Fourth Circuit analyzes prosectors' awareness of attorney-client communications at murder retrial

RICHMOND, Va. (CN) — A Fourth Circuit panel heard arguments Wednesday that prosecutors wrongly considered attorney-client communications before retrying a woman accused of murdering her husband’s ex-wife.

Raminder Kaur claims the prosecutors unfairly accessed the attorney-client communication she used to convince the court of her attorney’s ineffective assistance.

“By making her claim of ineffective assistance of counsel, Ms. Kaur did not consent to the state doing whatever it wished with her attorneys’ casefile — her waiver extended no further than the proceedings on her motion for a new trial,” Kaur said in her brief.

A Maryland-based federal judge denied Kaur’s habeas corpus petition, ruling that the state court overseeing her appeal correctly found Kaur failed to show that prosecutors’ access to her files led to prejudice. In denying Kaur’s petition, the lower court ruled that the state’s theory against Kaur did not change from the first trial to the second.

Kaur disagrees.

“The state’s theory changed dramatically,” her attorney, Kevin Collins of Covington and Burling, said Wednesday.

A little before 8 a.m. in Germantown, Maryland, on Oct. 12, 2013, Preeta Gabba was fatally shot three times. The state indicted Gabba’s former husband, Baldeo Taneja, and his wife, Kaur, with whom he’d had an affair, theorizing that the pair conspired to kill Gabba and that Kaur fired the shots.

The jury found the pair guilty of first-degree murder; conspiracy to commit first-degree murder; and use of a handgun in a crime of violence.

Kaur won a new trial after she detailed significant errors that were the fault of her defense attorney. An affidavit demonstrated where she effectively laid out her side of the story and how her attorney failed to convey it to the jurors.

The trial court then denied Kaur’s motion to prevent the prosecution team from viewing the privileged information disclosed during her motion for a new trial proceeding. The court ruled that Kaur had waived her attorney-client privileges when she published her affidavit in a public forum, which was quickly picked up by the Washington Post. Kaur again was found guilty on all counts and sentenced to life in prison.

“The state used the information in that file to inform its prosecution strategy, substantially prejudicing Ms. Kaur’s defense and leaving her attorney-client privilege ‘in tatters,’" Kaur said in her brief.

After blaming Kaur for firing the fatal shots in the first trial, Collins argues the state changed its theory to Kaur being an accomplice, while it was Taneja who donned a wig and killed Gabba. The prosecution’s theory changed, according to Kaur, after discovering through her attorney communication the affidavit where Kaur claimed it was Taneja who dressed as a woman and killed Gabba.

“They took into account what her likely testimony would have been, which is that her husband did the shooting, and that’s why they shaped their trial testimony different from trial one,” Collins said.

The lower court ruled that even assuming the prosecution’s viewing of the affidavit violated the Sixth Amendment, it was beneficial to Kaur because it strengthened her argument that Taneja was the killer.

Collins further argued that Kaur was intimidated into not testifying at the retrial because she feared the government’s access to her files gave prosecutors an unfair advantage on cross-examination.

Jer Welter of the Maryland attorney general’s office claimed that Kaur’s fear was unreasonable because the lower court entered a protective order stating that the prosecution could not use any of Kaur’s attorney-client communication against her in the retrial. Instead, Welter argued, the court only reserved findings during the motion for a new trial outside of attorney-client privileges.

Kaur claims she couldn’t trust the prosecution not to bring up the once-privileged communications.

“The state contends that Ms. Kaur should have known that the prosecutor’s comments—that she had already taken the opportunity to ‘scour’ the defense file, and ‘made a list of all the negatives that [would] befall the defendant’ should she chose to testify — were limited to the motion for new trial, and not meant to describe knowledge that would be relevant to Ms. Kaur’s retrial,” Kaur said. “In other words, Ms. Kaur should have given prosecutors the benefit of the doubt that they didn’t actually mean what they said.”

Kaur further argued that her characteristics as an Indian immigrant with little background in American court proceedings made her unlikely to understand.

U.S. Circuit Court Judge Toby Heytens, a Joe Biden appointee, understood Kaur’s point.

“What in the world does it mean to tell someone they can’t use what they know?” Heytens asked Welter. “I don’t even understand how that works.”

Welter responded that prosecutors often have to disregard a defendant’s testimony if it is found to have been made in violation of the Miranda warning.

The state relied on three eyewitnesses who described the shooter as a woman, and the discovery of a wig, black hair dye, a black hoodie, a plastic bag containing a .357 Ruger LCR revolver, later determined to be the murder weapon and a 100 Ruger revolver in the pair’s car.

The state illustrated to the jury a husband in Taneja who was engaged in a hostile divorce with Gabba. At the time of the murder, Taneje and Gabba were embroiled in a dispute over alimony. Taneja purchased the two weapons and attended a firearms training class in the lead-up to the murder.

U.S. Circuit Court Judge Nicole Berner, another Biden appointee, and Eastern District of Virginia U.S. District Judge Elizabeth Hanes completed the panel. Collins did not respond to a request for comment, and it is the Maryland attorney general’s office’s policy not to comment on ongoing litigation.

“It would have an enormous detrimental impact on the defendant’s Sixth Amendment right to counsel, her Fifth Amendment right against self-incrimination and would also impair a defendant’s right to seek postconviction relief," the Maryland Criminal Defense Attorneys’ Association said in an amicus brief. “Permitting this would be akin to requiring a defendant to categorically relinquish her attorney-client privilege for all purposes.”