EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, May 3, 2017

Does the Law of the Case Doctrine Make or Break the State's Case? (Part 2)

In yesterday's post, I began my discussion of the law of the case doctrine and how it relates to Adnan's case. In its Reply Brief and Appendix of Cross-Appellee, the State cited language from the opinion of the Court of Appeals of Maryland in Fidelity-Baltimore Nat. Bank & Trust Co. v. John Hancock Mut. Life Ins. Co., 142 A.2d 796 (Md. 1958) regarding the doctrine: 

Once this Court has ruled upon a question properly presented on an appeal, or, if the ruling be contrary to a question that could have been raised and argued in that appeal on the then state of the record, as aforesaid, such a ruling becomes the ‘law of the case’ and is binding on the litigants and courts alike, unless changed or modified after reargument, and neither the questions decided nor the ones that could have been raised and decided are available to be raised in a subsequent appeal. (emphasis added by Reply Brief).

In yesterday's post, I focused on the non-italicized portion of this language for the easy conclusion that Judge Welch was not barred by the law of the case doctrine from reversing his prior order on the Asia/alibi issue. In today's post, I will focus on the italicized portion of this language to address the more difficult question of whether Judge Welch was barred by the law of the case doctrine from considering the cell tower issue.

Let's start with the basics. Maryland Rule of Criminal Procedure 7-106(a) and (b) provide that 

(a)   For the purposes of this title, an allegation of error is finally litigated when:
 
(1)   an appellate court of the State decides on the merits of the allegation:
 
(i)   on direct appeal; or
 
(ii)   on any consideration of an application for leave to appeal filed under § 7-109 of this subtitle; or
 
(2)   a court of original jurisdiction, after a full and fair hearing, decides on the merits of the allegation in a petition for a writ of habeas corpus or a writ of error coram nobis, unless the decision on the merits of the petition is clearly erroneous.
 
(b)    
 
(1)    
 
(i)   Except as provided in subparagraph (ii) of this paragraph, an allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation:
 
1.   before trial;
 
2.   at trial;
 
3.   on direct appeal, whether or not the petitioner took an appeal;
 
4.   in an application for leave to appeal a conviction based on a guilty plea;
 
5.   in a habeas corpus or coram nobis proceeding began by the petitioner;
 
6.   in a prior petition under this subtitle; or
 
7.   in any other proceeding that the petitioner began.
 
(ii)    
 
1.   Failure to make an allegation of error shall be excused if special circumstances exist.
 
2.   The petitioner has the burden of proving that special circumstances exist.
 
(2)   When a petitioner could have made an allegation of error at a proceeding set forth in paragraph (1)(i) of this subsection but did not make an allegation of error, there is a rebuttable presumption that the petitioner intelligently and knowingly failed to make the allegation.

Rule 7-106 contains the waiver provision in Maryland's Uniform Postconviction Procedure Act. See Arrington v. State, 983 A.2d 1071, 1085 (Md. 2009) ("The UPPA also, in CP Section 7-106, established limits on what could be raised in a postconviction proceeding by introducing the doctrine of 'waiver.'").

The State of Maryland has noted on multiple occasions that Rule 7-106 and the law of the case doctrine cover the same ground. See, e.g., Brief of AppellantState v. Winston, 2016 WL 6473179 (Md.App. 2016) ("In that application, the State argued that leave to appeal was warranted because Winston's breach claim: (1) had been waived under Crim. Proc. § 7-106(b) and general principles of waiver (E. 165); (2) was procedurally barred under Crim. Proc. § 7-106(a) as having been finally litigated in Winston I (E. 166); (3) was, for the same reason, barred by principles of res judicata and law of the case."); Motion to Dismiss and Brief and Appendix of Appellee, Kinard v. State, 2010 WL 2356263 (Md.App. 2010) ("This Court rejected Kinard's claim of insufficient evidence in his direct appeal and that holding is now the law of the case. (Apx. 1-6). See Scott, 379 Md. at 183-84 *14 (decisions rendered by a prior appellate panel will generally govern the subsequent appeal at the same appellate level). Kinard's allegation regarding the improper use of his co-defendant's statement is waived because he did not raise it on direct appeal. Md. Code Ann., Crim. Pro., § 7-106 (b)(2) (2009).") (emphases added).

This helps to explain why Judge Welch was not barred from reversing his prior order on the Asia/alibi claim under Rule 7-106 and/or the law of the case doctrine. Because the Court of Special Appeals granted Adnan leave to appeal this issue but then remanded the case back down to Judge Welch, that issue was never finally litigated. Conversely, if the Court of Special Appeals had denied Adnan leave to appeal, Judge Welch's prior order would have become final under Maryland Rule of Criminal Procedure 7-109(b)(4)See Rule 7-109(b)(4) ("If the application for leave to appeal is denied, the order sought to be reviewed becomes final."). Therefore, the issue would have been "finally litigated" under Maryland Rule of Criminal Procedure 7-106(a)(1)(ii), and Judge Welch would have been precluded from reversing his prior order  under the law of the case doctrine. See Brief and Appendix of AppelleeSmith v. State, 2006 WL 6628777 (Md.App. 2006) ("In the June 23, 1992, memorandum and order by the Honorable David Ross, a copy of which is attached, Judge Ross ruled that this issue was litigated in Smith's first post conviction petition, and that, considering that this Court denied Smith's application for leave to appeal, this issue has been finally litigated. (Apx. 8). See Scott v. State, 379 Md. 170, 183-84 (2004) (generally, the "law of the case doctrine is one of appellate procedure"); accord Haskins v. State, ___ Md. App. ___, No. 1802, Sept. Term, 2005 (filed October 2, 2006) (slip op. at 8); see also Md. Code Ann., Crim. Pro., § 7-106(a).").

This takes us to the cell tower claim in the Adnan Syed case. Essentially, the issue boils down to this: Does the law of the case doctrine apply the same for questions that could have been raised on appeal and questions that were raised on appeal? In other words, do the questions/claims in a first PCR petition have to be "finally litigated" before the law of the case doctrine precludes a defendant from bringing a question/claim that could have been, but was not, brought in the first PCR petition? Or, alternatively, in this scenario, does the law of the case doctrine attach (1) when the defendant files his first PCR petition; (2) after the PCR proceeding in circuit court; or (3) after the PCR judge issues his order?

Rule 7-106(b)(1)(i)(6) and Rule 7-106(b)(2) are unclear on this point. Rule 7-106(b)(1)(i)(6) might be read to say that the law of the case doctrine applies the moment a first PCR petition is filed. But, as I noted in this post, that's clearly not true.  Instead, in Poole v. State, 203 Md.App. 1 (Md.App. 2012), the Court of Special Appeals of Maryland found that a defendant is "freely allowed" to amend a timely PCR petition with claims that could have been raised in that original petition, even if the amendment comes after the ten year statute of limitations has expired. 

On the other hand, a defendant could cite to Rule 7-106(b)(1)(i)(6) to claim that the law of the case doctrine never precludes a defendant from bringing new claims as part of a motion to reopen under Maryland Rule of Criminal Procedure 7-104. This makes a certain amount of sense because a successful motion under Rule 7-104 reopens a defendant's initial PCR petition/proceeding, which could mean that there is no "prior petition" under Rule 7-106(b)(1)(i)(6).

As the State in Adnan's case notes in its Reply Brief, however, the Court of Appeals of Maryland rejected this argument in Arrington v. State, 983 A.2d 1071 (Md. 2009). Here's the court's discussion of the issue:

At the time of his Motion to Reopen Postconviction Proceeding and for New Trial, Arrington had already filed a petition for postconviction relief based on ineffective assistance of counsel, a claim that was resolved against him in the first postconviction proceeding.

Arrington argues that this was not a "prior petition" under Subtitle 7:

The [postconviction court] erred because it misunderstood the difference between a second successive petition and a proceeding that is reopened. Once a postconviction petition is reopened, its status is that of the initial postconviction. In other words, it is as if the postconviction proceeding was never closed. Consequently, Arrington was entitled to raise any issue that could have been raised in the initial postconviction proceeding.

If one were to focus only on the word "reopen," this argument would have some initial appeal because the word suggests a return to the original proceeding, during which the petitioner was free to present his contentions without the restraint of Section 7-106(b)(1)(ii)(6). But, even with this limited focus, equally appealing is the argument that a return to the original postconviction proceeding simply means that the petitioner has the right to assert the arguments he made there, plus present the new DNA evidence. When we consider the issue in the context of the overall statutory scheme regarding postconviction proceedings as set forth in the UPPA, the scales tip against Arrington's position.

Of course, the State uses Arrington to claim that Rule 7-106 and the law of the case doctrine apply to Adnan's motion to reopen, meaning that he can't bring his cell tower claim. But there's an important distinction between Adnan's case and Arrington. Possibly two.

The first is that Arrington's original PCR petition was "finally litigated." Then, he brought his motion to reopen based on DNA testing.  Therefore, it could be said that the conclusion in Arrington is unremarkable because it is clear that, under any interpretation of the law of the case doctrine, Rule 7-106 applies to claims that could have been brought in a prior PCR petition that was "finally litigated." 

By way of contrast, what makes Adnan's case so unique is that his first PCR petition was not "finally litigated." Instead, the Court of Special Appeals remanded the petition back to the circuit court before reaching the merits of that petition. So, this takes us back to the foundational question: Do the questions/claims in a first PCR petition have to be "finally litigated" before the law of the case doctrine precludes a defendant from bringing a question/claim that could have been, but were not., brought in the first PCR petition?

The answer seems to be yes. The key case here appears to be Schisler v. State, 938 A.2d 57 (Md.App. 2007), where the Court of Special Appeals of Maryland held that 

the rule of John Hancock is that under the law of the case doctrine, litigants cannot raise new defenses once an appellate court has finally decided a case if these new defenses could have been raised based on the facts as they existed prior to the first appeal....

And there it is. The Court of Special Appeals of Maryland has held that the law of the case doctrine only prevents a defendant from raising new defenses/claim "once an appellate court has finally decided a case...." Therefore, because the Court of Special Appeals did not finally decide Adnan's PCR petition before remanding the case back to the circuit court, the law of the case doctrine/Rule 7-106 does not preclude Adnan from bringing the new cell tower claim. 

Of course, the court in Schisler cited to John Hancock, and the quote from that opinion that led this post seems to support this proposition as well. Take another look at the beginning of that quote: "Once this Court has ruled upon a question properly presented on an appeal, or, if the ruling be contrary to a question that could have been raised and argued in that appeal on the then state of the record..." (emphasis added). The beginning of this quote makes clear that the triggering mechanism for either part of the law of the case doctrine -- the same issue part and the new issue part -- is a ruling by the appellate court. But, in Adnan's case, the Court of Special Appeals never made such a ruling; instead, it remanded back to the circuit court without making a ruling.

The second possible distinction between Adnan's case and Arrington can be found in Section 7-102(b)(2) of the Maryland Code of Criminal Procedure, which states that

(b)   A person may begin a proceeding under this title if:

(2) the alleged error has not been previously and finally litigated or waived in the proceeding resulting in the conviction or in any other proceeding that the person has taken to secure relief from the person’s conviction.

This takes us back to Poole, which held that the UPPA only applies to petitions that "begin a proceeding" and does "not apply to amendments." In Trimble v. State, 849 A.2d 83 (Md. 2004), which I discussed yesterday, the Court of Appeals of Maryland found that the law of the case doctrine precluded a defendant's new request for appointment of counsel to assist him in obtaining DNA testing, in part because "no matter was pending before the trial court when Trimble filed his motion for the appointment of counsel." The same applied in Arrington. Arrington's first PCR petition was "finally litigated" and dead at the time that he brought his new claim. Therefore, in each case, the defendant was seeking to "begin a proceeding."

But this arguably wasn't the case for Adnan. When Adnan filed his motion to reopen, there was a matter pending before the circuit court. The Court of Special Appeals had not "finally litigated" his first PCR petition and instead remanded the case so that Adnan could file his motion to reopen. Therefore, it's tough to see how Adnan's motion to reopen was "begin[ning] a proceeding." 

It's even tougher to see how Adnan's motion to reopen was "begin[ning] a proceeding" when both the State and the defense agree that Judge Welch's discretion was restricted (to differing degrees) by the Court of Special Appeals's remand order. How was the motion to reopen the beginning of a new proceeding as opposed to the continuation of an existing proceeding if Judge Welch's discretion was limited by the remand order?

It's even tougher to see how Adnan's motion to reopen was "begin[ning] a proceeding" when we consider how Judge Welch handled Adnan's motion for bail. Judge Welch denied that motion, concluding that he had to view it "in light of the instructions and directives set forth in the Remand," which, inter alia, ordered that "after taking any action it deems appropriate the circuit court shall forthwith re-transmit the record to this Court for further proceedings." Given this language, how can we construe Adnan's motion to reopen as a motion "begin[ning] a proceeding" as opposed to a motion that continued a current proceeding.

That said, Maryland Rule of Criminal Procedure 7-104 does state that

The court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.

Does this mean that a motion to reopen always "begin[s] a proceeding" "that was previously concluded"? And can Arrington really be distinguished from Adnan's case, or should they be treated the same because they both involve motions to reopen?

It's tough to say because there's not really a Maryland case directly on point, and this aspect of the law of the case doctrine is a unique creature of Maryland law, so federal precedent can't help us resolve the issue. See Holloway v. State, 2017 WL 1174883 (Md.App. 2017) ("At the same time, we recognize that there is a noticeable difference in the application of the law of the case doctrine in federal court and in Maryland. In Maryland, the law of the case doctrine applies to both questions that were decided and questions that could have been raised and decided.... Under federal law, "the law-of-the-case doctrine only applies to issues the court actually decided.").

But even this language from Holloway implies that an appellate court needs to reach the merits of an appeal for the law of the case doctrine to preclude new claims. As I noted yesterday, the law of the case doctrine only applies to decisions by an appellate court; it doesn't apply to decisions by a circuit court. Therefore, Holloway and other cases should be read to say that "the law of the case doctrine applies to...questions that could have been raised and decided [by the Court of Special Appeals of Maryland]." In Adnan's case, at the time of his motion to reopen, his cell tower claim could have already been raised, but it couldn't have already been decided by the Court of Special Appeals of Maryland, which determined that it had to remand his case on the Asia/alibi issue before reaching the merits of Adnan's appeal(s). Therefore, I think that neither the law of the case doctrine nor Rule 7-106 should preclude Adnan from brining his cell tower claim. But I will admit that this issue is much less clear than some of the other issues in this case, and it's tough to predict whether the Court of Special Appeals will apply this reasoning.

-CM

http://lawprofessors.typepad.com/evidenceprof/2017/05/in-yesterdays-post.html

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Comments

Is this the final piece of document/paper before a decision will be made if the retrial that has been granted is rightly made? Are you planning on doing a sort of recap, that would be great. Keep up the great work, very informative!

Posted by: Martin | May 4, 2017 5:35:52 AM

Martin: The defense will be filing a reply brief on the Asia/alibi issue.

Posted by: Colin | May 4, 2017 6:06:08 AM

Colin:

This is a fine analysis. I’m not convinced, though, that § 7-106’s waiver provision doesn’t apply. You seem to take the position that a *petition* must be “finally litigated” before any claims that could have been raised in that petition can be deemed waived. The final litigation of a petition is thus a prerequisite to the application of waiver. I don’t see it that way at all. The statute refers to “an allegation of error” being finally litigated, not a “petition.” “Finally litigated” seems distinct from the concept of waiver. § 7-106(a) looks like it establishes a procedural bar – essentially claim [or is it issue?] preclusion. § 7-106(b) establishes a waiver rule. Subsection (a) says if you raised it before, you can’t raise it again (as long as it was “finally litigated,” which seems analogous to the “fully and fairly litigated” prerequisite for the application of preclusion in other contexts). Subsection (b) says if you could have raised it before, you can’t raise it now.

Subsection 7-106(c)(2) reinforces that these are distinct concepts. Why else would it say “an allegation of error may not be considered to have been finally litigated OR waived…”? I think
Subsections (c)(2)(i)-(ii) show how these could operate separately. They say an allegation of error shall not be deemed “finally litigated” (precluded) OR “waived” if the law changes, and the new standard is meant to apply retrospectively. Say Defendant A and B are both convicted by non-unanimous juries under a rule that an 11-1 vote is good enough. Defendant A brings a PCR petition contesting the non-unanimous verdict and loses, because the law at the time is that juries need not be unanimous. Defendant B brings a PCR petition but doesn’t raise that claim. Then the law changes, courts require unanimous verdicts, and they say the new standard is to be applied retrospectively. Defendant A can raise the claim again, even though it would ordinarily be deemed “finally litigated” and therefore barred by preclusion principles. Defendant B can raise the claim for the first time, even though courts would ordinarily find that he waived the claim.

Therefore, whether Syed’s first PCR petition was “finally litigated” has no effect on waiver. The only question is whether there was a “prior petition” in which he could have raised the cell tower claim. And Arrington makes clear that even though Syed’s petition has was reopened, the original set of claims that were resolved by the postconviction court constituted a “prior petition.”

Posted by: Sam | May 6, 2017 8:36:35 AM

Sam: Arrington was a case, though, where COSA had finally litigated Arrington's first PCR petition and the issue(s) contained therein. What do you make of the language from Schisler about a defendant not being able to raise "new defenses once an appellate court has finally decided a case if these new defenses could have been raised based on the facts as they existed prior to the first appeal...."?

Posted by: Colin | May 6, 2017 10:47:14 AM

@Sam --

Doesn't it make a difference that Arrington dealt specifies that they're deciding what a petitioner may not assert in a proceeding reopened under the authority of § 8-201, which itself is specifies the grounds on which the interests of justice would be served by then reopening under § 7-104? Under the latter by itself, they're "virtually limitless."

This seems like a distinction to me.

Posted by: pluscachange | May 6, 2017 11:35:48 AM

@Colin:

I honestly don’t have time to familiarize myself with this more robust, Maryland version of the law of the case doctrine. I’ve only encountered that doctrine in federal litigation. Maybe you’re right that the law of the case doesn’t bar Syed’s claim (or maybe you’re not). My point was only about waiver.

You claim the UPPA’s waiver provision and the law of the case doctrine “cover the same ground,” such that if Syed does not lose under the law of the case doctrine he necessarily does not lose on waiver either. I don’t think that’s right. Can you show me a case that says that? All you cite to is two briefs written by the AG’s office. The quoted segment from Winston is summarizing an argument made by the Montgomery County State’s Attorney’s Office. I wouldn’t be surprised if what they said was just wrong. But even if it’s worth something, it’s not clear what the “for the same reason” language was referring to. Was the claim barred by the law of the case doctrine for the same reason that it was deemed waived (which I think you’re suggesting)? Or was the claim barred by the law of the case doctrine for the same reason that it was procedurally barred under the “finally litigated” preclusion rule of 7-106(a), which I’ve argued is distinct from 7-106’s waiver provision?

I don’t think the Kinard brief supports your position. There are two claims at issue in the paragraph you quote. The first one (insufficiency of evidence) was barred by the law of the case doctrine because it had previously been raised before the appellate court and rejected. The second claim (improper use of the co-defendant’s statement) was waived because it hadn’t been raised on direct appeal. If what you claim is right, then both claims would have been barred by both the law of the case and waiver. That’s not what the brief says. Rather, it suggests they are distinct concepts.

As for Arrington, I take it you think the court wouldn’t have said there had been a “prior petition” if the initial PCR petition hadn’t been “finally litigated.” I just don’t see why that would be. Again, I see no reason to link the “finally litigated” language of 7-106(a) with the waiver/“prior petition” language of 7-106(b). Arrington argued that a re-opened petition should be treated as if it “was never closed,” and the court rejected that, saying Arrington’s new claim was part of a subsequent petition. The court didn’t base its reasoning on Arrington’s initial petition having been “finally litigated.” Syed’s petition was closed (otherwise it couldn’t have been “reopened”) and when he reopened it and tried to assert a new claim, it was a claim he could have presented in a prior petition.

But frankly, I doubt any of this matters. Even Syed isn’t arguing that he escapes waiver because his first petition wasn’t “finally litigated.” On waiver, he just argues that his waiver had to be knowing and intelligent under Curtis, and that the lower court properly found it wasn’t knowing and intelligent. He only makes the “fully litigated” point in the section about the scope of the remand order, in an alternative argument that even Syed’s briefing team seems to acknowledge is not very strong, given how little space they devote to it.

@pluscachange:

I don’t think the fact that Arrington’s petition was reopened under § 8-201 makes a difference. Sure, that statute provides that a reopening would be in the interests of justice in certain cases involving DNA evidence. As such, there was no dispute over whether Arrington’s petition was validly reopened. But there’s no dispute in Syed’s case that his petition was validly reopened. Whether it was in the interests of justice because of DNA evidence or a purported alibi witness’s affidavit, the point is that both petitions were reopened, and both Arrington and Syed argued that because their petitions were reopened, they could be freely amended to add new claims. The court rejected that argument when Arrington made it; it should reject Syed’s attempt to do the same thing. The only difference in Syed’s case is this “not finally litigated” point, which I find unpersuasive for all the reasons stated above.

Posted by: Sam | May 6, 2017 12:15:30 PM

@sam @colin @pluscachange

How do you think COSA will rule on the issues at hand and with what % certainty do you think?

Posted by: Ben | May 6, 2017 3:48:07 PM

@Ben

I know nothing about anything, I'm just a big believer in the benefits of dialectical discourse.

@Sam --

"I don’t think the fact that Arrington’s petition was reopened under § 8-201 makes a difference."

The court's decision in Arrington turned on whether the meaning of the word "reopen" in the context of a proceeding reopened under the authority of § 8-201 meant a return to the initial petition. They concluded that it didn't on (among other things) the grounds that the legislative intent of § 8-201 was not to modify the important waiver provisions of § 7-106 but rather "was focused on expanding the opportunity to use DNA evidence, not other arguments or evidence that had been waived."

How is that not a difference, and a significant one? Syed's PCR was literally reopened in relation to a matter raised in his initial petition, and not under the authority of a statute intended exclusively to allow for the use of DNA evidence.

Posted by: pluscachange | May 6, 2017 6:40:26 PM

Sam: I think the question of whether waiver only applies to “finally litigated” claims/petitions is an open one, and the court could rule either way. I note some of your same concerns toward the end of my post. The other question is the “closed” vs. “begin a proceeding” language. As you say, Adnan’s petition had to be “closed” for him to bring a motion to reopen. On the other hand, how was did that motion to reopen “begin a proceeding” when Judge Welch had to comply with COSA’s remand order in reopening and had to immediately send the case back to COSA after ruling as opposed to being able to grant bail? This is why some of these procedural questions in the case are so tough to answer.

Ben: It’s tough to say at this point. As I’ve said many times, I think the ineffective assistance/plea bargain claim is a non-starter. Less than 5% chance of success. I think Adnan has a strong argument for reversal of the Asia/alibi issue. I’d currently put his chance of success at over 50% on that issue, but I’d like to see the defense’s final brief on the issue. The cell tower claim is the tough one. I still feel like I don’t have quite enough of a grasp on the scope and waiver issues to be able to say. It will be interesting to see how much of the oral arguments are devoted to those issues vs. the merits.

Posted by: Colin | May 7, 2017 3:25:45 AM

@Colin:
Fair enough. I don’t think “finally litigated” has anything to do with waiver, but we’ll see what the court decides.

@pluscachange:
I see your point, but I don’t think it’s a meaningful distinction. If the court had said 8-201 *was* intended to modify the waiver provisions of 7-106, and therefore there *was* a waiver in Arrington’s case, that would mean something. But the court said it was treating Arrington’s case as if the normal waiver rules apply. To me, that says in an ordinary re-opening (not just one pursuant to 8-201), the waiver rules apply, and any newly asserted claim cannot be treated as part of the original petition. Drinks are on me if I end up being wrong about that.

@Ben:
I don’t know about exact percentages, but I think this whole case may turn on the scope/waiver issues regarding the cell tower claim. If the State wins there, the cell tower stuff is out. (The State could also win on the merits of the cell tower claim, but that might be an uphill climb given the deferential standard of review). If the cell tower stuff falls away, I think the State could win on the Asia/alibi issue under Prong #2 (prejudice) of Strickland. With Jay’s testimony corroborated by cell tower evidence, I think the evidence against Syed is pretty strong.

Admittedly, I’ve engaged with the law in this case more so than the facts (as compared to some folks who’ve gone full Perry Mason on this thing). But it seems to me that Jay either (1) wasn’t involved in the crime at all; (2) committed the crime by himself; (3) committed the crime with somebody else and falsely implicated Syed; (4) assisted Syed more or less as he stated at trial; or (5) assisted Syed to a greater degree than he lets on. I’m all in on #5, and a lot of folks think that’s what happened, including lawyers I know who are former public defenders and even some who for innocence clinics. Therefore, I find all this hole-poking in Jay’s story underwhelming. I’m more or less on board with Joseph Sieger’s comments here -- http://www.huffingtonpost.com/2014/12/11/serial-podcast_n_6308408.html -- though I’d be more inclined to actually find proof beyond a reasonable doubt. I looked over the transcript of the PCR hearing with a friend of mine who’s an electrical engineer, and he found Agent Fitzgerald’s testimony far more credible than the defense expert’s and said this cover sheet issue is “way below the engineering level” and has more to do with how AT&T’s subpoena compliance folks disseminated information at the time. In light of that, I’m inclined to believe the guy (Fitzgerald) who actually talked to people who worked at AT&T at the time. Colin may be right that COSA won’t disrupt Judge Welch’s factual findings, but that doesn’t mean I can’t.

Posted by: Sam | May 7, 2017 8:22:46 AM

@Sam: What do you think about the likelihood that the court will decide to excuse waiver, given that a reversal on the cell tower claim solely due to waiver simply opens up grounds for an AIC claim against appellate counsel?

Also, re. the cell tower expert war stuff, you do realise the defence had submitted an affidavit from the state's expert at the time, who did work for AT&T at the time - he was prepared to testify but the judge asked for things to be hurried along, and accepted an updated affidavit instead.

Posted by: Cupcake | May 8, 2017 10:26:21 AM

@cupcake:

Re: excusing waiver, I honestly haven’t given it much thought. If I have time, I will add something to the post that CM devoted to that topic.

Re: the affidavits, no, I didn’t realize that. But having now read them, I’m even more confident in my conclusions. Warwinowitz says almost exactly what my EE friend said – that this is below the engineering level of things and has more to do with why the AT&T legal department thought it necessary to put that disclaimer on there.

“As an RF Engineer, I did not work with billing records (or subscriber activity reports) and had never seen AT&T Wireless billing or legal documents before I was presented with this document. RF Engineers worked with raw data from the switch. Billing records were separated from engineering activity for security and privacy. … If I had known that it was AT&T Wireless’ legal policy for incoming calls to not be considered reliable information in determining cell phone location, I WOULD HAVE INQUIRED FURTHER within my organization and attempted to learn WHY this disclaimer was issued.” (emphasis added).

The second affidavit says he stands by his first affidavit, then he says the fax cover sheet is ambiguous, and then he ventures a guess as to what it means. But it’s clear that at no point before writing the first or second affidavit did Warwinowitz ever do what he himself said would be necessary – talk to people within AT&T who handled those records at the time to find out why they put the disclaimer on there. Syed’s expert didn’t do that either. Only one person did – Fitzgerald. He offered an actual reason why the disclaimer was necessary, explaining that while “switch” data would *sometimes* be unreliable, the same wasn’t true of cell tower data. Syed’s expert offered nothing of substance.

Posted by: Sam | May 8, 2017 12:08:20 PM

Sam: It's important to note that Judge Welch (1) found that Fitzgerald was lacking in credibility and actually helped prove the defense's case (based on his voicemail explanation); and (2) found Waranowitz's affidavits sufficiently compelling to grant a new trial without his testimony, so we don't know what he actually would have said at the hearing. COSA will only reverse these factual findings if they were clearly erroneous.

Posted by: Colin | May 8, 2017 1:07:40 PM

@Sam

Where did you get a transcript of the PCR?

Posted by: pluscachange | May 8, 2017 3:01:02 PM

@ Colin
I’m not a lawyer so I look to other peoples opinions. From what I have seen, it looks as though the state has a very good chance to overturn the fax cover sheet due to waiver.
Am I right in saying that if that is the case and the fax cover sheet is out, then Adnan needs to overturn Welch’s decision on the Asia alibi in order to grant Adnan a new trial?
I just can’t see how COSA would over-rule Welch on the Asia alibi because as Welch points out, Jay was adamant that the come and get me call was after 3pm. Jay was the state’s star witness and the jury clearly believed jay because they convicted Adnan in 2 hours. The state simply put a theory forward that they thought the 2.36pm call was the come and get me call. Jay said otherwise. The come and get me call could easily have been the 3:15pm incoming call. Asia said she saw Adnan from 2.15pm until 2.35pm. Adnan stated on the 13th Jan to officer Adcock that Hae must have got tired of waiting for him. So what was Adnan doing? Was he at the library?
I can’t see how Asia would have changed the jury’s decision. The timeline was simply too grey. The state’s theory and what Jay and Jen said clashed. The jury obviously believed Jay.
@ Sam
Yes agree with you on point number 5. Jay was much more involved in the crime.
And yes if the fax cover sheet is out on waiver, then I just can’t see how Asia makes any difference to the timeline as it was very grey at trial. The jury believed Jay who was adamant that the come and get me call was after 3pm and there was an incoming call at 3:15pm which it could well have been.
So I don’t see how anything changes if the fax cover sheet is out on waiver. If the fax cover sheet is in, then that’s a different story.

Posted by: ben | May 8, 2017 4:25:28 PM

@Sam

Arrington absolutely says the waiver rules are what they are, and apply to all reopened proceedings. But I think that dividing all reopened proceedings into the categories "ordinary" and "§ 8-201-flavored" is maybe just a little bit overly broad.. Who (if anybody) did what (if anything), in what venue, when, and why are all pertinent consideration in relation to how and whether the waiver rules apply to the claim for which proceedings were reopened. And that's actually according to the rules themselves.

Anyway, what constitutes "ordinary"? Stop stigmatizing proceedings reopened under the authority of § 8-201 for being statutorily "different" from all the other reopened proceedings. They have feelings too, you know.

Adnan's PCR was reopened on remand from COSA in relation to an issue raised in his initial petition. At least as I understand it, that's (a) not anybody's idea of ordinary; and (b) manifestly not the same as moving to open years after the initial petition has been entirely resolved for an entirely new claim based on entirely new evidence that you obtained by petitioning for it in an entirely different proceeding than the one you're now moving to reopen.

The latter is where Arrington was at. So adding any new claims that could have been raised in his initial PCR petition would have meant tacking them onto a separate, unrelated, and essentially parallel proceeding. That's just not Adnan's situation. His PCR was reopened pursuant to new information in relation to a claim from his first petition by the same judge who'd heard it when it was less complete, and whose ruling on it was not yet final.

You could call that a new proceeding newly begun or the same proceeding begun by the initial petition, reopened. But Arrington doesn't say which it is, or even shed any light on it. It's not obvious, and it does matter. That's my position and I'm sticking to it..

Posted by: pluscachange | May 8, 2017 4:40:39 PM

@Colin:

Sure, we don’t know what Waranowitz would have said on the stand, but is there any reason to think his testimony would have differed substantially from what he wrote in his affidavits? Any reason to think he talked with late-‘90s AT&T legal department staff and was just saving that tidbit in case he got called to the stand? C’mon. Only Fitzgerald went that deep. Only Fitzgerald had an explanation for why the disclaimer might have been written in the first place. Syed’s expert didn’t have an alternate explanation. In fact, in Judge Welch’s opinion, Waranowitz is mentioned 47 times, Fitzgerald 19, and Grant once – in a footnote. Amazing.

@pluscachange:

I got it from another lawyer in Baltimore. (They don’t call it “Smalltimore” for nothing). I sometimes forget most followers of this case have no connection to the city. Is the transcript not available online? No wonder everyone has fallen for this this hook, line, and sinker.

Posted by: Sam | May 8, 2017 5:16:49 PM

@Sam

(1) If people falling for this hook, line, and sinker seems to you like something that could be cured by exposure to the PCR transcript and you have one, you could easily make a difference for the better by posting it on Scribd or some other platform of your choice. I'd thank you for it, and I'm sure others would too.

(2) I'm curious as to whay you think it means that your friend said the cover sheet issue was "way below the engineering level." As far as I know, it's never been in dispute that the disclaimer is referring to an anomaly in how AT&T's Bell AMA system records data, not how AT&T's network system handles calls.

For hypothetical example: Let's say you have an AT&T Wireless account and you originate call. The engineering reality is that the phone then sends a signal that connects to an in-range tower, which the network then relays to the terminating number via other towers, or possibly directly if the phones are close to each other. The AMA reality is that the system grabs the first tower that the signal generated by your call hits, puts it in the cell-site field, and ignores the other towers in the relay, if any.

Now let's say the terminating number also belongs to someone with an AT&T Wireless account. The engineering reality is the same, but the AMA reality is that the system is now generating two records of the same call, except the one receiving the call should say "incoming" and have the last rather than the first.tower the signal hits in the cell-site column.

As I understand the explanation that Grant didn't have a chance to give on rebuttal, it's something more or less like that under those circumstances,when the AMA system sometimes reaches for the cell-site data it's going to put in the recipient's record of that call, it finds that field already occupied and can't or doesn't overwrite it, due to some quirk in the software that's designed to do something else -- maybe ensure that the system stops grabbing tower info after the outgoing signal connects to the first one, or whatever. But in all events, something that's not an engineering issue.

I'm pretty sure that's actually true for Fitzgerald's explanation, too. Isn't it?

Posted by: pluscachange | May 9, 2017 6:34:35 AM

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