State Court’s Unreasonable Factual Conclusions About Use of Attorney/Client Privileged Material Required Remand

Kaur v. Warden: In October 2013 a woman was shot and killed outside her home in Maryland. Arrested shortly thereafter in Tennessee (where they lived) were her ex-husband, Taneja, and his new wife, Kaur, who were both charged with first degree murder. At a joint trial, both were convicted, on the state’s theory that one or the other had done the actual shooting.

Kaur filed a motion for new trial, along with an affidavit from her trial attorney, arguing that she had received ineffective assistance of counsel, particularly because she had been incorrectly informed that she could not testify on her own behalf due to marital privilege. Proceedings resulting in a new trial ensued, during which Kaur was required to disclose “all investigative and trial files belonging to Kaur’s defense counsel,” which disclosed the possibility of a piece of evidence (a second wig potentially used during the shooting) about which the state did not know. She also testified at length about what her trial testimony would have been. The district court granted Kaur’s new trial motion.

However, the trial court allowed the same prosecutors who appeared at the first and second trials to conduct the evidentiary hearing, meaning that they had considerable knowledge of attorney/client protected facts produced during that proceeding. The trial court entered a weak protective order that largely left the issue of just want information the state might be able to use at the second trial up in the air. At the second trial, the state shifted its theory to Taneja being the shooter and Kaur acting as an accomplice, relying heavily on the second wig. Kaur decided not to testify at the second trial out of concerns that she could be cross-examined based on privileged material that had come out during the hearing. Kaur was again convicted.

The Maryland appellate court affirmed Kaur’s conviction, assuming (but not deciding) that her Sixth Amendment rights had been violated, but concluding she had not been prejudiced. Kaur sought §2254 relief in the district court, which denied her motion, but did issue a certificate of appealability on the issue of whether Kaur’s Sixth Amendment right to counsel was violated.

On appeal, the Fourth Circuit vacated the district court’s order and remanded for further proceedings. Looking to the state appellate court decision, the court concluded that the state court was based on “an objectively unreasonable determination of the facts in light of the evidence presented in the state court proceedings.” Specifically, the court found error with two conclusions: First, that the disclosure of the second wig evidence actually helped Kaur’s case, rather than strengthened the state’s case (the state referenced the second wit 13 times in closing). Second, that Kaur had not adequately set forth what she would have testified about at the second trial so it was impossible to determine how it might have impacted the trial. However, because the state court had assumed, rather than deciding, whether a Sixth Amendment violation had occurred, the court remanded for an initial determination on the merits of that claim.