Cite as: 592 U. S. ____ (2020) 1 

Statement of SOTOMAYOR, 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 JUSTICE 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 petition: The prosecutors who tried this case had extensive

knowledge of defense counsel’s confidential communications with the defendant, petitioner Raminder Kaur. For 

the reasons stated below, I fear that, in this case, the criminal 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 lawyers and their support staff, and her lawyers’ investigative 

and strategic work-product,” Kaur asked the court for a protective 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 SOTOMAYOR, 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 second time. Id., at *17. Kaur was again convicted, and she

was sentenced to life imprisonment. 

Kaur appealed to the Court of Special Appeals of Maryland, 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 prosecutors’ 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 ellipsis omitted). In Weatherford, this Court considered 

whether a defendant’s Sixth Amendment right had been violated 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 
 

 

Cite as: 592 U. S. ____ (2020) 3 

Statement of SOTOMAYOR, 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 (albeit 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 Amendment 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 privilege for purposes of raising an ineffective-assistance-ofcounsel claim does not extend to retrial, in part because 

“[e]xtending the waiver . . . would immediately and perversely skew the second trial in the prosecution’s favor”).

Because this question could benefit from further consideration 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 defendants 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 purposes of any retrial to which she is entitled. See Simmons 

v. United States, 390 U. S. 377, 394 (1968) (“[W]e find it intolerable that one constitutional right should have to be 
 

 

4 KAUR v. MARYLAND 

Statement of SOTOMAYOR, 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 concern that the State might use her privileged information for

its own advantage was hardly hypothetical: One of the prosecutors 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 discussion 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 testimony.” 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, either intentionally or subconsciously, may have selected a 

different mix of jurors. 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. Or they may have considered different lines of 

questioning, brainstormed different objections, or anticipated different arguments. The trouble with all of these 

scenarios is that, while the Court of Special Appeals no 
Cite as: 592 U. S. ____ (2020) 5 

Statement of SOTOMAYOR, J. 

doubt dutifully reviewed the record, it is exceedingly difficult 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 records 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 ordinary 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 immense amount of power, and they do so in the name of the

State itself. That unique privilege comes with the exceptional responsibility to ensure that the criminal justice system indeed serves the ends of justice. 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, and regardless of whatever minimum conduct was required of them by the Sixth

Amendment, the prosecutors should have recused themselves 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.