In re Elrich S.

• Decision Date: 24 September 2010
• Docket Number: No. 101, Sept. Term, 2009.,101, Sept. Term, 2009.
• Citation: 416 Md. 15,5 A.3d 27
• Parties: In re ELRICH S.
• Court: Maryland Court of Appeals

5 A.3d 27

416 Md. 15

In re ELRICH S.

No. 101, Sept. Term, 2009.

Court of Appeals of Maryland.

Sept. 24, 2010.

Marc A. DeSimone, Jr., Asst. Public Defender (Elizabeth L. Julian, Acting Public Defender, of Baltimore, MD), on brief, for petitioner/cross-respondent.

Robert Taylor, Jr., Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, of Baltimore, MD), on brief, for respondent/cross-petitioner.

Argued before BELL, C.J., HARRELL, GREENE, MURPHY, ADKINS, BARBERA, and JOHN C. ELDRIDGE (Retired, Specially Assigned) JJ.

ADKINS, J.

During a hearing to vacate Petitioner's earlier delinquency adjudication, the judge charged the Office of the Public Defender ("OPD") with "essentially post convicting [its] own lawyers" and ordered it to panel the case to an attorney wholly independent of that office. Petitioner was claiming ineffective assistance of counsel, and the judge was concerned that the self-damning affidavit submitted by Petitioner's previous OPD trial counsel was the product of coercion. While exercising her official duties in unrelated matters, the judge hadlearned of an internal OPD assessment program in which Baltimore County OPD juvenile lawyers were evaluated with the potential for adverse employment consequences. One of Petitioner's post-delinquency counsel was an investigator for the program and Petitioner's trial counsel may have been among those under evaluation. For these reasons, the judge struck the affidavit of trial counsel because there was an insufficient "Chinese Wall" separating Petitioner's trial counsel from his post-delinquency attorney. The issues in this appeal arise from that decision, as well as the judge's later refusal to recuse herself, and her denial of Petitioner's Motion to Vacate his delinquency adjudication. We shall affirm in part, and reverse in part.

FACTS AND LEGAL PROCEEDINGS

Following investigations into two intentionally set fires at a Baltimore County apartment building, the State of Maryland filed a delinquency petition against Petitioner Elrich S. alleging that he had engaged in two acts of first-degree arson. An apartment tenant had identified Elrich as one of two males seen standing over burning papers that generated the second fire. Elrich was arrested, advised of his rights under Miranda, and then interviewed. During the interrogation, Elrich provided detectives with a statement in which he admittedto being present at the scene of both fires, and to lighting the second one himself ("Elrich's statement"). Elrich also repeatedly claimed that he was seventeen years old, but a review of his criminal records revealed that he was only fourteen, a fact that was later confirmed by his guardian.

At the juvenile proceedings, Elrich was represented by an Assistant Public Defender assigned to the Baltimore County district office of OPD (hereinafter referred to as "delinquency counsel" or "previous counsel"). On the day of the hearing, Elrich's delinquency counsel received a copy of the court ordered psychological evaluation of Elrich ("the Report"), which indicated that Elrich's cognitive abilities may be "significantly below" normal. Elrich's delinquency counsel understood that the Report "had particularly significant relevance to the voluntariness of Elrich's statement to police, which [would] affect[ ] the statement's admissibility at trial." The Report was submitted to the court, but, for reasons unknown, delinquency counsel did not use it at the hearing to attack the validity of Elrich's statement. For example, she did not argue to the court that the statement was tainted by Elrich's diminished capacity. Furthermore, she did not seek to suppress Elrich's statement, even though she believed that it was "the only substantive piece of evidence connecting [Elrich] to the arson."

Elrich plead not delinquent to all charges. The parties agreed to a stipulated statement of facts in front of the Juvenile Master, and the following was articulated to the court:

[O]n July 25, 2007, Detective Hughes responded to [the apartment building] at 1:15 a.m. ... [He] responded there as a result of a fire in the building. Upon arrival there, Detective Hughes met with a Fire Investigator Slagle, and Investigator Slagle conducted an origin and cause investigation of the fire scene. He determined the fire was intentionally set. Unknown persons at that time had pried open the mailbox in the lobby of the building. Once the box was opened, the individual applied open flame to the available combustible materials which appeared to include variouspapers and mails from inside the mailboxes. The fire caused scorching to the paint on the wall and to the mailbox where the papers were found. On July 25th, 2007 atapproximately 9:40 a.m., ... Detective Hughes was requested to respond to a second fire call at the same apartment building. At that time, Investigator Leidner responded to the scene and conducted a second origin and cause investigation. The inspector determined the second fire to be an intentional act as well. This fire involved newspaper advertisements left on the floor of the lobby of that building. The fire was reported by a tenant in the building, Mr. Edward Boutchyard. He reported seeing two male subjects bent down on the floor in the area of below the mailbox. He investigated and found that the papers were on fire. The witness took the papers outside and stamped out the fire with his foot prior to reporting it. As a result of the call to 911, Officer Nesbitt arrived on the scene and located the two subjects observed by the witness. Officer Nesbitt placed these subjects under arrest and transported them to Precinct 11.... Detective Hughes met with [Elrich], and advised him of his rights per Miranda.... [Elrich] ... agreed to give a statement to Detective Hughes. During the written oral statement, Elrich admitted to being present at the scene of both fires. When describing the fire, the second fire that was at approximately 9:30 in that morning, he at first denied any involvement even though he admitted he was in the building. After a short conversation, however, Elrich admitted that he had lit the fire because he was bored.... Elrich [also] talked about being present at the fire, the first fire.

The court accepted the facts and found Elrich delinquent.¹ It placed Elrich into supervised detention.

Four months after his delinquency hearing, Elrich filed a motion to vacate his delinquency finding on the grounds thathis counsel was ineffective. ² At this juncture, Elrich was represented by the Chief Attorney (hereinafter referred to as "motions counsel" or "current counsel") of OPD's Juvenile Protection Division ("JPD").³ Elrich alleged that previous counsel failed to adequately inform him of the nature of the charges, the consequences of a delinquency finding, the strength of the State's case, his right to a fair and impartial trial in which the State must prove the substance of its petition beyond a reasonable doubt, his ability to contest the Master's order, his right to suppress certain information, and his right not to testify at trial. Attached to the motion was a signed affidavit by Elrich's delinquency counsel ("the Affidavit"), who averred to, among other failures in her representation, "fail[ing] to zealously advise[Elrich] of the likelihood of success if the statement had been suppressed."

The parties appeared on the motion before the Circuit Court for Baltimore County, sitting as a juvenile court. During the hearing, Elrich was represented by both his motions counsel and Marc DeSimone, an Assistant Public Defender assigned to OPD's Appellate Division.⁴ Elrich's delinquencycounsel was also present at the hearing, not in a representative capacity, but instead as a witness subpoenaed by the State. Before the parties reached the merits, however, the judge expressed skepticism about the circumstances surrounding the OPD's acquisition of the Affidavit, and the following colloquy occurred:

THE COURT: I, quite frankly, am troubled by the fact that someone who is in essence a supervisor has filed a-obtained an affidavit from somebody under their supervision of the nature of the affidavit that was filed in this case. I think that there is an ethical and conflict issue that I am raising because it is of concern to me.

* * *

[Motions Counsel]: I can clear up the Court's misinformation about the fact that I am not [delinquency counsel's] supervisor.

THE COURT: I'm aware of that but it was also my understanding from discussions within your office that there was a court watch of sorts where you and others came around and evaluated performance of lawyers in Baltimore County and that as a result of that, certain things happened within the Baltimore County office.

[Motions Counsel]: That your Honor has that knowledge means that someone from my office has had ex parte communications with the Court.

THE COURT: No. I have that knowledge actually by talking to the public defender on other issues unrelated to this case who talked about the supervision project that was done, so I didn't have ex parte communications about this case. I, quite frankly, am troubled that you would say that I did.

But I did have communication with your office where it was described to me that there was a supervision project, acourt watch of sorts. As a result of that, various things happened. One of the things in that discussion were concerns about certain cases that people watched and evaluated. From the description that was provided to me in that context, this would appear to be one of those cases. So to then have an affidavit from the lawyer who was assigned done, presumably at the request of someone in your-in the office, and filed, is troublesome to me.

* * *

[Motions Counsel]: [W]e did not write that affidavit. We did not. In fact, I believe if the Court heard from [delinquency counsel], the Court would understand that we did write an affidavit. [Elrich's delinquency counsel] took exception with the affidavit that we wrote and

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