EvidenceProf Blog

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

Tuesday, May 19, 2015

Court of Special Appeals of Maryland Remands Adnan Syed's Appeal So He Can Move to Have Asia Testify

Yesterday, the Court of Special Appeals of Maryland issued an order that stayed Adnan Syed's appeal; and remanded the case to the Circuit Court for Baltimore City based upon a conclusion that these actions were "in the interest of justice." This remand will allow Adnan to move to reopen his postconviction proceeding under Section 7-104 of the Maryland Code of Criminal Procedure, which utilizes the same "in the interest of justice" standard. According to the court, "[t]his remand, among other things, will afford the parties the opportunity to supplement the record with relevant documents and even testimony pertinent to the issues raised by the appeal."

When I first saw Asia McClain's new affidavit in January, I wrote about how the Court of Special Appeals should and would remand Adnan's appeal to the Circuit Court so that Asia McClain could testify. The Court of Special Appeals has now remanded and implied that Asia will be allowed to testify, but that decision is ultimately up to the Circuit Court. For the same reasons I listed in my prior post, I think that the Circuit Court will allow Asia to testify and possibly/probably receive additional evidence. I will be recording a special minisode of the Unidisclosed Podcast that will air later this week and contain further analysis of the issue.



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I am very pleased with this development, as I believe the Serial and Undisclosed podcasts have convincingly shown that justice was not done at Adnan's trial. That said, injustice in this context only means that Adnan should have been found not guilty on the State's theory and evidence. That is, it doesn't necessarily mean that he is innocent in the sense that he did not kill Hae-min. I would like to believe that he is innocent in this sense, but I confess I am not sure. In this regard, the analysis at the Reddit link below, on its face, seems to present a plausible scenario under which Adnan did kill Hae-min. I realize the focus of the Undisclosed team is on the State's case as presented at the trial, and not on any alternative theories. Nonetheless, I cannot help wondering what the team, with all its collective knowledge about the case, thinks of this theory. I will understand if you don't wish to expend any time and energy on this kind of question, but would obviously be grateful to have your view.

Posted by: Acacie | May 19, 2015 7:47:20 AM

Colin, your opinion please. If the motion to reopen is granted, what is the likelihood that based on Asia's affidavit and testimony that Judge Welch (or other judge if Judge Welch is unavailable) would reverse his prior PCR ruling? If the ruling is reversed would the state be able to appeal that decision? Do you think it's likely that Kathleen Murphy would again appear for the state? Thanks for all your efforts on this case!

Posted by: thanksformutton | May 19, 2015 9:49:33 AM

Colin, in your opinion, if the affidavit and testimony are allowed in do you envision any scenario in which the PCR ruling would NOT be reversed? If the ruling is reversed will the state have the opportunity to appeal that decision? Thank you so much for all your work on this case!

Posted by: thanksformutton | May 19, 2015 10:06:17 AM

thanksformutton: I think that if Asia gives testimony consistent with seeing Adnan in the library on 1/13/1999, there's a very good chance that Adnan will be given relief by the Circuit Court or the Court of Special Appeals of Maryland. Ultimately, I think the losing party will take the case all the way up to the Court of Appeals of Maryland.

I think Adnan's case has been turned over to the State AG's Office, so I don't know whether Murphy will be on the case any more.

Posted by: Colin Miller | May 19, 2015 10:35:03 AM

I understand why you might expect the State would take the case to the COA, because it’s a prudent assumption, but how likely is it to actually do so? As you’ve pointed out, there is a substantial body of good law that supports the IAC claim and little, if anything, to oppose it. Assuming that Asia’s affidavit is allowed and/or she testifies and is a credible witness, on what basis would the State appeal? And ultimately, what would it gain, apart from a lot of bad publicity associated with continuing to incarcerate someone who was convicted on the basis of now largely disproven evidence and testimony?

Posted by: streetwriter | May 19, 2015 10:57:39 AM

streetwriter: The State wants to avoid a bad precedent being set that makes it easier for defendants to prove IAC claims.

Posted by: Colin Miller | May 19, 2015 12:16:07 PM

“The State wants to avoid a bad precedent being set that makes it easier for defendants to prove IAC claims."

I’d like to hear you elaborate on that sometime. With all the cases you’ve cited, isn’t precedent already established? By “bad” do you mean “additional”? What about serving justice?

Moreover, proving IAC in this case has been anything but easy, despite the arguments that make it seem a no-brainer. I wonder if the case would be where it is today without all the publicity around it.

Posted by: streetwriter | May 19, 2015 12:28:10 PM

streetwriter: Maryland has never had an IAC case with a deceased attorney, as far as I can tell. A win by Adnan would create that precedent. A win by Adnan would also involve issues based upon the conduct of Urick, which I'm sure the State wants to avoid.

Posted by: Colin Miller | May 19, 2015 12:40:01 PM

So ... never mind IAC if the responsible attorney goes and dies, and let's protect possible prosecutorial misconduct at the expense of justice. Got it. (Yeesh.)

Posted by: streetwriter | May 19, 2015 12:43:21 PM

This decision has seemingly greatly elongated the timeline for Adnan (by delaying some relief based on the plea issue) while the Asia stuff if sorted out, for which the best case for Adnan involves quite a lengthy track to a new trial.

Because of this will he then be pursuing the DNA evidence to help exonerate him? If not, why? What exactly is the legal issue in support of not analyzing the DNA?

Posted by: monstimal | May 19, 2015 3:39:47 PM

monstimal: A defendant can bring "new" claims in conjunction with a motion for DNA testing. See, e.g.,


New information is continually being found (e.g., the tapping) while other information might pan out (e.g., "Takera" and "Ann"). It makes sense to wait to file for DNA testing until there is more evidence on some of these other claims, which might also bolster the motion for DNA testing (if, for instance, evidence of a new suspect emerges).

Posted by: Colin Miller | May 20, 2015 6:35:26 AM

"It makes sense to wait to file for DNA testing until there is more evidence on some of these other claims"

I'm not following that. What is the downside to testing for DNA right now?

Posted by: monstimal | May 20, 2015 9:20:22 AM

monstimal: Let's assume that "Takera" was contacted by police and/or that "Ann" remembers giving an exculpatory statement to police that was never disclosed. It make sense to make all of these claims as part of the DNA petition as opposed to filing the DNA petition now and trying to bring a third petition if the current petition and the DNA petition fail.

Posted by: Colin Miller | May 20, 2015 9:40:24 AM

for monstimal re: why not use DNA. A recent example can be seen in one of the cold cases featured on the show Cold Justice, "Mother Daughter Tragedy" where the DNA was sent in and found to be so contaminated that it not only could not be used to solve the case, but created obstacles to prosecution as it made it hard to rule out anyone. Indeed, they state that although the circumstantial evidence was good, the physical evidence made it possible for a good defense lawyer to create reasonable doubt.

Posted by: C Noir | May 20, 2015 11:13:56 AM

@ C Noir.
If that is the case then why does the Innocence Project bother doing their work? The best approach the Innocence Project take to be able to overturn a conviction is by DNA testing. I don't buy what you are saying. We are talking about someone who has been in prison for 15 years. You simply would not wait and you would test straight away. The Innocence wanted to move with testing the DNA months ago but Adnan and his team don't want to proceed. Hmmm, I wonder why. I wonder why Adnan never remembered much of his day either. Just a normal day to him. A ‘normal’ day where your ex girlfriend goes missing and you get a call from her family, then you get a call from the police – that is not a normal day. It wouldn’t be hard to trace your steps either when you have all the cell phone data to help you remember your day. Adnan should never have been convicted with the evidence that was put forward, but his innocence is another thing. The cops and the prosecution are the ones to blame for not putting at least a couple of people away.

Posted by: Ben | May 20, 2015 11:24:18 PM

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