EvidenceProf Blog

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

Wednesday, March 29, 2017

Legal Bombshell: My First Take on Adnan's Appellate Brief

Today, Justin Brown filed the defense's Brief of Appellee/Cross-Appellant in the Adnan Syed case. As was the case with the State's Brief of Appellant, I will do a series of posts about this brief.

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March 29, 2017 | Permalink | Comments (18)

Monday, March 27, 2017

A Deep Dive Into Jay's Five Competing Stories About Track Practice

Two days before the deadline for the filing of the defense's appellate brief in the Adnan Syed case, I thought I'd take a look back at one of the most significant parts of the case: track practice. Simply put, if Adnan was on time for track practice, it's really hard to imagine a scenario where Adnan is guilty. Conversely, if Adnan was (very) late to track practice, it's really hard to imagine a scenario where Adnan is innocent. In this post, I will list the five different versions of track practice that Jay gave, followed by some conclusions:

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March 27, 2017 | Permalink | Comments (24)

Thursday, March 23, 2017

A Comprehensive Look at the Current Status of Adnan's Case

I've been getting a lot of questions about the current status of the Adnan Syed case, so I thought that I would do a post that gets into the nitty gritty of it.

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March 23, 2017 | Permalink | Comments (5)

Friday, March 17, 2017

Entertainment Weekly's New True Crime Feature, Rebecca Schaeffer & Anti-Stalking Laws

Yesterday, Entertainment Weekly posted "When Devotion Turns Deadly," the first article for their new feature, http://truecrime.ew.com:

Screen Shot 2017-03-17 at 12.43.15 PM

 

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March 17, 2017 | Permalink | Comments (0)

Thursday, March 16, 2017

Was the "Come & Get Me" Call the Linchpin on the State's Case Against Adnan?

Having focused on the State's Brief of Appellant in the Adnan Syed over the last two weeks, I wanted to turn my attention to the upcoming Brief of Appellee, which is scheduled to be filed by March 29th. In addition to responding to the State's Brief of Appellant, the Brief of Appellee will also allege that Judge Welch erred in his ruling on the Asia/ineffective assistance claim. Specifically, the defense will argue that (1) Judge Welch correctly concluded that trial counsel acted unreasonably in failing to contact Asia McClain; but that (2) Judge Welch incorrectly concluded that this error was not prejudicial, i.e., does not undermine our confidence in the jury's verdict.

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March 16, 2017 | Permalink | Comments (14)

Thursday, March 9, 2017

Delving Deeper Into the Waiver Issue in the Adnan Syed Case

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.  

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March 9, 2017 | Permalink | Comments (9)

Wednesday, March 8, 2017

Why the Law's All on the Defense's Side in the Adnan Syed Case

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.

In finding ineffective assistance based on trial counsel's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert, Judge Welch cited four cases:

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).

So, what did the State have to say about these cases in its Application for Leave to Appeal (ALA) and Brief of Appellant?

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March 8, 2017 | Permalink | Comments (10)

Tuesday, March 7, 2017

The Abuse of Discretion Standard & the Scope of Remand in the Adnan Syed Case

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.

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March 7, 2017 | Permalink | Comments (1)

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.

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March 6, 2017 | Permalink | Comments (1)

Is Adnan's Cell Tower Claim Related to His Asia Claim Based on a Prejudice Analysis?

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. 

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March 6, 2017 | Permalink | Comments (3)

Friday, March 3, 2017

Is the State Right That the Time, Duration, and Sequence of Dialed Numbers Corroborated Jay?

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:

Screen Shot 2017-03-03 at 7.28.35 AM

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?

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March 3, 2017 | Permalink | Comments (4)

Thursday, March 2, 2017

Refuting the State's Claim That Gutierrez's Strategy Was to Undermine All Cell Records

According to the State's Brief of Appellant in the Adnan Syed case:

Screen Shot 2017-03-02 at 11.36.55 AM

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

Screen Shot 2017-03-02 at 11.41.22 AM

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.

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March 2, 2017 | Permalink | Comments (7)

Why Adnan's Cell Tower Amendment is Not Governed by the "Extraordinary Cause" Test

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:

Screen Shot 2017-03-02 at 7.24.59 AM
 

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.

 

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March 2, 2017 | Permalink | Comments (4)

Wednesday, March 1, 2017

Why the State Might Have Just Lost the Waiver Argument in the Adnan Syed Appeal

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." 

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March 1, 2017 | Permalink | Comments (3)

Tuesday, February 28, 2017

The State Missed a Hugely Important Case in its Brief in the Adnan Syed Case

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.

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February 28, 2017 | Permalink | Comments (13)

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.

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February 28, 2017 | Permalink | Comments (8)

My 2nd Take on the State's Brief of Appellant in the Adnan Syed Case

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? 

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February 28, 2017 | Permalink | Comments (4)

Monday, February 27, 2017

My 1st Take on the State's Brief of Appellant in the Adnan Syed Case

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.

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February 27, 2017 | Permalink | Comments (9)

Wednesday, February 22, 2017

A Preview of the State's Appellate Brief in the Adnan Syed Case

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.

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February 22, 2017 | Permalink | Comments (9)

Monday, February 20, 2017

In My Opinion: My Review of "The Good Fight" Premiere

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?

Good Fight

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February 20, 2017 | Permalink | Comments (1)