Thursday, March 9, 2017
I've gotten some good feedback on my posts last week (here and here) about waiver in the Adnan Syed appeal. After reviewing the relevant Rules/Section some more, I feel like I have a better grasp on whether waiver is a potential winning argument for the State on appeal.
Wednesday, March 8, 2017
After a few posts on procedural matters in connection with the State's appeal in the Adnan Syed case, this post takes me back to the substance of the State's appeal This is the post where I lay out the precedent that I think will lead the Court of Special Appeals to affirm Judge Welch's order granting Adnan a new trial.
1. Bowers v. State, 578 A.2d 734 (Md. 1990) Court of Appeals of Maryland;
2. People v. Lee, 185 Ill.App.3d 420 (Ill.App. 1989) Appellate Court of Illinois;
3. People v. Trait, 139 A.D.2d 937 (N.Y.A.D. 4th 1988) Supreme Court of New York, Appellate Division; and
4. Driscoll v. Delo, 71 F.3d 701 (8th Cir. 1995).
Tuesday, March 7, 2017
As I noted in my post yesterday,
there's a good argument that the State's waiver argument in the Adnan Syed case is a non-starter. If that's true, the only possible procedural ground for overruling Judge Welch's order granting a new trial would be a finding that Judge Welch exceeded the authority granted to him by the Court of Special Appeals (COSA) in its remand order by allowing Adnan to supplement his Asia/ineffective assistance claim with the cell tower/ineffective assistance claim.
This is my second post on the subject.
Monday, March 6, 2017
Supreme Court Exercises its Duty to Confront Racial Animus, Allows Jury Impeachment Based on Racial Bias
There's one legal topic I've discussed on this blog more than any other: Should jurors be able to impeach their verdicts by testifying about racial bias during deliberations. I link to many of my posts in this post, which also discusses the article I wrote on the topic: Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense.* Now, about eight years after that article, the United States Supreme Court has finally agreed.
As I noted in a post last Wednesday, there's a good argument that the State's waiver argument in the Adnan Syed case is a non-starter. If that's true, the only possible procedural ground for overruling Judge Welch's order granting a new trial would be a finding that Judge Welch exceeded the authority granted to him by the Court of Special Appeals (COSA) in its remand order by allowing Adnan to supplement his Asia/ineffective assistance claim with the cell tower/ineffective assistance claim. In the next few posts, I will take a look at that argument.
Friday, March 3, 2017
In order to find ineffective assistance of counsel on the cell tower issue, Judge Welch needed to find (1) unreasonable performance; and (2) prejudice, i.e., a reasonable probability of a different outcome at trial if Gutierrez had cross-examined the State's cell tower expert with the AT&T disclaimer at trial. In its Brief of Appellant, the State spends a good deal of time arguing against unreasonable performance, but it doesn't spend much time arguing against prejudice. The State's prejudice argument is about a page and a half: one paragraph on page 34, all of page 35, and one paragraph on page 36.The heart of the State's argument is as follows:
So, is the State correct that the time, duration, sequence, and dialed numbers on Adnan's call log reinforce the veracity of Jay's testimony?
Thursday, March 2, 2017
According to the State's Brief of Appellant in the Adnan Syed case:
This is probably the most facially compelling argument in the State's brief. It is well established that appellate courts will find ineffective assistance based upon omissions and not based upon choices, assuming that those choices involve some modicum of strategy. Judge Welch found that Cristina Gutierrez's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert was an omission warranting a new trial.
Conversely, in its brief, the State tries to recharacterize Gutierrez's decision as a choice based upon strategy. The AT&T disclaimer, of course, stated that
The State's contention, then, is that Gutierrez's strategy was to attack the reliability of all pings and that use of the AT&T disclaimer would have tended to confirm the reliability of incoming pings. But there's a huge problem with this argument.
Yesterday, I posted an entry about Poole v. State, 203 Md.App. 1 (Md.App. 2012), which might be the most important case for Adnan's appeal. The heart of the State's Brief of Appellant is the claim that Adnan had to demonstrate "extraordinary cause" for failure to raise his ineffective assistance/cell tower claim within the ten-year statute of limitations in order to raise it in his reopened PCR proceeding. If you're wondering how difficult it is to establish "extraordinary cause," consider this tweet by Erica Suter, an expert in Maryland appellate law:
Simply put, if the Court of Special Appeals (COSA) applies the "extraordinary cause" test, the State wins its cell tower appeal, unless COSA decides to excuse the waiver. But one thing now seems abundantly clear: COSA won't apply the "extraordinary cause" test.
Wednesday, March 1, 2017
In his opinion granting Adnan a new trial, Judge Welch found that the right to counsel is a "fundamental right," meaning that a claim of ineffective assistance of counsel cannot be waived pursuant to Curtis v. State unless that waiver was "intelligent and knowing." By way of contrast, claims that are not fundamental are waived if they are not brought within the ten year statute of limitations unless the defendant can establish "extraordinary cause" for late filing. In its Brief of Appellant, the State claimed that Judge Welch erred in his opinion and that Adnan needed to establish "extraordinary cause" for Judge Welch to be able to hear his ineffective assistance/cell tower claim. But, in doing so, the State pointed to a precedent that strongly suggests that Adnan should have been "freely allowed" to add his ineffective assistance/cell tower claim without having to comply with Curtis v. State or establish "extraordinary cause."
Tuesday, February 28, 2017
In my opinion, the State's best chance at winning it's appeal on the ineffective assistance/cell tower issue is the argument that Adnan waived his claim on this issue by not bringing it within the 10 year statute of limitations. In its Brief of Appellant, however, the State has ignored a hugely important opinion of the Court of Appeals of Maryland on the issue.
Clearly Erroneous?: Why COSA is Especially Unlikely to Reverse Judge Welch's Factual Findings on the AT&T Disclaimer
As I've noted in my last three posts, the State cited three cases in its Brief of Appellant in the Adnan Syed case on the substantive issue of whether Cristina Gutierrez was ineffective in failing to use the AT&T disclaimer to cross-examine the State's cell tower expert: (1) Maryland. v. Kulbicki (post); (2) United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991) (post); and (3) Henry v. State, 772 S.E.2d 678 (Ga. 2015) (post). As I noted in each of those posts, I don't think any of these cases actually help the State's argument. That said, they are all legal precedents, and the Court of Special Appeals of Maryland will engage in a de novo/clean slate review of the legal question regarding whether Adnan received the ineffective assistance of counsel.
The State, however, spent the bulk of its Brief of Appellant claiming that Judge Welch made factual errors in his assessment of the credibility of the cell tower experts at the PCR proceeding. In this post, I will address the legal standard that the Court of Special Appeals will apply to these arguments.
Following up on yesterday's post, the second case cited by the State in its Brief of Appellant in the Adnan Syed case in the ineffective assistance/cell tower claim was Henry v. State, 772 S.E.2d 678 (Ga. 2015). Let's start with the obvious: This is a Georgia state case, so it is persuasive precedent, which the Court of Special Appeals of Maryland could apply or ignore. So, why did the State cite the Henry case?
Monday, February 27, 2017
Today, the State filed its Brief of Appellant in the Adnan Syed case. As I noted in my post last Wednesday, my biggest question was whether the State would cite to any cases other than Maryland. v. Kulbicki on the issue of whether Cristina Gutierrez was ineffective in failing to use the AT&T disclaimer to cross-examine the State's cell tower expert. In this post, I will discuss one of the two cases that the State cited.
Wednesday, February 22, 2017
It's currently five days before the State's first brief is due in the Adnan Syed appeal. The State is appealing the portion of Judge Welch's order concluding that
Syed's trial counsel's failure to challenge the State's cell phone location data evidence, based on the cell phone provider's "disclaimer," violated Syed's Sixth Amendment right to the effective assistance of counsel.
My biggest question is whether the State will be able to cite to any case other than Maryland. v. Kulbicki to support its position. And that's because I don't think Kulbicki is especially helpful to the State's case.
Monday, February 20, 2017
Early in the first episode of "The Good Fight," Maia Rindell (Rose Leslie) asks Diane Lockhart (Christine Baranski), "Are we on the right side of this?" The two are defending Cook County in a lawsuit alleging police brutality against an African-American man. Rindell's career is just starting; Baranski's career is just ending. But when Rindell's hedge fund father is busted for facilitating a Ponzi scheme, both find themselves beginning anew at the African-American law firm they had just been fighting against. And, as the first episode makes clear, the question for both women is suggested by the series title: What does it mean to fight the good fight?
Friday, February 17, 2017
Back in November 2014, Julia Simon-Kerr, an Associate Professor at the University of Connecticut School of Law, did a series of guest posts on this blog (see here). Those posts were about one of my favorite subjects covered by the rules of evidence: impeachment, the process by which a party calls into question the credibility of a witness. Part of what makes this subject so intriguing is that it requires judgment calls over what acts of a person bear upon that person's honesty, integrity, and credibility. Is a person with a violent past less credible than a person who has never harmed a fly? And what about a history or drug abuse? Prostitution? Gambling?
Thursday, February 9, 2017
Wednesday, February 8, 2017
Monday, January 30, 2017
On Friday, Justin Brown filed an application seeking leave to appeal Judge Welch's denial of the defense's motion for release pending appeal in the Adnan Syed case. I'm in the process of finalizing the first in a series of Undisclosed episodes about a South Carolina case, so my analysis of this application will be briefer than usual.
Friday, January 20, 2017
As I noted on Wednesday, the Court of Special Appeals of Maryland (COSA) will consider five or six issue in the Adnan Syed case:
1. Did Judge Welch abuse his discretion in hearing the cell tower claim;
2. Did Adnan waive the cell tower claim;
3. If Adnan waived the cell tower claim, should the court excuse the waiver;
4. Did Judge Welch err in finding ineffective assistance of counsel on the cell tower claim;
5. Did Judge Welch err in finding no ineffective assistance/prejudice on the Asia/alibi claim; and
6. Did Judge Welch err in not doing a cumulative prejudice analysis?
If we're operating under the assumption that the Court of Appeals of Maryland (Maryland's highest court) will allow the losing party to appeal COSA's opinion, then COSA's opinion on issues #1 and #3 might be he most important. Why?