EvidenceProf Blog

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

Friday, June 16, 2017

My Prediction for How the Court of Special Appeals Rules in the Adnan Syed Case

Last Thursday, the Court of Special Appeals of Maryland heard oral arguments in the Adnan Syed case. Steve Klepper, an expert in Maryland appellate law, has predicted that the Court of Special Appeals will issue its opinion in the case 3-12 months from now (possibly earlier, possibly later). Here's how I think the court will rule and why.

I think the Court of Special Appeals will (1) agree with Judge Welch that Cristina Gutierrez acted unreasonably by failing to contact prospective alibi witness Asia McClain; and (2) reverse Judge Welch and conclude that Gutierrez's failure to contact Asia McClain was prejudicial, i.e., undermines our confidence in the jury's verdict. As a result, the Court of Special Appeals will grant Adnan a new trial on this claim and not disturb Judge Welch's conclusion that Adnan received ineffective assistance of counsel based upon Gutierrez's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert. This is the theory I proposed in Wednesday's episode of Undiclosed, but this post allows me to explain this theory is more detail. Here is my reasoning:

1. The bulk of the oral arguments dealt with the alibi issue. Indeed, the State never addressed the merits of the cell tower claim and only briefly touched upon one part of the waiver analysis (whether waiver is even a possibility given that the PCR petition was never "finally litigated"). The State never addressed whether Gutierrez should have used the AT&T disclaimer, whether her failure to do so was prejudicial, whether Curtis v. State is still good law, or whether Curtis v. State applies to Adnan's case. Moreover, this wasn't just the attorneys' choice. The judge seemed solely concerned with the alibi issue, implying that they might only want to address the alibi issue and not the cell tower issue.

2. A ruling on the alibi issue wouldn't create any new law. In In re Parris W., the Court of Appeals of Maryland found that defense counsel was ineffective in his handling of prospective alibi witnesses. As the defense and Judge Welch have noted, the Parris W. court cited several cases for the proposition that failure to contact an alibi witness is unreasonable. Moreover, Parris W. was a case where the court found prejudice based upon an alibi witness who merely might have contradicted the State's unclear timeline. It would therefore be pretty easy for the Court of Special Appeals to grant Adnan relief by just applying Parris W. Doing so wouldn't risk opening the floodgates to a bevy of new ineffective assistance/alibi claims or closing the door on possibly meritorious ineffective assistance/alibi claims. 

3. I don't think that the Court of Special Appeals wants to touch the waiver issue. A ruling affirming or reversing Judge Welch's cell tower ruling means that the Court of Special Appeals has to address the waiver issue. Does it rule in favor of Adnan on the waiver issue? In that case, as the Court of Special Appeals noted during oral arguments, it could open the floodgates for petitioners bringing successor PCR petitions years and even decades after their convictions, alleging new claims of ineffective assistance of trial counsel. Alternatively, does it rule against Adnan on the waiver issue? In that case, it could close the door on possibly meritorious claims of ineffective assistance of counsel where defendants had bad trial and post conviction attorneys (or missed something while proceeding pro se on appeal).*

Now, both the State and defense would claim that Adnan's case could be limited to its facts, but that wouldn't stop future litigants from arguing that Syed v. State should be read expansively. That's the beauty of the Court of Special Appeals not touching Judge Welch's cell tower ruling: Again, it doesn't create new law. Whereas opinions of the Court of Special Appeals are precedential opinions by Circuit Court judges are not. If the Court of Special Appeals merely lets Judge Welch's cell tower ruling stand, subsequent litigants couldn't cite it for the waiver issue. They also couldn't cite it on the question of whether Gutierrez was ineffective in her handling of the AT&T disclaimer. While that issue is less of a hot potato issue than the waiver issue, it's still easy to imagine the Court of Special Appeals being gun-shy about addressing it in the wake of Kulbicki.

4. If I'm right about how the Court of Special Appeals will rule, I think it will issue its opinion sooner rather than later, i.e., closer to 3 months after oral arguments than 12 months. This is because the court would just need to address the alibi issue and not the cell tower issue. Also, in this event, I think it is less likely that the Court of Appeals would allow the State to appeal for two reasons: (1) as Susan noted on Undisclosed, a ruling on the alibi issue is less groundbreaking than a ruling on the cell tower issue, meaning that the Court of Appeals would feel less need to intervene; and (2) there would now be two ground for a new trial, IAC/alibi (COSA) and IAC/cell tower (Judge Welch), meaning that the Court of Appeals would need to think there was a decent chance of the State winning both of these issues on appeal to take that appeal.

5. Of course, this is just a prediction, and I could easily see things going another way. That said, at this point, I do feel pretty confident based on the briefs and oral arguments that the Court of Special Appeals won't rule against Adnan on the following issues (1) the prejudice prong on the cell tower claim; (2) the deficient performance prong of the alibi claim (the State couldn't cite a single case to the contrary); and (3) whether Judge Welch exceeded the scope of the remand order in considering the cell tower claim.

That leaves three issues that the State might win, and it has to win two of them to get a reversal of Judge Welch's order granting a new trial: (1) the prejudice prong of the alibi claim; and either (2)(a) the waiver claim; or (b) the deficient performance prong of the cell tower issue. In other words to win the State needs to win issue (1) and also win issue (2)(a) or (2)(b). Should the Court of Special Appeals reach the waiver issue, I think that issue is a complete toss-up. In terms of deficient performance on the cell tower issue, I think the defense had the stronger arguments in the briefs, but it's tough to get much of a read on the judges given that this was barely touched upon in oral arguments and not touched upon at all in the State's presentation. Finally, in terms of the prejudice prong of the alibi claim, it seemed to me like the judges were siding with the defense given Wearry v. Cain and the timeline argued by the State in closing (and opening), but I could still possibly see them buying the State's claim of "overwhelming" evidence if the cell tower argument falls by the wayside.

______________________

*Of course, there's the possibility of bringing a claim of ineffective assistance of post conviction counsel. But, to the extent that the Court of Special Appeals recognizes this option, what would be the point of reversing Judge Welch's order granting a new trial solely on waiver grounds? It would just mean that it would be hearing the cell tower claim in repackaged form in a few years.

-CM

http://lawprofessors.typepad.com/evidenceprof/2017/06/last-thursday-the-court-of-special-appeals-of-maryland-heard-oral-arguments-in-the-adnan-syed-case.html

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Comments

I guess an assumption here is that COSA does not WANT to make new law on the waiver issue. Could you envision the opposite?

Posted by: Michael | Jun 16, 2017 8:06:56 AM

Michael: Maybe, but COSA is somewhat limited in their authority. For instance, they can't overrule Curtis. So, the question is whether they could reverse on waiver despite this fact.

Posted by: Colin Miller | Jun 16, 2017 8:45:47 AM

Colin,

Don't you think the waiver decision is important for them to make as that decision ultimately affects the Asia prejudice decision in relation to the amount of evidence against Adnan (whether incomings calls are in)?

Posted by: Ben | Jun 16, 2017 7:04:05 PM

Ben: That's the question. If COSA thinks that the failure to contact Asia alone isn't enough to establish prejudice, then they will need to reach the cell tower issue. But, if they think that the failure to contact Asia alone is enough to establish prejudice, then they don't need to reach the cell tower issue. My prediction is the second scenario.

Posted by: Colin Miller | Jun 17, 2017 3:17:57 AM

Two things:

1) As a lay person, this waiver issue seems a little unfair. I do not think that Adnan or his postconviction relief counsel were aware of the AT&T fax cover sheet until they amended the motion for post-conviction relief in 2015. So to not allow Adnan to file a petition for post-conviction relief based on this "new evidence" simply because he was previously denied relief during another proceeding that involved completely different issues seems unfair and against the interests of justice. Can you expound upon the logic of this rule? Is the only purpose to support the finality of the judicial process?

2) Does the Court of Special Appeals of Maryland every provide the parties with information as to when they plan on issuing a decision? Or is it basically a surprise when they render a decision or everybody remains on "pins and needles" until they do?

Posted by: Teeter | Jun 17, 2017 1:55:47 PM

Colin,
Understand, I just can't see that being enough. I'm sure they'll need to assess all the evidence against Adnan

Posted by: Ben | Jun 17, 2017 7:38:15 PM

Teeter,

The logic of the waiver rule would be that postconviction counsel had the disclaimer prior to the original PCR filing but did not include it in their petition at that time or at any time before Welch's original ruling.

Whether or not it is a valid claim, that is the reasoning.

Posted by: Michael | Jun 18, 2017 4:39:07 AM

Teeter and Michael: Yes, it’s about finality and the unfairness of forcing the State to relitigate cases years or decades later. That said, Maryland has recognized a claim of ineffective assistance of post conviction counsel. Therefore, I’m not really sure what purpose would be served by the Court of Special Appeals finding waiver in this case or similar cases. It would simply lead to petitioners/defendants claiming that they received the ineffective assistance of post conviction counsel.

Ben: My question, though, is why every case (as far as we know) in which a court has found deficient performance in failing to contact an alibi witness had also found prejudice. That’s what the defense said at oral arguments, and the State has cited no cases to the contrary. Now, of course, Judge Welch did find no prejudice based upon the failure to contact Asia McClain, but that was largely based upon his conclusion that the Leakin Park pings were the “crux” of the State’s case. I don’t think Judge Welch was aware of Wearry v. Cain (decided after oral arguments), but I think the oral arguments (and the defense brief) make it apparent that the COSA judges are aware of this new Supreme Court case. I don’t think that it’s a slam dnk that the defense wins the prejudice issue with regard to the alibi claim, but I’m not sure what precedent COSA would cite to the contrary.

Posted by: Colin Miller | Jun 18, 2017 5:55:02 PM

Colin,
If the state wins and Adnan files for IAC of post conviction counsel (against Justin Brown), would Adnan's new attorney need to get Asia to testify?
Couldn't the state put the sister's on the stand to testify too?

Posted by: ben | Jun 18, 2017 6:27:51 PM

I think COSA will reverse Judge Welch’s ruling on the cell tower claim based on scope and waiver. If I were in their shoes, I’d accept the State’s invitation to limit Curtis to its facts. Based on the oral argument (meaning the parts you shared in your podcast), I think it’s clear the State will lose on the performance prong of the Asia IAC issue. That would mean the whole case would come down to prejudice on the alibi issue. Justin Brown at oral argument described the cell tower evidence as one of the two pillars on which the State rested its case. If one of those pillars is still standing (because the cell tower argument gets tossed out), then Syed has a harder time establishing prejudice.

Posted by: Sam | Jun 19, 2017 8:41:53 AM

Sam: How would COSA limit Curtis to its facts. Curtis held that (1) the right to the effective assistance of counsel is a fundamental right; (2) as such, a claim of ineffective assistance of counsel is subject to the knowing and intelligent waiver standard; and (3) Curtis did not knowingly and intelligently waive his IAC claim. Where do you see room to limit its holding?

Posted by: Colin Miller | Jun 19, 2017 11:12:14 AM

Didn’t the State argue that Curtis was aimed at total abandonment of counsel, as opposed to merely ineffective counsel? That’s what I meant. The court could narrowly read Curtis to apply to cases in which there was an outright denial of counsel (or the functional equivalent), rather than merely some deficient performance by counsel. I don’t recall seeing any examples of Curtis being applied the way Judge Welch applied it, and that’s after the passage of some 40 years. I know you feel differently about Adams, but I failed to convince you that case did not apply Curtis, so as you say, we’ll have to agree to disagree there.

Posted by: Sam | Jun 19, 2017 11:27:31 AM

Sam: I agree that's a possibility, but the Maryland appellate courts have found that the right to counsel is the right to the effective assistance of counsel:

http://lawprofessors.typepad.com/evidenceprof/2017/05/in-his-opinion-granting-adnan-a-new-trial-judge-welch-cited-tocurtis-v-state395-a2d-464-md-1978-which-held-that-1-t.html

As such, I have a tough time seeing COSA reading Curtis in this way. I will admit, though, that the judges seemed uncomfortable with a broad reading of Curtis during oral arguments.

Posted by: Colin Miller | Jun 19, 2017 11:54:35 AM

From a logical point of view, the whole right to counsel vs right to effective counsel issue is troubling.

Were the courts to find that a defendant was entitled to counsel, but not to effective counsel, that would, in effect, establish a right to a constitutionally deficient lawyer, wouldn't it?

That's a place I would hope the courts never go.

Posted by: Michael | Jun 19, 2017 2:14:19 PM

Michael: Right. I think that's the point of the cited cases: A right to counsel would be hollow if it weren't the right to the effective assistance of counsel.

Posted by: Colin Miller | Jun 20, 2017 6:03:40 AM

A narrow reading of Curtis wouldn’t eviscerate the right to effective assistance of counsel. Defendants would still be able to claim IAC in postconviction petitions; they would just need to assert all their IAC claims in their initial petitions or else lose those claims to procedural default. That’s the whole point of the one-petition rule and the waiver provision anyway. And that’s how it works will all sorts of other claims for postconviction relief. It would make some sense to add an additional layer of protection for those whose counsel completely abandoned them, which is arguably all Curtis was doing.

The more expansive reading of Curtis would create an exception that nearly swallows the rule. Lots of claims for postconviciton relief can be re-styled as IAC claims. Instead of “the court erred in doing X,” petitioners would just claim “my counsel was ineffective for failing to object to/adequately address/adequately investigate X.”

Posted by: Sam | Jun 20, 2017 6:32:37 AM

Sam: But what do you make of Stovall and this post:

http://lawprofessors.typepad.com/evidenceprof/2017/05/in-itsreply-brief-and-appendix-of-cross-appellee-the-state-makes-the-following-argument-d.html

Would you agree that a narrow reading of Curtis would simply lead defendants like Adnan to claim ineffective assistance of post conviction counsel if COSA/COA found that they waived their ineffective assistance of trial counsel claims? And, if that's the case, what's the point of reading Curtis restrictively other than forcing defendants to repackage their claims?

Posted by: Colin Miller | Jun 20, 2017 8:11:44 AM

I’m not convinced that just because trial counsel’s error constituted deficient performance, postconviction counsel is necessarily ineffective for failing to include that IAC claim in the petition. There’s another whole layer of strategic decisions to be made at the postconviction level. PCR counsel has to decide how to allocate investigative resources and which claims to press. There’s value in not throwing in the kitchen sink. Imagine if Justin Brown thought the cell tower claim was shaky and would detract from the stronger alibi issue. Imagine he didn’t have much confidence in the defense cell tower expert and thought Fitzgerald would crush him during the hearing. Just because those things turned out to be wrong in hindsight doesn’t mean they weren’t strategic decisions – akin to the sorts of strategic trial decisions to which courts will defer, even if they think a different approach might have made a difference at trial.

Posted by: Sam | Jun 20, 2017 8:49:12 AM

Sam: I fully agree with that analysis if Justin Brown (or a PCR attorney in a similar case) said that he made the strategic decision not to include an issue in a PCR petition. But Justin has indicated in his briefs that he was unaware of the cell tower issue until well after Judge Welch’s initial PCR ruling. In that scenario, what difference does it make whether we find (1) pursuant to Curtis that the petitioner/defendant can raise a belated claim of ineffective assistance of trial counsel because he didn’t knowingly and intelligently waive the claim or (2) pursuant to Stovall that the petitioner/defendant can raise a claim of ineffective assistance of post conviction counsel? And, specifically, in Adnan’s case, what would be the purpose of reversing on waiver, which would simply result in COSA (and then maybe COA) resolving the alibi issue, followed by Adnan filing a Stovall claim on the cell tower issue in the event the alibi ruling goes against him? Why not just resolve everything at the same time?

Posted by: Colin Miller | Jun 20, 2017 9:13:45 AM

Now it seems to me you’re shifting back to your argument that COSA should use its discretion to excuse waiver in this particular case. You asked me what purpose would be served by a narrow reading of Curtis, suggesting it would never serve any purpose to deem a defendant’s ineffective assistance of trial counsel claim waived, because the defendant could just turn around and file an ineffective assistance of PCR counsel claim. I explained why, and you seem to agree. There are plenty of imaginable scenarios in which a defendant could waive a valid IAC claim by failing to raise it in an initial petition, and in which PCR counsel’s failure to raise it would not itself constitute ineffective assistance.

As for Syed’s case, it’s still not clear to me that Brown’s failure to find the fax cover sheet constitutes ineffective assistance of postconviction counsel just because Gutierrez’s failure to find it and use it constituted IAC of trial counsel. That was my point about a PCR counsel’s decisions about allocations of investigative resources. That sheet must have been damn hard to find if it took as many years as it did to surface, notwithstanding Syed’s army of loyal supporters. This would admittedly be a harder argument for the State to win, but if there’s ANY argument to be made, then Syed and the State should make their arguments later, if and when Syed files a Stovall claim. COSA should not pass on Justin Brown’s ineffectiveness without the benefit of any briefing or argument.

Posted by: Sam | Jun 20, 2017 9:29:47 AM

Sam: I’m not sure that we do agree. Under my reading of Curtis, a defendant does not waive a meritorious claim of ineffective assistance of trial counsel when his post conviction counsel fails to spot, and therefore fails to raise, the IAC claim in a PCR petition. Conversely, a defendant does waive a meritorious clam of ineffective assistance of trial counsel when his post conviction counsel spots the claim but makes the decision not to raise it after consulting with the defendant.

Under my reading of Stovall, a defendant would alternatively have a viable claim of ineffective assistance of post conviction counsel under scenario one but would not have a viable claim of ineffective assistance of post conviction counsel under scenario two.

I think we both agree on the second scenario but disagree under the first scenario. Specifically, you seem to be claiming that (1) post conviction could fail to spot, and therefore fail to raise, a viable claim of ineffective assistance of trial counsel; but (2) the failure to spot this claim might not constitute ineffective assistance of post conviction counsel. I think I disagree with this analysis. I believe that failure to spot a viable claim of ineffective assistance of trial counsel should automatically constitute ineffective assistance of post conviction counsel.

Posted by: Colin Miller | Jun 20, 2017 9:46:41 AM

Yes, it appears we agree about the scope of our disagreement. I honestly don’t know whether failure to spot a viable claim of ineffective assistance of trial counsel should *automatically* constitute ineffective assistance of post conviction counsel.” That seems like an awfully stringent rule. Are you aware of any cases, in any jurisdiction, that have said something to that effect? And if it’s an issue that’s even worthy of being litigated (as I think it is), then the court ought to address it when it enjoys the benefit of something other than – with all due respect – your blog posts. This never came up in the briefs, as I recall. So let Syed file his Stovall claim if it comes to that.

Posted by: Sam | Jun 20, 2017 10:11:46 AM

Sam: The defense raised the Stovall issue during oral argument.

Moreover, both the State and the defense (for different reasons) have noted that the UPPA is designed to prevent piecemeal litigation. The defense noted this in asking for the Asia/alibi remand in the first place. The State noted this in saying that the cell tower claim should have been brought in the first PCR petition.

If Adnan wins on the alibi issue, of course, this is all irrelevant. But if Adnan loses on the alibi issue and COSA/COA finds waiver of the cell tower issue, we will likely have (1) COSA opinion; (2) COA opinion; (3) motion to reopen; (4) new PCR proceeding; (5) new PCR ruling; (6) new COSA opinion; and (7) new COA opinion. Conversely, if COSA/COA recognizes that a finding of waiver is pointless based upon Stovall, it could bypass steps 3-7.

Posted by: Colin Miller | Jun 20, 2017 10:30:30 AM

Colin wrote:

"Maybe, but COSA is somewhat limited in their authority. For instance, they can't overrule Curtis. So, the question is whether they could reverse on waiver despite this fact."

Are you implying that COA has greater authority in this regard? Maybe COSA won't find (or excuse) waiver but instead will just pass the buck to COA for them to address?

Posted by: Michael | Jun 20, 2017 7:22:14 PM

Colin,
If the state wins and Adnan files for IAC of post conviction counsel (against Justin Brown), would Adnan's new attorney need to get Asia to testify?
Couldn't the state put the sister's on the stand to testify too?
__________________________
CM Note: This is the 25th and final comment that will appear on this post.

Michael: Yes. The Court of Appeals of Maryland could repudiate Curtis; the Court of Special Appeals cannot. All the Court of Special Appeals can do is try to limit Curtis to its facts such as by (as Sam noted) concluding that it only applies in cases where there was a complete abandonment by post conviction counsel.

ben: In this scenario, COSA/COA finds that Adnan waived the cell tower claim and that Judge Welch correctly denied Adnan relief on the Asia/alibi issue. At this point, Adnan would file a Stovall claim on the cell tower issue, not the Asia/alibi issue. Therefore, there wouldn’t be reason for either side to call Asia or the sisters.

Posted by: ben | Jun 21, 2017 3:44:23 AM

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