Sotomayor criticizes prosecutors’ decision to retry woman after seeing privileged documents
By Steve Lash
BridgeTower Media Newswires
BALTIMORE, MD — The U.S. Supreme Court on Monday let stand the first-degree murder conviction of a woman who killed her husband’s ex-wife in Germantown but not without a justice’s sharp criticism of the prosecutors’ decision to retry her despite being privy to her private communications with her first defense attorney.
Justice Sonia Sotomayor, in a written statement, said she agreed with the high court’s decision not to hear Raminder Kaur’s appeal. However, that did not absolve the Montgomery County prosecutors of having gone forward with Kaur’s second prosecution after having seen the privileged documents when Kaur waged a successful ineffective assistance of counsel challenge to her first conviction, Sotamayor added.
“Prosecutors wield an immense amount of power, and they do so in the name of the state itself,” Sotomayor wrote.
“That unique privilege comes with the exceptional responsibility to ensure that the criminal justice system indeed serves the ends of justice,” Sotomayor added. “Prosecutors fall short of this task, and therefore do a grave disservice to the people in whose name they litigate, when they permit themselves to enjoy unfair trial advantages at defendants’ expense. Here, regardless of the reason for their acquisition of Kaur’s privileged information ... the prosecutors should have recused themselves from participating in Kaur’s second trial as a matter of professional conscience.”
The prosecutors’ failure to recuse “casts a troubling and unnecessary shadow over Kaur’s conviction and sentence to life imprisonment,” Sotomayor wrote.
Montgomery County State’s Attorney John McCarthy did not immediately respond Monday to a request for comment on Sotomayor’s statement.
Kaur had appealed her conviction to the high court, arguing she was denied a fair trial because prosecutors had access to her privileged communications with her lawyer as well as the attorney’s investigative materials. The information was revealed to prosecutors during Kaur’s ineffective assistance of counsel claim against her first lawyer, a victory that overturned her initial conviction and led to the controversial second trial and guilty verdict.
In it its successful request that the justices reject Kaur’s appeal, Maryland Attorney General Brian Frosh cited lower court cases it said held that defendants waive attorney client privilege when claiming ineffective assistance of counsel.
Sotomayor criticized that argument.
“(I)t is deeply disconcerting that the state has suggested that defendants who raise ineffective assistance of counsel claims during the trial phase must forfeit their right to privileged communication with counsel,” Sotomayor wrote. “To vindicate the past denial of her (constitutional) Sixth Amendment right to effective assistance of counsel, a defendant should not have to waive her Sixth Amendment right to attorney-client confidentiality for purposes of any retrial to which she is entitled.”
Sotomayor also questioned Frosh’s argument that prosecutors did not change their trial strategy after the discovery and, thus, Kaur’s defense was not harmed by the prosecution’s access to the attorney-client information.
The justice said the prosecutors knowledge “could have subtly but indelibly affected” the second trial without the prosecution even being attuned to the alterations.
Kaur might have been discouraged from testifying in her own defense due to concern about what prosecutors might have gleaned from her privileged conversations with counsel, Sotomayor wrote.
“The prosecutors, either intentionally or subconsciously, may have selected a different mix of jurors,” the justice added.
“They may have changed their pretrial preparation, perhaps by emphasizing different parts of the state’s case or focusing on different weaknesses in the defense,” Sotomayor wrote. “Or they may have considered different lines of questioning, brainstormed different objections, or anticipated different arguments.”
Sotomayor added that “it would be an impossible task for any court, no matter how diligent, to identify and assess all potential sources of prejudice simply by comparing the records” of the defendant’s first and second trials.
The attorney general’s office did not immediately respond Monday to a request for comment on the justice’s statement.
Sotomayor concluded the high court correctly denied review of Kaur’s appeal, saying the issue of whether the Sixth Amendment bars prosecutors from retrying a defendant when they did not “surreptitiously” gain access to the privileged information “could benefit from further consideration by the lower courts” before it gets a Supreme Court hearing.
The case was docketed at the Supreme Court as Raminder Kaur v. State of Maryland, No. 19-1045.
Kaur was convicted twice of shooting Preeta Gabba to death shortly after she left home to catch a bus to work on Oct. 12, 2013.
Kaur was afforded the second trial based on her successful claim she had received ineffective assistance the first time. She alleged her lawyer was unprepared for trial, failed to raise the issue of Kaur’s competency to stand trial, and did not seek subpoenas for documents related to potential defenses.
To prove her counsel ineffective, Kaur had to provide documentation of her communications with her attorney, as well as documents related to the lawyer’s investigation. Prosecutors were provided access to this generally privileged information as part of their ultimately unsuccessful challenge to Kaur’s ineffective assistance claim and bid for a retrial.
Those same prosecutors retried Kaur — and again won conviction.
The prosecution’s theory at both trials was that Kaur and her husband, Baldeo Taneja, conspired to kill Gabba, and that Kaur fired the three fatal shots at close range.
Three witnesses at the 7:45 a.m. slaying all testified they saw a woman fleeing the scene.
Prosecutors said the motive for the killing was to relieve Taneja of his obligations to pay Gabba $2,400 per month in alimony and to transfer what had been their marital property in India. The day after the slaying, arresting officers found in Taneja and Kaur’s car a .357 Luger LCR revolver, which was later identified as the murder weapon.
The Maryland Court of Special Appeals, the state’s second-highest court, cited the prosecutors’ lack of reliance or change in strategy in upholding Kaur’s conviction in an unreported opinion last year. Last October, the Maryland Court of Appeals denied without comment Kaur’s petition for review, prompting her appeal to the Supreme Court.
Taneja was tried with Kaur at the first trial, in 2014, and was also convicted of first-degree murder, conspiracy to commit first-degree murder and use of a handgun in a violent crime. He was also sentenced to life in prison.
Taneja was not a party to Kaur’s petition for Supreme Court review.
