejudice applies[,]” such as “[a]ctual or constructive denial of the assistance of counsel[.]” (Quoting Strickland, 466 U.S. at 692 ) (first alteration in original). “Actual Denial” vs. “Actual Deprivation” In contrast to this Court’s longstanding case law concerning the applicability of the presumption of prejudice where a defendant was actually or constructively denied the assistance of counsel, some courts have applied a standard indicating that the presumption of prejudice is available with respect to an unobjected-to no-communication order only for those petitioners who can prove that they desired to speak with their counsel but were prevented from doing so by the trial court’s no-communication order. See, e.g., Bailey, 657 F.2d at 23-24 (habeas corpus case involving unobjected-to order); Nelson, 884 F.3d at 1109 (direct appeal involving unobjected-to order); People v. Brooks, 505 N.E.2d 336, 340-41 (Ill. 1987), abrogated on other grounds by People v. R.D., 613 N.E.2d 706 (Ill. - 28 - 1993) (direct appeal involving unobjected-to order).10 Consistent with this Court’s case law, however, other courts have treated a lengthy or overnight unobjected-to no- communication order itself as a denial of the assistance of counsel, without requiring a showing of an intent by the defendant or counsel to speak with each other but for the order.

See, e.g., United States v. Torres, 997 F.3d 624, 627 (5th Cir. 2021) (direct appeal involving unobjected-to order); Martin, 991 A.2d at 795 (same); see also Mastracchio v. Houle, 416 A.2d 116, 117, 122 (R.I. 1980) (postconviction case involving objected-to order where defense counsel moved to be allowed to speak with defendant during weekend-long recess but advised that he did not at the time anticipate needing to do so). The latter approach, which is undeniably consistent with the Sixth Amendment right to counsel, the Maryland Declaration of Rights, and case law of the Supreme Court of the United States and this Court, is the approach that, absent an exception to the principle of stare decisis, we must follow. Specifically, various courts have concluded that a lengthy no-communication instruction itself deprives the defendant of the assistance of counsel. See Mastracchio, 416 A.2d at 122 (holding in a postconviction context “that applicant was deprived of his Sixth Amendment right to counsel during his trial by virtue of the order that he not consult with counsel during the weekend recess”).

This conclusion results from the Supreme Court’s holding in Geders, in that it “reversed without pausing to inquire as to prejudice,” and was 10 Bailey, a habeas corpus case, appears to be the genesis of this approach. See, e.g., Brooks, 505 N.E.2d at 340-41 ; Crutchfield v. Wainwright, 803 F.2d 1103, 1110 (11th Cir. 1986) (en banc), abrogated on other grounds by Perry, 488 U.S. 272 ; Stubbs v. Bordenkircher, 689 F.2d 1205, 1207 (4th Cir. 1982). - 29 - “persuaded that foreclosing consultation with counsel inevitably impairs the effective assistance of counsel when the prohibition extends over as long a period as an overnight recess.” United States v. DiLapi, 651 F.2d 140, 148 (2d Cir. 1981). The difference in the two approaches is not one of semantics. Under an “actual- deprivation” approach, as “a condition precedent” to a Sixth Amendment violation, there must be “a demonstration, from the trial record,” that the defendant desired to confer with counsel or that counsel desired to confer with the defendant but was “precluded from doing so by the [trial] court.” Nelson, 884 F.3d at 1109 .

Courts following the above approach characterize this demonstration as a distinct question that must be answered separate from any prejudice to the defendant from a no-communication order. See Bailey, 657 F.2d at 24 . An objection to the no-communication order is considered a way to show an actual deprivation, but a defendant could also rely on other evidence to show it. See Nelson, 884 F.3d at 1109-10 .

To be sure, some dictionary definitions of “denial” and “deprivation” may be similar or even synonymous.11 But case law has not treated “actual denial” and “actual 11 The dictionary definitions of “denial” include a “refusal to satisfy a request or desire[,]” or “refusal to grant or allow something[.]” Denial, Merriam-Webster (2023), https://www.merriam-webster.com/dictionary/denial [https://perma.cc/DA94-8NXA]; see also Denial, Oxford English Dictionary (2023), https://www.oed.com/search/dictionary/ ?scope=Entries&q=denial [https://perma.cc/B6YQ-28XT] (“The act of saying ‘no’ to a request or to a person who makes a request; refusal of anything asked for or desired.”). The relevant definitions of “deprivation” are “the state of being kept from [] enjoying[] or using something” or “an act or instance of withholding or taking something away from someone or something[.]” Deprivation, Merriam-Webster (2023), https://www.merriam- webster.com/dictionary/deprivation [https://perma.cc/PA4R-3R39]; see also Deprivation, The Britannica Dictionary (2023), https://www.britannica.com/dictionary/deprivation - 30 - deprivation” as the same. Courts using the actual deprivation standard have required a substantive showing or demonstration of a defendant’s desire or need to speak with counsel as a condition precedent to finding prejudice. Those courts have sometimes described this requirement as an issue of deprivation rather than a denial of the assistance of counsel.

See, e.g., Crutchfield v. Wainwright, 803 F.2d 1103, 1109 (11th Cir. 1986) (en banc), abrogated on other grounds by Perry, 488 U.S. 272 ; Stubbs, 689 F.2d at 1207 . The actual denial standard as used by this Court and the Supreme Court in Geders, Strickland, and Perry does not require that the defendant make a demonstration or showing of a desire or need to consult with counsel but rather is based on the scope and duration of the preclusion of access to counsel. So, although the dictionary definitions of the words denial and deprivation may be similar or the same, case law has treated the terms denial and deprivation differently. Like the Supreme Court of the United States, this Court has never held in any context that the right to counsel in a criminal trial depends on a request by the defendant.

We have consistently stated in our postconviction case law that the actual denial and constructive denial of the assistance of counsel are two of three narrow grounds under which prejudice is presumed, and we have never required a demonstration or showing by a petitioner as a condition precedent to the presumption of prejudice due to an actual or constructive denial of the assistance of counsel. See Ramirez, 464 Md. at 572-73 , 212 A.3d at 387 . [https://perma.cc/DQE9-KG2N] (“[T]he state of not having something that people need[,] the state of being deprived of something[.]”). - 31 - In fact, the Supreme Court of the United States has stated that, “[t]o preserve the protection of the Bill of Rights for hard-pressed defendants, [] every reasonable presumption against the waiver of fundamental rights[ is indulged].” Glasser v. United States, 315 U.S. 60, 70 (1942). A waiver of the right to counsel is not valid unless it is “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The Supreme Court has explained that the burden is on the State to prove such intentional relinquishment, as has been “reiterated in many cases[,]” and “the right to counsel does not depend upon a request by the defendant.” Brewer v. Williams, 430 U.S. 387, 404 (1977).

Similarly, this Court has required a knowing and intelligent waiver even when a defendant explicitly consents to defense counsel’s absence during a critical stage of trial. See State v. Wischhusen, 342 Md. 530, 540 , 677 A.2d 595, 600 (1996). Weaver: Structural Error and Ineffective Assistance of Counsel In Weaver, 582 U.S. at 300-01 , the Supreme Court held that a violation of the constitutional right to a public trial, which on direct appeal would result in automatic reversal without inquiry into prejudice, is not entitled to a presumption of prejudice when it is raised in an ineffective assistance of counsel challenge. The Court’s decision necessitated applying two “intertwined” doctrines, structural error and ineffective assistance of counsel, because “the reasons an error is deemed structural may influence the proper standard used to evaluate an ineffective-assistance claim premised on the failure to object to that error.” Id. at 294 .

The Supreme Court described structural errors as those that “should not be deemed - 32 - harmless beyond a reasonable doubt” in order “to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial.” Id. at 294-95 (citation omitted). The Court outlined “three broad rationales” that lead to an error being structural: the right at issue serves an interest other than protecting against erroneous conviction; “the effects of the error are simply too hard to measure”; and “the error always results in fundamental unfairness.” Id. at 295-96 . The Court determined that, “while the public-trial right is important for fundamental reasons, in some cases an unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant’s standpoint.” See id. at 299 . The Court discussed the requirement that an ineffective assistance of counsel challenge must normally meet the Strickland requirements of deficient performance and prejudice, and that “the ultimate inquiry must concentrate on ‘the fundamental fairness of the proceeding.’” Weaver, 582 U.S. at 299-300 (citation omitted).

The Court concluded that no presumption of prejudice applied because “not every public-trial violation will in fact lead to a fundamentally unfair trial”; nor would “the failure to object to a public-trial violation always deprive[] the defendant of a reasonable probability of a different outcome.” Id. at 300-01 . But the Court was careful to caution that its reasoning and holding did not call “into question the Court’s precedents determining that certain errors are deemed structural and require reversal because they cause fundamental unfairness, either to the defendant in the specific case or by pervasive undermining of the systemic requirements of a fair and open judicial process.” Id. at 301 (citation omitted). - 33 - Additional Maryland Case Law In addition to having done so in Ramirez, in other cases, this Court has described the narrow exceptions under which prejudice is presumed for Strickland purposes. In Bowers v. State, 320 Md. 416, 423, 425 , 578 A.2d 734, 737-38 (1990), a postconviction case, we stated that, in Perry, the Supreme Court revisited Strickland, and that “situations in which prejudice is presumed” include “actual or constructive denial of counsel[.]” In Redman v. State, 363 Md. 298, 310-11 , 768 A.2d 656, 663 (2001), also a postconviction case, this Court stated that “[t]he Supreme Court fashioned an exception to the Strickland prejudice prong” in Cronic with the presumption of prejudice applying where there is an actual or constructive denial of the assistance of counsel. In Walker v. State, 391 Md. 233, 246-47 , 892 A.2d 547, 554-55 (2006), another postconviction case, we described the presumption of prejudice as applying “where the accused was completely denied counsel . . . includ[ing] [] when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding[,]” where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing[,]” and “where the accused faces circumstances in which it is not likely that any attorney could provide effective assistance.” (Cleaned up).

This Court has never held that, to establish that counsel was prevented from rendering assistance during a critical stage of the proceedings, a defendant is required to demonstrate that the defendant wanted to, or would have taken advantage of the opportunity to, speak with counsel. Instead, adhering to the approach taken by the Supreme Court of the United States, in postconviction and direct appeal cases, this Court has evaluated based on the facts of the case whether “counsel - 34 - was either totally absent, or prevented from assisting the accused[.]” Id. at 246-47 , 892 A.2d at 555 (quoting Cronic, 466 U.S. at 659 n.25). In Walker, id. at 244, 892 A.2d at 553 , this Court upheld the denial of a petition for postconviction relief where the petitioner argued “that because his defense counsel did not participate at trial, he was denied effective assistance of counsel[.]” We disagreed with the petitioner’s contention that, “because his trial counsel, although present in the courtroom, failed to subject the State’s case against [him] to ‘meaningful adversarial testing,’” a presumption of prejudice was warranted under Cronic. Walker, 391 Md. at 247 , 892 A.2d at 555 .

The petitioner had left the State prior to trial but after counsel had been appointed to represent him, and the petitioner was tried in absentia, with defense counsel strenuously objecting to the proceeding as unconstitutional but otherwise generally not participating in the trial because he believed that the petitioner would not want him to do so. Id. at 238- 41, 892 A.2d at 549-51 . We concluded that there was no presumption of prejudice because we read Cronic’s exception as very narrow, meaning that defense counsel’s “failure must be complete[,]” which it was not in petitioner’s case. Walker, 391 Md. at 247 , 892 A.2d at 555 (quoting Florida v. Nixon, 543 U.S. 175, 190 (2004)) (internal quotation marks omitted).

We did not discuss any requirement that for the presumption of prejudice to apply the defendant must demonstrate that he actually desired or needed to confer with counsel or sought to have counsel ask questions or present arguments that counsel did not. Case Law of Courts in Other Jurisdictions In Bailey, 657 F.2d at 23-24 , a case that predated Strickland, the Third Circuit - 35 - affirmed the denial of petitioner’s habeas corpus claim based on a no-communication order, “based not on appellant’s failure to prove the exact ‘prejudice’ caused by his inability to meet with counsel; rather, . . . based on his failure to demonstrate that he was actually ‘deprived’ of his right to consult with his attorney.” Before an overnight recess during cross-examination of the petitioner, the trial court ordered him not to discuss his testimony with anybody, including his lawyer, but defense counsel did not object.12 See Bailey, 657 F.2d at 22-23 . The Third Circuit distinguished Geders and its own precedent, Venuto, 182 F.2d 519 , because in those cases “there was an indication that absent the court’s instruction, the defendant would have met with his counsel” and because “[t]he defendants’ attorneys in both of these cases argued vigorously at the time of the imposition of the restriction that the trial court’s instruction was improper and violated their clients’ rights to consult with counsel.” Bailey, 657 F.2d at 23 -24 & n.4 (cleaned up). In contrast, in Bailey, the Third Circuit concluded that the petitioner “did not question or object to the court’s instruction []or . . . present[] evidence to corroborate his assertion that he failed to do so because of the ‘chilling’ effect of the court’s admonition.” Id. at 24 (footnote omitted).

On this last point, the Third Circuit discounted “an affidavit signed by the appellant almost five years after his conviction, and following the D.C. Court of Appeals decision in Jackson” 13 as 12 The order came in the third week of a four-week trial. See Bailey, 657 F.2d at 22 . In addition to the lack of objection to the order, the petitioner did not raise the issue on direct appeal. See id. at 23 . 13 In Jackson v. United States, 420 A.2d 1202, 1203 , 1205 & n.8 (D.C. 1979) (en banc), the District of Columbia Court of Appeals reversed a conviction due to an order prohibiting the defendant from discussing his testimony or anything else with anyone over a lunch recess, despite counsel’s failure to object, on the basis of plain error, and established - 36 - insufficient.

Bailey, 657 F.2d at 24 n.5. The Third Circuit elaborated on the distinction between prejudice and the requirement of showing deprivation of consultation with counsel: “Prejudice” is the effect that restricting communication may have on a defendant’s trial; that is, how, if at all, the defendant’s trial strategy was affected by the deprivation of his right to consult with counsel. We do not require a defendant to demonstrate the “prejudice” to his case because we do not want to infringe on the confidentiality of attorney-client communications. See Venuto, 182 F.2d at 522 .

However, a defendant need not disclose confidential information in order to prove that he has been “deprived” of an opportunity to meet with counsel. To show a “deprivation” of his sixth amendment rights, a defendant must merely demonstrate that he wanted to meet with counsel, but was prevented from doing so by the court’s instruction. The distinction between the “deprivation” of a right and the “prejudice” that may result therefrom is not a new one. In Cuyler v. Sullivan, 446 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980), the Supreme Court held that the mere possibility that a defendant’s attorney may have a conflict of interest is insufficient to demonstrate a deprivation of the defendant’s sixth amendment rights.

Only an actual conflict of interest would establish such a violation. The Court carefully noted that its requirement that a defendant show an actual conflict does not constitute a requirement that the defendant demonstrate prejudice. Id. at 349-50 , 100 S.Ct. at 1718-1719 . A showing that one has been “deprived” of his right to effective counsel is a predicate to relief; a showing of “prejudice” is not.

Bailey, 657 F.2d at 24 (cleaned up).14 a per se rule that such orders are violations of the Sixth Amendment right to assistance of counsel. The Court of Appeals concluded that an objection is not necessary to establish a violation because of the fundamental nature of the right to counsel and because defense counsel might be reluctant to object to a trial judge’s order in front of the jury. See id. at 1205 & n.7. 14 In Nelson, 884 F.3d at 1104 , the Eleventh Circuit considered a challenge to a conviction where, “just before an overnight recess that occurred while [the defendant] was on the stand, the court granted his lawyer’s request to speak to him ‘about matters other than his testimony.’” On direct appeal, the defendant challenged the trial court’s action as - 37 - In contrast, in Martin, 991 A.2d at 793 , the District of Columbia Court of Appeals held, on direct appeal, that a trial judge’s order that the defendant not speak with anyone over a weekend-long recess that interrupted his cross-examination constituted reversible error even though defense counsel did not object or otherwise address the order. The District of Columbia Court of Appeals observed that, in Geders and Perry, the Supreme Court held “that an order prohibiting a defendant from conferring with his counsel during an overnight (or other significant) interruption of his testimony is a denial of the defendant’s Sixth Amendment right to counsel that requires reversal without any showing of prejudice.” Martin, 991 A.2d at 793 (footnote omitted).

The District of Columbia Court of Appeals noted that, under its precedent, “an unconstitutional prohibition on a testifying defendant’s communication with his attorney during a recess is reversible error ‘regardless of whether prejudice was demonstrated, and despite [the defendant’s] failure to remonstrate against the court’s order.’” Martin, 991 A.2d at 793-94 (alteration in original) (footnote omitted). The District of Columbia Court of Appeals concluded that, because the “deprivation of counsel’s assistance is presumptively prejudicial” and violates a “transcendent” right under Jackson, the plain error standard applies. Martin, 991 A.2d at 794 (internal quotation marks omitted). The District of Columbia Court of Appeals was unconvinced by the government’s error under Geders, asserting that he should have been allowed to speak about any topic with his lawyer.

See Nelson, 884 F.3d at 1106 . The Eleventh Circuit reasoned that, “because the trial record doesn’t indicate that either [the defendant] or his lawyer had any intention or desire to discuss his testimony during the recess, [the defendant] can’t show that he was actually deprived of his right to counsel” under Eleventh Circuit precedent. Id. at 1107 . - 38 - argument that the defendant had to demonstrate “deprivation of his Sixth Amendment rights” with a showing “that he wanted to meet with counsel, but was prevented from doing so by the court’s instruction.” Id. at 795 (cleaned up). The District of Columbia Court of Appeals concluded that this framing was incorrect because, under Geders, Perry, and Jackson, the order itself was erroneous, so the government was effectively arguing that “the constitutional error was innocuous in the absence of evidence affirmatively showing that appellant actually wanted to confer with his attorney (or vice versa).” Martin, 991 A.2d at 795 .

That argument was foreclosed by Jackson, the District of Columbia Court of Appeals concluded, which “found plain error requiring reversal on a record devoid of evidence that appellant ‘actually’ wanted to exercise his Sixth Amendment rights.” Martin, 991 A.2d at 795 (footnote omitted). In any case, the District of Columbia Court of Appeals determined that the government’s reasoning was flawed: In essence, the government is arguing that appellant waived his Sixth Amendment right to the assistance of counsel by his failure to assert it—in other words, by his silence—when the trial judge erroneously undertook to curtail his exercise of the right. But “a valid waiver [of Sixth Amendment rights] cannot be presumed from a silent record.” For a waiver of the right to counsel to be valid, it must be “an intentional relinquishment or abandonment of a known right or privilege.” As the Supreme Court has emphasized, “the right to counsel does not depend upon a request by the defendant, and ... courts indulge in every reasonable presumption against waiver.” Thus, the burden is on the government to establish a valid waiver in this case, not on appellant to disprove it. The government has not carried that burden in this case.

The basic defect in its position is that the requisite knowledge and intent to support a finding of waiver cannot be inferred from the mere fact that appellant and defense counsel failed to object to the court’s sequestration order. As noted above, sequestration orders are appropriate when directed at ordinary witnesses; for aught that appears in the record, appellant and counsel (like the judge and the prosecutor) mistakenly believed them to be appropriate - 39 - when directed at testifying defendants too. Ignorance of one’s rights is not to be equated with a valid waiver. Id. at 795-96 (alteration, ellipsis, and emphasis in original) (footnotes omitted).

And, in Mastracchio, 416 A.2d at 117 , the Supreme Court of Rhode Island considered a defendant’s postconviction challenge to being “forbidden by the trial justice to talk with his counsel concerning any matter relating to the case during a weekend recess in the trial.” When the trial court “admonished applicant not to discuss the case with his attorney during the weekend recess[,]” defense counsel asked the court that he “be allowed * * * to talk to the Defendant not about any of his testimony[,]” but about “anything else[,]” although he did not “anticipate anything” at the time. Id. (ellipsis in original). Defense counsel stated that he wanted to be able to discuss anything “which may become relevant over the weekend.” Id.

The trial court denied the defendant’s request and defense counsel noted an exception, but it “was neither briefed nor argued on direct review.” Id. at 117-18 . The Supreme Court of Rhode Island held that the defendant “was deprived of his Sixth Amendment right to counsel during his trial by virtue of the order that he not consult with counsel during the weekend recess” and had not waived the challenge. Id. at 122 . The Supreme Court of Rhode Island declined to follow a Fourth Circuit opinion’s reasoning “that the reliability of the factfinding process was but slightly impaired by forbidding consultation between lawyer and defendant during an overnight recess[,]” and anchored its holding in the Supreme Court of the United States’s “high regard [] for the right to counsel and the presumed adverse effect of its denial upon the integrity of the factfinding - 40 - process[.]” Id.15 Application of the Principles Above to this Case The Sixth Amendment Right to Counsel After a careful review of the authorities above, we decline to adopt an “actual deprivation” standard which would require that, where a trial court issues a no- communication order between a defendant and trial counsel during trial and counsel fails to object, a postconviction petitioner must prove that the petitioner would have actually spoken with counsel in order to establish the actual denial of the assistance of counsel and therefore be entitled to a presumption of prejudice under Strickland.

Such an approach is inconsistent with the Sixth Amendment to the United States Constitution, Articles 21 and 24 of the Maryland Declaration of Rights, the Supreme Court of the United States’s holdings in Strickland, Geders, and Perry, and this Court’s case law. The “actual deprivation” standard conflicts with the right to counsel guaranteed by the Sixth Amendment. The right to counsel is automatic; a suggestion that it is available only to those defendants who prove they actually need the assistance of counsel countermands this fundamental constitutional guarantee. Yet, this is essentially what the 15 In Torres, 997 F.3d at 627 , the Fifth Circuit held that a trial court’s prohibition on the defendant “from speaking with his counsel during a 13-hour overnight recess declared in the middle of his direct examination, right before the end of the trial the next day” fell “squarely within the Geders rule[.]” After the trial court instructed the defendant not to speak with anyone, “not even” counsel, about his testimony, defense counsel asked: “I’m not sure, did you just say I cannot talk to my client?”, and the court responded in the affirmative, to which counsel responded simply: “Thank you.” Torres, 997 F.3d at 626 .

As the case was on direct appeal and defense counsel had made no objection, the Fifth Circuit reviewed the order for plain error, and focused on whether it affected any “substantial rights.” Id. at 628 . - 41 - “actual deprivation” standard requires. It is a fundamental principle that a criminal defendant does not have to prove that the defendant will utilize a lawyer to benefit from the Sixth Amendment right at a critical stage of a criminal proceeding. This principle must not be disregarded in favor of a requirement that, in order to have the right to counsel during an overnight recess in the middle of a criminal trial, defendants must establish that they actually want or need to speak with counsel during the recess. The “actual deprivation” standard abrogates what should be an unfettered right to counsel at a critical stage of a criminal proceeding, i.e., trial.

Although courts in other jurisdictions may have adopted this standard, this Court is not bound by their decision to adopt a rule that is inconsistent with the underpinnings of the Sixth Amendment and conflicts with our case law and the case law of the Supreme Court of the United States. In this case, a violation of the Sixth Amendment right to counsel resulted from trial counsel’s failure to object to the trial court’s order preventing Mr. Clark and trial counsel from communicating about the case during an overnight recess, which necessarily interfered with “the defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess,” Perry, 488 U.S. at 284 (citing Geders, 425 U.S. at 88 ), and “prevented [counsel] from assisting the [defendant] during a critical stage of the proceeding[,]” Cronic, 466 U.S. at 659 n.25 (citations omitted). The Sixth Amendment’s guarantee of the defendant’s right to consult with counsel, like the right to counsel of choice, is “a particular guarantee of fairness” that must be provided by the courts. United States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006).

Barring all communication between a defendant and trial counsel about the case - 42 - for such a long period of time during a criminal trial eviscerates that right, and a defendant should not be required to prove or show how the right would have been exercised to demonstrate prejudice. The right to counsel at critical stages of criminal proceedings is an absolute and unqualified right. This Court has even recognized that it requires government-provided counsel in the context of certain civil cases and when “an indigent defendant [appears] at an initial hearing before a District Court Commissioner.” DeWolfe v. Richmond, 434 Md. 444, 464 , 76 A.3d 1019, 1031 (2013) (footnote omitted). The actual deprivation standard restricts the right to counsel and is inconsistent with our case law.

Indeed, an adoption of such a standard would abrogate, if not overrule, case law regarding the presumption of prejudice in cases of both “actual or constructive denial” of the assistance of counsel. Under the State’s theory, application of the “actual deprivation” rule would also require petitioners in cases of the alleged constructive denial of the right to counsel to prove that they somehow sought, desired, or wanted their counsel to act or object in instances where counsel made no objections or arguments. See, e.g., Bowers, 320 Md. at 425 , 578 A.2d at 738 ; Redman, 363 Md. at 310-11 , 768 A.2d at 663 . That the Supreme Court and this Court have consistently spoken about the actual or constructive denial of the right to assistance of counsel as a presumptively prejudicial constitutional violation and never mentioned the words “actual deprivation” or required a defendant to demonstrate or prove anything as a condition precedent to the presumption applying is not an issue of mere semantics.

Rather, the emphasis on the “denial” of the right reflects how a lengthy no-communication order itself prevents access to counsel - 43 - during a critical stage of a criminal proceeding. The focus is on the order’s interference with Mr. Clark’s right to counsel, by creating a “sustained barrier to communication[,]” Geders, 425 U.S. at 91 , during a “critical stage” of the criminal proceeding and “prevent[ing counsel] from assisting the [defendant] during a critical stage of the proceeding,” Cronic, 466 U.S. at 659 n.25, not on Mr. Clark’s mindset at the time. The Maryland Declaration of Rights Although under our case law interpreting the Sixth Amendment and the case law of the Supreme Court of the United States, the “actual deprivation” test is inappropriate, this conclusion is also warranted by our precedent establishing “that the due process right to counsel under Article 24 of the Declaration of Rights is broader than the right to counsel under Article 21 or the Sixth Amendment[,]” which “has been reaffirmed by this Court on numerous occasions.” Richmond, 434 Md. at 460 , 76 A.3d at 1028 (citations omitted). Moreover, in ineffective assistance of counsel cases, we have held that Article 21 provides protections to a criminal defendant’s right to counsel above and beyond that determined by the Supreme Court as to the Sixth Amendment.

See Perry v. State, 357 Md. 37 , 85 & n.11, 741 A.2d 1162 , 1188 & n.11 (1999). Article 21 sets forth multiple rights, including the right to counsel, while Article 24 protects the right to due process. Article 24 provides: That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land. The right to counsel under Article 24 of the Maryland Declaration of Rights is - 44 - broader than the right to counsel under the Sixth Amendment.

We have repeatedly recognized “that the protections provided under Article 24 are broader than those found in the United States Constitution” and “that the due process right to counsel under Article 24 [] is broader than the right to counsel under Article 21 or the Sixth Amendment[.]” DeWolfe, 434 Md. at 457 n.9, 460, 76 A.3d at 1026 n.9, 1028 (citations omitted). For instance, unlike the right to counsel under Article 21 and the Sixth Amendment, the right to counsel under Article 24 is not necessarily limited to critical stages of criminal proceedings. See id. at 459-60 , 76 A.3d at 1028 . In Richmond, id. at 456-57 , 76 A.3d at 1026 , we held that, under Article 24, an indigent defendant has a right to counsel at an initial appearance before a District Court Commissioner, and we expressly refrained from deciding whether there is such a right under Article 21 or the Sixth Amendment.

Article 21 provides: That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses for and against him on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty. The right to counsel under Article 21, in ineffective assistance of counsel cases, has been found to be broader than the right to counsel under the Sixth Amendment.16 One case 16 In addition, recently, in Leidig v State, 475 Md. 181, 234-42 , 256 A.3d 870 , 901- 05 (2021), after previously having held that the right to confrontation of witnesses under Article 21 is read in pari materia with the right to confrontation under the Sixth - 45 - demonstrating this is Perry, 357 Md. at 85 , 741 A.2d at 1188 , in which “we reject[ed] as a matter of independent Maryland law under Article 21 [] the notion that a defendant is never prejudiced under a Strickland-type analysis when reliable, though legally inadmissible, evidence is admitted against him or her.” (Footnote omitted). We acknowledged that “[w]e have traditionally regarded the right to counsel guaranteed under Article 21 as being the same right provided by the Sixth Amendment, and, in construing Article 21, we have followed and applied the decisions of the Supreme Court interpreting the Federal provision.” Perry, 357 Md. at 85 n.11, 741 A.2d at 1188 n.11 (citations omitted). Nonetheless, we adopted our own “construction of the independent Maryland Constitutional provision” and observed that, “[i]f the Supreme Court were to rule upon the issue, we obviously would be bound by its judgment when interpreting the Sixth Amendment, . . . but it would not serve, on its own, to alter the declaration made in [Perry] regarding Article 21.” Id. at 85 n.11, 741 A.2d at 1188 n.11.

We reached a similar conclusion in Taylor v. State, 428 Md. 386, 410 , 51 A.3d 655, 669 (2012), in which we held that a “presumption of prejudice applies when a defendant alleges ineffective assistance of counsel based on an attorney’s personal conflict of interest due to the attorney’s filing suit against the client before trial for unpaid legal fees arising from the very action where the attorney is representing the client[.]” We observed that different jurisdictions had reached different results in deciding whether a presumption of Amendment, this Court held that Article 21 should be read differently with respect to the right to confront witnesses than the Supreme Court has interpreted the Sixth Amendment, and determined under Article 21 the basis for assessing whether a statement contained in a scientific report is testimonial. - 46 - prejudice can be based on a conflict of interest that does not involve representing multiple defendants at the same time. See id. at 410 n.13, 51 A.3d at 669 n.13. We concluded that the presumption was warranted in Taylor, regardless of whether the right to counsel was “rooted in the Sixth Amendment [] or Article 21[].” Id. at 410 n.13, 51 A.3d at 669 n.13. In other words, the right to counsel under Article 21 was broad enough for the presumption of prejudice to apply in Taylor, even if it did not under the Sixth Amendment.17 In this case, the State’s “actual deprivation” approach would permit a trial court to deny a defendant the robust right to the effective assistance of counsel guaranteed by the Maryland Declaration of Rights—a right that this Court has held to provide broader protection than its federal equivalent—unless the defendant can prove that the defendant wanted to exercise or would have exercised the right.

Just as we concluded in Taylor that a presumption of prejudice was warranted based on the right to counsel guaranteed by Article 21 of the Maryland Declaration of Rights, we now hold that where a defendant alleges ineffective assistance of counsel based on trial counsel’s failure to object to a no- communication order preventing all communication between trial counsel and a defendant 17 We are aware that, in other cases, we have stated “that Article 21 and the Sixth Amendment [] are to be read in pari materia” and that Article 21 “does not afford any right to counsel which is more expansive than that afforded by the Sixth Amendment.” Grandison v. State, 425 Md. 34, 56, 64 , 38 A.3d 352, 365, 370 (2012) (citations omitted). Nonetheless, we have never overruled Perry or Taylor, which remain good law and continue to show that the right to counsel under Article 21 is, in at least some respects, broader than the right to counsel under the Sixth Amendment. Indeed, in Richmond, 434 Md. at 458 n.11, 76 A.3d at 1027 n.11, we reaffirmed that, under Perry, 357 Md. at 85 -87 & n.11, 741 A.2d at 1188 -1189 & n.11, “the Right-to-Counsel Clause of Article 21 is an ‘independent Maryland Constitutional provision,’ and [] Supreme Court decisions under the Sixth Amendment would not be binding with regard to the Right-to-Counsel Clause of Article 21.” - 47 - about the case during an overnight recess in a criminal trial, a presumption of prejudice is warranted under our own “construction of the independent Maryland Constitutional provision[s,]” Articles 21 and 24 of the Maryland Declaration of Rights. Perry, 357 Md. at 85 n.11, 741 A.2d at 1188 n.11.

And a defendant need not make any showing or demonstration of a desire or need to speak with counsel, as a condition precedent, for prejudice to be presumed under Maryland’s Constitutional provisions. In other words, a presumption of prejudice is warranted in such circumstances under Articles 21 and 24 of the Maryland Declaration of Rights, regardless of whether it may be warranted under the Sixth Amendment. Relevant Sixth Amendment Case Law The most on-point governing precedent from the Supreme Court of the United States interpreting the Sixth Amendment right to counsel establishes two categories of no- communication orders and determines constitutionality based on whether a denial-of- access order fits into one category or the other. In Geders and Perry, the Supreme Court made no distinction between the application of the presumption of prejudice on direct appeal and in the postconviction context in finding a violation of the Sixth Amendment right to counsel based on a no-communication order.

See Geders, 425 U.S. at 85-86 , 88- 92; Perry, 488 U.S. at 275-85 . The Supreme Court held in Perry that its holding in Geders, that a lengthy overnight no-communication order constitutes an unconstitutional denial of the assistance of counsel and warrants a presumption of prejudice, is applicable to ineffective assistance of counsel cases and, specifically, that the holding was incorporated into Strickland. See Perry, 488 U.S. at 279-280 (describing how Strickland’s citation of - 48 - Geders set apart cases of actual or constructive denial of the assistance of counsel “altogether” from other challenges under Strickland that require “determining whether the quality of a lawyer’s performance itself has been constitutionally ineffective”). The circumstance that the actual denial of the assistance of effective counsel altogether may be due to either government interference or deficient performance by counsel was not discussed by the Supreme Court in Strickland as a distinguishing factor for conduct warranting a presumption of prejudice.

Rather, in Strickland, 466 U.S. at 692 , the Supreme Court concluded that a per se presumption of prejudice applies both to certain types of government interference and to the actual or constructive denial of the assistance of counsel. The limitation or difference in the application of the presumption of prejudice in Strickland was said to apply to cases of attorney conflict of interest for which the Supreme Court set forth a two-part test to be applied in determining whether a presumption of prejudice is warranted. See id. (“Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’”).18 That said, in Geders, the Supreme Court classified as unconstitutional, without a 18 In the case of a no-communication order, trial counsel’s failure to object allows the order to take effect, as we assume the trial judge would have followed the law and corrected the error had counsel objected.

See Newton, 455 Md. at 361 , 168 A.3d at 12 -13 (quoting Strickland, 466 U.S. at 694 ). So, defense counsel’s deficient performance, if any, is inaction, i.e., a failure to object. In a postconviction matter where ineffective assistance of counsel is alleged based on trial counsel’s failure to object to a no-communication order, our focus in determining whether a presumption of prejudice is warranted is on the constitutionality or unconstitutionality of the order, just as it would be on direct appeal and as was the Supreme Court of the United States’ focus in Perry, a federal habeas corpus case. See Perry, 488 U.S. at 278-80, 284 . - 49 - showing of prejudice, those no-communication orders that cover a significant range of time—certainly overnight or longer, perhaps slightly shorter.

Although Geders involved a direct appeal, there is no difference in the approach. The logic behind this approach is that prohibitions on consultation for such periods of time are likely to infringe on the defendant’s “right to unrestricted access to his lawyer for advice on a variety of trial-related matters[.]” Perry, 488 U.S. at 284 . The same concern is not present in the second category of cases: no-communication orders governing brief recesses amidst the defendant’s testimony, which Perry designates as constitutional because of their brevity, the likelihood that nothing other than testimony would be discussed, and the trial court’s power to require continuity of testimony in these circumstances. The constitutional infirmity of Geders-like no-communication orders is “driven by the recognition that certain types of conduct are in general so antithetic to effective assistance . . . that a case-by-case analysis simply is not worth the cost of protracted litigation[,]” Scarpa v. Dubois, 38 F.3d 1, 12 (1st Cir. 1994), cert. denied, 513 U.S. 1129 (1995) (emphasis in original), whereas brief Perry-like orders do not implicate such an adverse effect on the effective assistance of counsel generally.

The Supreme Court has endorsed a rule for overnight blanket bans on communication between defendant and counsel because they “pose such a fundamental threat to a fair trial that reversal of a conviction should be automatic.” Perry, 488 U.S. at 276, 280 . In Geders, the Supreme Court implicitly rejected the kind of argument made by the State in this case. In 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). By treating the question of whether there was a desire to exercise the right to consult with counsel as a question of prejudice and overturning the Fifth Circuit’s decision in Geders, and affirmatively stating in Perry that prejudice is irrelevant to the actual denial of the assistance of counsel analysis in the context of lengthy no-communication orders, the Supreme Court held that such an order itself is violative of Sixth Amendment rights, without the need to inquire into the defendant’s intent to consult with counsel.

This Court has agreed with that approach. See Wooten-Bey v. State, 318 Md. 301, 307 , 568 A.2d 16, 19 (1990) (“There is a distinction between the ‘actual or constructive denial of the assistance of counsel altogether,’ and whether the quality of the lawyer’s performance itself has been constitutionally ineffective.” (Cleaned up)). The Supreme Court and this Court have put significant weight on the fundamental nature of the right to counsel for a criminal defendant, and the Supreme Court has held that the right should not be impeded with lengthy, blanket no-communication orders. The Supreme Court’s incorporation of Geders into its analysis in Strickland, and its clarification of the above point in Perry, instruct that the presumption of prejudice for denial of the assistance of counsel does not vary based on whether it is challenged on direct appeal or in a deficient performance of counsel context.

To the contrary, we have stated that “[i]n United States v. Cronic, . . . decided the same day as Strickland, the Supreme Court established that certain deficient performances of counsel justified a per se - 51 - presumption of ineffectiveness under the Sixth Amendment.” Walker, 391 Md. at 246 , 892 A.2d at 554 (citation omitted). Indeed, in Strickland, 466 U.S. at 692-93 , the Supreme Court directed that in cases of actual or constructive denial of the assistance of counsel, courts are to presume prejudice rather than assess whether defense counsel’s errors “actually had an adverse effect on the defense.” Yet, in this case, the State suggests that we do precisely the opposite by looking to whether Mr. Clark can prove that he actually would have spoken with counsel during the overnight recess. It is not clear how the “actual deprivation” test is different from the “actual[] . . . adverse effect” test that the Supreme Court has held does not apply to this type of no-communication order. Id.; Geders, 425 U.S. at 91 .

Although neither case pertained to a claim involving the actual denial of the assistance of counsel, both Weaver and Ramirez guide our holding, because the cases reinforce the principle that the actual denial of the assistance of counsel is one of three limited exceptions in which a postconviction petitioner is not required to prove prejudice and that the actual denial of the assistance of counsel is a form of structural error that is treated the same on direct appeal and in postconviction proceedings. In Weaver, 582 U.S. at 290 , the Supreme Court of the United States did not have occasion to address an issue involving the actual denial of the assistance of counsel; rather, the question before the Supreme Court involved alleged structural error in the form of a limit on a defendant’s right to a public trial. The Supreme Court held that a violation of the constitutional right to a public trial, which would on direct appeal result in automatic reversal without inquiry into prejudice, is not entitled to a presumption of prejudice when it is raised in an - 52 - ineffective assistance of counsel challenge. See id. at 290, 300-01 .

In Weaver, id. at 301 , however, the Supreme Court made clear that “certain errors are deemed structural and require reversal because they cause fundamental unfairness[.]” Following the lead of the Supreme Court of the United States in Weaver, in Ramirez, 464 Md. at 575-77 , 212 A.3d at 389-90 , this Court refused to expand the three exceptions to the requirement to prove prejudice under Strickland to include an additional category of structural error—an attorney’s deficient performance during voir dire in jury selection process. In Ramirez, 464 Md. at 572-73 , 212 A.3d at 387 , this Court made clear that there are three limited exceptions to a defendant’s need to demonstrate prejudice post- conviction: (1) the actual denial of the assistance of counsel; (2) the constructive denial of the assistance of counsel; and (3) an actual conflict of interest. This Court made equally clear that these three exceptions are treated no differently on postconviction as structural error than on direct appeal—instead, these exceptions are entitled to a presumption of prejudice in both contexts, while other types of structural error may not be. See id. at 572- 73, 212 A.3d at 387 ; see also id. at 562 , 212 A.3d at 381 (contrasting the general rule in ineffective assistance of counsel cases that petitioner had the burden “to satisfy both the performance prong and the prejudice prong” with the contexts in which “prejudice is presumed,” including “actual or constructive denial of the assistance of counsel” (cleaned up)).

Our statement in Ramirez, quoting the Supreme Court’s description of the actual denial of the right to counsel, as occurring “where ‘counsel was either totally absent, or prevented from assisting the [petitioner] during a critical stage of the proceeding,’” id. at - 53 - 574, 212 A.3d at 388 (quoting Cronic, 466 U.S. at 659 n.25), demonstrates that this Court has long been aware that the actual denial of the assistance of counsel is described as counsel either being totally absent or being prevented from assisting, and we have never interpreted anything about the word “prevent” to require that a postconviction petitioner demonstrate or prove that the petitioner would have spoken with counsel in order to be entitled to a presumption of prejudice. Rather, this Court has consistently stated that the denial of the assistance of counsel is a form of error that requires no showing of prejudice on direct appeal or post-conviction—no more, no less. See Ramirez, id. at 574-75, 212 A.3d at 388-89 . This makes sense because, at the risk of stating the obvious, dictionary definitions of the word “prevent” do not give rise to a requirement that there must be a demonstration or showing that something is desired or needed to happen in order for the word “prevent” to apply.

The word prevent is defined in relevant part as “to keep from happening or existing” and “to deprive of power or hope of acting or succeeding[.]” Prevent, Merriam- Webster (2023), https://www.merriam-webster.com/dictionary/prevent [https://perma.cc/ 2L8F-5FKU]; see also Prevent, Oxford English Dictionary (2023), https://www.oed.com/ search/dictionary/?scope=Entries&q=prevent [https://perma.cc/WCL9-SCTY]. (Prevent means “[t]o preclude the occurrence of (an anticipated event, state, etc.)[.]”). Nothing about the definition of the word prevent requires proof by a defendant that the defendant wanted to speak with counsel in order for the defendant to have been prevented from doing so. For example, consider how the word prevent is used in the following sentence: “The gate prevented access to the driveway.” It is not necessary to prove that anyone wanted to - 54 - use the driveway to establish that the gate prevented or blocked access.

In addition, the word prevent is not used as part of the description of the actual denial of the assistance of counsel where counsel is “totally absent[.]” Cronic, 466 U.S. at 659 n.25. The approach espoused by the State sets up the dichotomous situation that a defendant would be required to demonstrate that the defendant wanted or needed to speak with counsel where assistance was prevented, but no such demonstration would be required where counsel was totally absent. This could not have been what the Supreme Court of the United States intended when describing the complete denial of the assistance of counsel. See id. at 659 & n.25.

Constructive Denial of the Assistance of Counsel In the same vein, the “actual deprivation” test is at odds with precedent holding that prejudice is presumed from the constructive denial of the assistance of counsel, i.e., counsel is present but “fails to subject the prosecution’s case to meaningful adversarial testing” or the context makes the provision of effective assistance nigh impossible, regardless of counsel’s skills. See Cronic, 466 U.S. at 659 ; Ramirez, 464 Md. at 574 , 212 A.3d at 388 . In such a circumstance, we do not require the defendant to demonstrate how the attorney’s actions (or lack thereof) caused an actual deprivation of counsel based on a defendant’s desire to speak with counsel or desire to have counsel behave differently. Instead, the focus is on the interference with counsel’s assistance or defense counsel’s inadequate actions.

See Perry, 488 U.S. at 279 ; Strickland, 466 U.S. at 686 . For example, we would not have expected the defendant in Brooks v. Tennessee, 406 U.S. 605 (1972) to demonstrate how the law requiring him to testify first for the defense or not at all deprived him of effective - 55 - assistance of counsel.19 Nor would the lack of an objection or contemporaneous demonstration by a defendant of the desire for different counsel mean the defendant was not constructively denied counsel when defense counsel’s own conduct constituted constructive denial, such as defense counsel’s absence “during cross-examination of [a] key government witness by [an] attorney for a codefendant[.]” Redman, 363 Md. at 312 - 13, 768 A.2d at 664 (cleaned up). Plainly, constructive denial of the assistance of counsel hinges on the actions of counsel or the court, not on whether the defendant can prove a contemporaneous request or desire for different conduct. This is because the conduct at issue threatens the fairness of the trial so significantly that an individualized prejudice analysis is inappropriate.

See Perry, 488 U.S. at 280 . In our controlling case law, the subjective perspective of the defendant has no bearing on the constructive denial of the assistance of counsel assessment. As a result, the adoption of an “actual deprivation” test would in effect overrule precedent on both actual denial and constructive denial of the assistance of counsel. Applying the doctrine of stare decisis, nothing has changed in the law or facts to merit departure from precedent under which prejudice is presumed in cases of actual or constructive denial of the assistance of counsel, without a petitioner satisfying any conditions precedent.

There is no basis for overruling our past decisions. Nor is there any basis in our precedent for a new approach. 19 In Strickland, 466 U.S. at 686 , the Supreme Court cited Brooks, along with Geders, as examples of governmental interference with the right to counsel that merits a presumption of prejudice. - 56 - Actual Deprivation Test: Practical Concerns Contrary to this binding precedent, the actual deprivation standard renders the “presumed prejudice” rule of Strickland, with respect to the actual denial of the assistance of counsel, which has long been incorporated into our case law, meaningless. The idea that “actual deprivation” or prejudice may be shown in a postconviction proceeding by the existence of an objection to a no-communication order is illusory. When defense counsel objects to a trial court’s no-communication order, and is overruled, the issue will almost always be resolved on direct appeal.

Therefore, when an objection is raised, a no- communication order will not normally lead to any Strickland claim. It is only in the context of the lack of an objection by trial counsel that a petitioner would likely bring an ineffective assistance of counsel claim after a finding of lack of preservation on direct appeal, as in this case. And only in this circumstance would the presumption of prejudice have any significance. So, the State’s suggestion that the primary and most effective way of showing “actual deprivation” would be an objection, would put in place the exact mechanism that would obviate the need for a Strickland ineffective assistance of counsel claim in the first place.

Instead, the unlucky defendant with counsel who failed to raise an objection to an obvious Geders violation would be required to prove “actual deprivation” by some unclear method, with various associated problems discussed below. The approach would effectively make obsolete the Supreme Court’s application of the presumption of prejudice for those “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified[,]” such as the “obvious” circumstance of a - 57 - Geders-like “denial of the assistance of counsel” during a critical stage of trial. Cronic, 466 U.S. at 658 -59 & n.25 (footnote omitted). Case law makes clear that the Supreme Court of the United States views orders interfering with counsel-defendant communication overnight as being of such constitutional magnitude as to justify a presumption of prejudice in ineffective assistance claims.

An “actual deprivation” rule would make this exception to Strickland’s prejudice prong all but meaningless and run contrary to the importance the Supreme Court of the United States and this Court have placed on the right to counsel. The “actual deprivation” test, in a case like this, where the trial court forbade Mr. Clark from any communication about the case with his counsel or anyone else overnight in the midst of trial, puts the defendant in a no-win situation. As observed by Mr. Clark, whether the defendant independently objects to the order is generally not a question asked at trial, because objecting is solely counsel’s responsibility. But, when defense counsel does not object, due to the existence of the blanket no-communication order, the defendant cannot even ask counsel about the propriety of the order or let counsel know that the defendant wishes to speak with counsel.

In the absence of an objection by counsel, a defendant who obeys the order cannot consult with counsel and thus cannot speak with counsel about the order, and counsel is unable to even advise the defendant how to potentially preserve the right to counsel (by, say, telling the court the next day that the defendant wanted to speak with counsel but could not), and likely would not even think to do so because of counsel’s failure to notice the Geders violation. In this instance, defense counsel, the one person whom the defendant relies on for a “guiding hand” in the trial, Geders, 425 U.S. at 89 , has indicated that the order is legitimate - 58 - by not objecting, and the defendant cannot ask that person whether the situation might be otherwise. This distinguishes the situation from any other error to which defense counsel does not object and counsel and the defendant may discuss the circumstance. Simply put, the Sixth Amendment right to counsel should not be restricted in such a way during a criminal trial.

Critical to our conclusion is the nature of the no-communication order in this case: it was for overnight and applied to any discussion of the case with defense counsel or anyone else. The importance of the length is obvious in light of Perry, which distinguishes from this case the cases from other jurisdictions relied on by the State that concerned lunch or other brief recesses. See, e.g., Wallace, 851 So. 2d at 217 ; Brooks, 505 N.E.2d at 340 . The all-encompassing, i.e., blanket nature, of the no-communication order pertaining to any discussion whatsoever about the case also distinguishes it from cases cited by the State in which orders applied only to discussion of the defendants’ testimony.

See, e.g., Bailey, 657 F.2d at 22 (per curiam); Stubbs, 689 F.2d at 1206 ; Crutchfield, 803 F.2d at 1104 . Although federal circuits are in unanimous agreement that an objected-to restriction on discussion of testimony is reversible error, a ban on discussion of testimony alone when not objected to may be treated differently. That is because, with a ban on discussion of testimony, a defendant could still ask counsel most questions, perhaps alerting counsel that the defendant has a question about testimony, perhaps persuading counsel to object after all. In the case of a blanket ban on discussion of the case, however, this could not happen.

As a practical matter, once an unobjected-to blanket no-communication order is issued, a defendant believes that communication with counsel about the case is not possible - 59 - and the order itself chills a defendant’s desire or wish to speak with counsel. The actual deprivation test requires a defendant to prove in retrospect that the defendant would have done something, i.e., spoken with counsel, that the court ordered the defendant not to do, and that the defendant may have, as a result, abandoned, given up, or not developed any aspiration to do. Further, a court’s inquiry into whether the defendant wanted to exercise this fundamental right to counsel could easily veer into a consideration of whether the reason the defendant wished to converse with counsel was legitimate or important enough. For example, if Mr. Clark had asserted at the postconviction hearing that he wished to ask his attorney about a relatively insignificant issue, such as how long the cross-examination would take, a court would be invited to undertake the exact sort of weighing of harm that Geders and Perry do not allow.

This brings up the difficulty of determining what is sufficient to show an “actual deprivation” of Mr. Clark’s right to counsel in this context. The State’s proposed test for “actual deprivation” is unworkable. Certainly, aspects of the State’s proposed rule are consistent with the approach of other jurisdictions: for instance, the State contends that an objection would satisfy the rule, but as discussed, if an objection were made, the matter likely would have been resolved on direct appeal and not be before a postconviction court on the issue of ineffective assistance of counsel. The State indicates that, in the absence of an objection, “there may be sufficient indication in the record on direct appeal to satisfy the actual-deprivation standard.” (Citation omitted).

However, beyond the trial record, the State contends that a defendant could demonstrate that a desire to meet with counsel existed through testimony at the postconviction hearing, and “the credibility of [such] an - 60 - assertion . . . would be enhanced by the disclosure of some degree of concrete detail about the topics of the desired communication.” The suggestion regarding the need for testimony at a postconviction hearing is in effect a recognition of the unlikelihood that a defendant at trial would be in any position to express a desire on the record (during trial) to meet with counsel in the face of an unobjected-to order not to do so. In any event, it is not difficult to imagine the inevitable challenge to a defendant’s credibility that such testimony would encounter during a postconviction hearing. In addition, requiring such testimony would threaten attorney-client confidentiality and potentially give rise to tension between a defendant’s Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination. Obviously, in an