Kaur v. Maryland

1 Cite as: 592 U. S. ____ (2020)
Statement of S
OTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
RAMINDER KAUR v. MARYLAND
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
SPECIAL APPEALS OF MARYLAND
No. 19–1045. Decided October 5, 2020
The petition for a writ of certiorari is denied.
Statement of J
USTICE SOTOMAYOR respecting the denial
of certiorari.
Although I join the Court’s decision to deny certiorari, I
write separately to address a concerning feature of this pe-
tition: The prosecutors who tried this case had extensive
knowledge of defense counsel’s confidential communica-
tions with the defendant, petitioner Raminder Kaur. For
the reasons stated below, I fear that, in this case, the crim-
inal justice system failed to live up to its highest ideals.
In 2014, Kaur was convicted of first-degree murder by a
Maryland jury. Shortly thereafter, she moved for a new
trial on the ground that her defense attorney had provided
her with ineffective assistance of counsel. The trial court
ordered Kaur to turn over her “entire defense file” so that
prosecutors could respond adequately to her motion. 2019
WL 2407997, *5 (Md. Ct. Spec. App., June 7, 2019). After
holding a multiday hearing, the court concluded that “the
interests of justice required granting Ms. Kaur a new trial.”
Id., at *6; see Md. Rule 4–331(a) (2020).
Because she had disclosed “a considerable amount of
privileged information, including communications between
[her] and her lawyers, communications between her law-
yers and their support staff, and her lawyers’ investigative
and strategic work-product,” Kaur asked the court for a pro-
tective order barring the prosecutors who had personally
reviewed her defense file from retrying her case. 2019 WL
2407997, *1. The court agreed to prohibit the State from

2 KAUR v. MARYLAND
Statement of S
OTOMAYOR, J.
making use of Kaur’s privileged information at trial, but it
denied her request to be tried by an untainted prosecution
team. As a result, the same lawyers who were “exposed to
all of Ms. Kaur’s privileged information” tried Kaur a sec-
ond time. Id., at *17. Kaur was again convicted, and she
was sentenced to life imprisonment.
Kaur appealed to the Court of Special Appeals of Mary-
land, arguing (as relevant here) that the State violated her
Sixth Amendment right to counsel by permitting attorneys
who had reviewed her privileged information to prosecute
her case. As an initial matter, the court rejected the State’s
contention that, by disclosing confidential information in
the course of seeking a new trial, Kaur had effectively
waived her attorney-client privilege for all purposes. But
the court also rejected Kaur’s contention that the prosecu-
tors’ knowledge of her defense strategy was presumptively
prejudicial. Instead, the court concluded that Kaur had to
demonstrate a realistic possibility that she was harmed in
the second trial by the prosecutors’ access to her privileged
information or that the prosecutors used such information
to their advantage. After comparing the records of Kaur’s
two trials, the court determined that Kaur had failed to
make the requisite showing.
The Court of Appeals of Maryland, the State’s highest
court, denied further review. Kaur then filed a petition for
a writ of certiorari in this Court.
“[I]t has long been recognized that the essence of the
Sixth Amendment right is privacy of communication with
counsel.” Weatherford v. Bursey, 429 U. S. 545, 563 (1977)
(Marshall, J., dissenting) (internal quotation marks and el-
lipsis omitted). In Weatherford, this Court considered
whether a defendant’s Sixth Amendment right had been vi-
olated when, at the defendant’s invitation, an undercover
agent attended a meeting between the defendant and his
lawyer. Id., at 550–551, 558. Based in part on the fact that
there had been “no communication of defense strategy to

3 Cite as: 592 U. S. ____ (2020)
Statement of S
OTOMAYOR, J.
the prosecution,” the Court rejected the defendant’s claim.
Id., at 558. But the Court noted that the defendant “would
have [had] a much stronger case” “had the prosecution
learned . . . the details of the [lawyer-client] conversations
about trial preparations.” Id., at 554.
Since Weatherford, many federal and state courts have
struggled to define what burden, if any, a defendant must
meet to demonstrate prejudice from a prosecutor’s wrongful
or negligent acquisition of privileged information. Unlike
the defendants in those cases, however, Kaur disclosed (al-
beit at the trial court’s direction) privileged information to
the prosecutors for the limited purpose of vindicating her
right to effective assistance of counsel. The prosecutors did
not obtain Kaur’s information surreptitiously. Few courts
have had occasion to opine on whether the Sixth Amend-
ment bars prosecutors from retrying a defendant in such
circumstances. Cf. Bittaker v. Woodford, 331 F. 3d 715, 722
(CA9 2003) (holding that a waiver of attorney-client privi-
lege for purposes of raising an ineffective-assistance-of-
counsel claim does not extend to retrial, in part because
“[e]xtending the waiver . . . would immediately and per-
versely skew the second trial in the prosecution’s favor”).
Because this question could benefit from further considera-
tion by the lower courts, I agree with the decision to deny
certiorari in this case.
But three important points bear mention. First, it is
deeply disconcerting that the State has suggested that de-
fendants who raise ineffective-assistance-of-counsel claims
during the trial phase must forfeit their right to privileged
communications with counsel. To vindicate the past denial
of her Sixth Amendment right to effective assistance of
counsel, a defendant should not have to waive her Sixth
Amendment right to attorney-client confidentiality for pur-
poses of any retrial to which she is entitled. See Simmons
v. United States, 390 U. S. 377, 394 (1968) (“[W]e find it in-
tolerable that one constitutional right should have to be

4 KAUR v. MARYLAND
Statement of S
OTOMAYOR, J.
surrendered in order to assert another”).
Second, this case demonstrates the many insidious ways
that potential Sixth Amendment violations can affect the
course of a trial. Take, for example, Kaur’s ability to testify
in her own defense. After the trial court denied her motion
to be tried by new prosecutors, Kaur filed a motion “to limit
the scope of the State’s cross-examination in the event that
[she] chose to testify.” 2019 WL 2407997, *19. Kaur’s con-
cern that the State might use her privileged information for
its own advantage was hardly hypothetical: One of the pros-
ecutors had, in fact, already informed the court that she had
taken the opportunity to “‘scour’ ” Kaur’s defense file and
that she had “‘made a list of all the negatives that [would]
befall the defendant’” should she choose to testify. Id., at
*18 (some alterations omitted). After a “three-way discus-
sion between counsel and the trial court,” it was agreed that
the prosecutor would “rely solely upon her recollection of
Ms. Kaur’s prior testimony” from the hearing on her motion
for a new trial, but that one of the prosecutor’s assistants
could review the transcript “for exact wording.” Id., at *19.
The court then “reserved any ruling on the scope of possible
cross-examination until Ms. Kaur completed her direct tes-
timony.” Ibid. Perhaps unsurprisingly, Kaur declined to
testify.
This is just one example of the many ways in which the
prosecutors’ possession of Kaur’s privileged information
could have subtly but indelibly affected the course of her
trial. One can think of many others. The prosecutors, ei-
ther intentionally or subconsciously, may have selected a
different mix of jurors. They may have changed their pre-
trial preparation, perhaps by emphasizing different parts of
the State’s case or focusing on different weaknesses in the
defense. Or they may have considered different lines of
questioning, brainstormed different objections, or antici-
pated different arguments. The trouble with all of these
scenarios is that, while the Court of Special Appeals no

5 Cite as: 592 U. S. ____ (2020)
Statement of S
OTOMAYOR, J.
doubt dutifully reviewed the record, it is exceedingly diffi-
cult to prove a negative. 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 rec-
ords of two trials.
Finally and crucially, the decision whether to allow the
original prosecution team to retry Kaur was not the court’s
alone to make. The prosecutors, too, had a choice. And in
making that choice, as with all prosecutorial decisions,
those lawyers acted as “the representative[s] not of an ordi-
nary party to a controversy, but of a sovereignty . . . whose
interest . . . in a criminal prosecution is not that it shall win
a case, but that justice shall be done.” Berger v. United
States, 295 U. S. 78, 88 (1935). Prosecutors wield an im-
mense amount of power, and they do so in the name of the
State itself. That unique privilege comes with the excep-
tional responsibility to ensure that the criminal justice sys-
tem indeed serves the ends of justice. Prosecutors fall short
of this task, and therefore do a grave disservice to the peo-
ple in whose name they litigate, when they permit them-
selves to enjoy unfair trial advantages at defendants’ ex-
pense. Here, regardless of the reason for their acquisition
of Kaur’s privileged information, and regardless of what-
ever minimum conduct was required of them by the Sixth
Amendment, the prosecutors should have recused them-
selves from participating in Kaur’s second trial as a matter
of professional conscience. Their failure to do so casts a
troubling and unnecessary shadow over Kaur’s conviction
and sentence to life imprisonment.