EvidenceProf Blog

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

Tuesday, June 30, 2015

A Quick Thought on Adnan Syed's Motion to Reopen

Today, Adnan Syed filed his Motion to Re-Open Postconviction Proceedings. As should be clear to the readers of this blog, I agree with many of the arguments made in the motion:

-It is "in the interests of justice" to reopen based upon Campbell v. State, 376 A.2d 866 (Md.App. 1977) (prosecutor dissuaded a witness from testifying) (blog post);

-It is "in the interests of justice" to reopen based upon Curry v. State, 458 A.2d 474 (Md.App. 1983) (prosecutor misstated facts to the court) (blog post);

-The statements made by prosecutor Kevin Urick to The Intercept could be used by the defense (blog post); and

-Precedent from across the county (including Maryland and the Fourth Circuit) supports the proposition that trial counsel is ineffective if she fails to contact prospective alibi witnesses ((blog post).

In this post, though, I wanted to highlight one other interesting part of the Motion.

As I noted in the Explainer episode of the Undisclosed Podcast, the "interests of justice" standard that the Circuit Court will use to decide whether to reopen Adnan's postconviction proceeding is the same standard that the Court of Special Appeals used to remand Adnan's case to the Circuit Court. As such, the law of the case doctrine arguably applies.

As Adnan's attorney -- Justin Brown -- notes in the Motion to Re-Open, "[t]he law of the case doctrine states that a trial court must follow an appellate judgment and cannot allow re-litigation of a matter already resolved by the appellate court." It can be argued that the Court of Special Appeals has already resolved the issue of whether it is "in the interests of justice" to reopen. As is noted in the Motion to Re-Open:

Screen Shot 2015-06-30 at 3.50.01 PM 

I will be very interested to see what arguments the State makes, and what precedent, if any, it cites in opposition to the arguments made in the Motion to Re-Open.



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It seems like the State will simply reiterate that Asia's testimony is not/would not be as important to Adnan's case as we believe. It seems like they're willing to shift the timeline based off of Asia's testimony, which seems ludicrous given the medical evidence and Adnan's alibis in track, the mosque, etc. This case continues to baffle me (or rather, the State's continually weak arguments).

Posted by: sara | Jun 30, 2015 1:33:49 PM

What is the timeline going forward?

Posted by: Adam E | Jun 30, 2015 1:49:33 PM

How much time does the State have to respond? I don't think that was specified in the COSA's remand order. Or is it specified in a Maryland rule of procedure?

Posted by: streetwriter | Jun 30, 2015 2:26:38 PM

I was so excited to see this motion today and was honestly surprised to hear how much Brown impugned Urick. Question for you, Professor: were you surprised to see this or did you expect it to be a significant part of the motion? Seemed that the failure of CG to contact Asia based on Asia's affidavit was all the COSA needed to recommend remand. Great post as usual!

Posted by: janet | Jun 30, 2015 2:30:24 PM

This was the least persuasive part of the brief for me. I think it can be in the interests of justice to *consider* whether the record should be reopened without conclusively deciding that it *is* in the interests of justice that it in fact be reopened. It's more worthy of the footnote than the leading argument, since I view it as something of a hail mary pass. But I am hopeful that the rest of the compelling arguments made in the motion carry the day.

Posted by: RR | Jun 30, 2015 3:31:24 PM

sara: Yes, one of the State’s arguments is that they could have changed their timeline at trial if Asia testified. In my opinion, that just shows the weakness of the State’s case.

Adam E & streetwriter: The court will presumably give the State a timeline to reply (30 days? 45?). We’re in uncharted territory.

Janet: I’m not surprised about the focus on Urick He’s at the center of the “interest of justice” argument.

RR: This is the first case where there was such a remand. It's completely up to the court how to interpret the standard.

Posted by: Colin Miller | Jun 30, 2015 3:38:37 PM

I think I have read that Asia kept notes from her telephone conversation with Urick. I was surprised not to see them in the exhibit list for that would have supported her assertion. I wonder if the notes really exist?

Posted by: S | Jun 30, 2015 7:44:13 PM

I can’t agree on the law of the case argument. It is counterintuitive that the Court of Special Appeals would remand to the lower court to decide the issue of whether post-conviction proceedings should be re-opened, if they in fact had already resolved that question. The CSA specifically noted that “because [Asia’s affidavit] was not presented to the circuit court during Syed’s post-conviction proceedings, as it did not then exist, it is not a part of the record and, therefore, this Court may not properly consider it in addressing the merits of this appeal.” Remand Order at 4. While remand was in the interests of justice in part to “afford the parties the opportunity to supplement the record with relevant documents and even testimony,” the circuit court’s task is to actually consider the affidavit itself, among other evidence, and determine whether further proceedings are needed. Id. Considering whether the affidavit, etc. warrants re-opening is very different from considering whether, as the CSA did, there is a significant possibility that the affidavit, if it were evaluated, would warrant re-opening.

It’s as though a court of appeals, addressing a Brady violation, remanded to the lower court to address whether withheld evidence was material after deciding that the defendant had sufficiently raised a possibility that it might be material; the defendant-appellant could not then argue that, because materiality only requires a reasonable probability of changing the outcome, the appeals court had already decided the issue. The first court only decided that there is a reasonable probability of a reasonable probability of changing the outcome. The standard for the court on remand would be an order of magnitude greater. In Adnan’s case, the CSA decided that it is in the interests of justice to further determine if it is in the interests of justice to re-open. The two “interests of justice” standards, while related, are in no way the same. Adnan’s brief attempts to skip a fundamental step, assuming what it is required to prove.

All that being said, I do agree that in other ways the Motion raises some very strong points.

Posted by: Josh | Jul 1, 2015 6:46:20 AM

So the state is arguing that it could have presented a different timeline of the murder at trial had Asia testified? If so, which witnesses are they prepared to say perjured themselves? Jay, who says he got the "she's dead, come and get me" call at 2:36, or a handful of others who testified that Hae (and Adnan) were still on campus at school at least until it let out at 2:15? I guess they could argue that Jay was misremembering the time of the "come get me" call, but as detailed on Serial this would leave huge holes in the rest of his testimony about what happened after that call.

Posted by: Dan | Jul 1, 2015 7:28:23 AM

S: It’s in her affidavit, so I’m betting she has the notes.

Josh: It’s definitely ambiguous. At some points, the Court of Special Appeals seems to say it’s remanding so that the Circuit Court can decide whether to reopen. At other points, however, the Court of Special Appeals seems to say it’s remanding so that additional evidence can be presented.

Dan: There are a number of roadblocks to the 3:15 call working. The biggest seems to be Inez’s detailed testimony about Hae leaving school in a hurry between 2:15 and 2:20. That testimony, in and of itself, would seem to create reasonable doubt if Asia testified that she saw Adnan until 2:40.

Posted by: Colin Miller | Jul 1, 2015 8:00:01 AM

You might be right that she does indeed have notes. But do you know if somebody has actually seen them?

Posted by: S | Jul 1, 2015 12:05:36 PM

Excellent work. But I know nothing of the legal world. So I have a simple question:
It seems that every day you uncover more problems with this case.
Is it because you are doing excellent work, above and betond the call of duty, or should every defendant expect this level of effort?
CG's effort makes me question the criminal justice system.
If I pay a lawyet 100k to defend me, should I expect my lawyer to sniff around every corner, or is the work CG did for Adnan par for the course?

Thanks. I would say keep up the good work, but I dont see any reason to beat a dead horse. The States case is dead and buried.

Posted by: anon | Jul 1, 2015 5:02:33 PM

Jay never says the 2:36 call was the "come get me" call. One of the few (perhaps the only) point on which he's been consistent throughout is that the "come get me" call came after 3:30-3:40. As there's no call to the cell during this timeframe, it's not corroborated by anything except, tangentially, by Jen in her insisting Jay left her house around that time before getting any such call.

Urick's claim that the 2:36 call during closing arguments wasn't supported by any evidence at all. There isn't any foundation for that claim, but for whatever reason that wasn't challenged.

Posted by: bacchys | Jul 2, 2015 2:29:24 PM

Professor Miller,
I just wanted to say thank you to you and everyone at Undisclosed for pouring your hearts and souls into this case.

As I was reading through the appeal documents:
Why wasn't the taps that were heard upon Jay's recorded interviews mentioned? Wouldn't this also qualify under the "Interest of Justice" standard? Or would this be considered evidence rather than the legal statute?

Could the fact that Ms. Susan asked Undisclosed's sound producer to clean up the audio be objected upon cross-examination?
(I am not sure if this could be considered "tampering" by in the prosecutions eyes - not that they should talk [i.e.,-the seal being broken on what DNA evidence there was/is among other things]...Just something to look out for).

Thanks for taking the time to answer.
Keep up the great work everyone!

Posted by: Amanda | Jul 5, 2015 8:00:53 PM

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