EvidenceProf Blog

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

Wednesday, December 16, 2015

A Quick Discussion of the Scheduling of Adnan's Reopened Postconviction Proceedings

Yesterday, Judge Martin Welch scheduled the post-conviction proceedings in the Adnan Syed case. Here is a copy of the order. You can replace most of the "2015"s in the order with "2016"s. First, there will be a status conference on January 12, 2016, during which both sides will likely inform Judge Welch of how everything is proceeding, whether there are any issues with witnesses, etc. Then, the actual proceedings will be held on two days: (1) Friday, February 5, 2016; and (2) Monday, February 8, 2016. As Adnan's attorney tweeted, "Maryland has a law that prohibits the broadcasting of court proceedings. No cameras allowed." As Rabia tweeted, "Adnan will be present at the hearing." Rabia and Susan will also likely be there. I will not.

Pursuant to the order, (1) Adnan has to provide the names of expert and fact witnesses he intends to call, a summary of their testimony, and the written statements of any fact witnesses that relate to the subject matter of their testimony no later than 45 days before the February 5th hearing date; and (2) the State has to provide the same no later than 30 days before the February 5th hearing date. This makes sense. Adnan is the moving party asking for relief, so the State is entitled to earlier disclosure of his witnesses so that it can decide who it wants to call to try and rebut their claims. In any event, these disclosures will take place pretty quickly.

As you might recall, there are two issues that Judge Welch is considering: (1) Did Adnan receive the ineffective assistance of counsel based upon Cristina Gutierrez's failure to contact potential alibi witness Asia McClain; and (2) Did the State violate Brady by misleading the defense and its own expert witness about Exhibit 31, the cell tower exhibit. If Judge Welch finds in Adnan's favor on both either of these issues, he will order a new trial, and the State will almost certainly appeal. If Judge Welch finds in Adnan's the State's favor on either both of these issues, he will not order a new trial, and Adnan will almost certainly appeal. In either event, the Court of Special Appeals will likely consider both of these issues as well as the issue that is currently still parked with the appellate court: whether Gutierrez was ineffective in failing to ask about a plea deal. And then, whatever the court decides, the losing party will almost certainly appeal to the Court of Appeals of Maryland, which will likely have a final word.

That endgame is still far off on the horizon, but the start of this process is now less than two months away.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/12/yesterday-judge-martin-welch-scheduled-the-post-conviction-proceedings-in-the-adnan-syed-case-here-is-a-copy-of-the-order.html

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Comments

If the judge found in Adnan's favor and the state appealed, would there be a bail hearing while awaiting appeal and/or new trial? Or is this unheard of for someone who has actually been convicted?

Posted by: Sassy | Dec 16, 2015 9:50:39 AM

Further to Sassy's question, if Adnan can apply for bail but it's denied, would there be an option of moving to a more local prison whilst he awaits the outcome of all the appeals?

Posted by: Cupcake | Dec 16, 2015 11:08:33 AM

No Brady violation claims for Crimestopper revelations?

Posted by: OMC | Dec 16, 2015 11:46:35 AM

Is there any way to convince the State not to appeal if they lose this round? Public pressure? Is there any history of anything like that being done?

Posted by: Eric Wolff | Dec 16, 2015 11:51:18 AM

Let's say that the judge rules in favor of Adnan's claim and grants him a new trial. Would there be any implications to a ruling based on IAC versus based on a Brady violation?

Posted by: Michael | Dec 16, 2015 12:35:54 PM

Why did the court of special appeals kick it back if the likely result was an appeal of the decision made which they then would have to rule on themselves?

Posted by: Robert Kirkpatrick | Dec 16, 2015 2:41:09 PM

There is a typo in the sentence: *If Judge Welch finds in the State's favor on either of these issues,*
That *either* should be *both*.

Posted by: S | Dec 16, 2015 2:54:25 PM

Thanks for this update! I was just about to ask about scheduling issues. Is there a reason you've decided not to attend?

Posted by: RR | Dec 16, 2015 3:03:53 PM

Sassy: There would be a bail hearing if Judge Welch grants Adnan a new trial.

Cupcake: I don’t know about that.

OMC: We’re working on it, but there has been no disclosure yet.

Eric: Yes. There are cases in which the State doesn’t appeal and other cases in which they actually support the defendant’s petition.

Michael: If Adnan wins on Brady, it makes it easier for him to get money from the State.

Robert: The COSA can’t take new factual evidence, like Asia’s testimony.

S: Thanks.

RR: Classes.

Posted by: Colin | Dec 16, 2015 6:56:35 PM

amazing job! to you rabia , susan and justin brown, his attorney. God willing you will prevail!

Posted by: Toni | Dec 16, 2015 8:04:02 PM

Wait, the state has to lose on BOTH issues for a new trial to be the result? And the state needs only 1 of the 2 issues for the PCR to be denied?

I think it was correct before the correction. At least, I hope it was...

Posted by: Paul | Dec 16, 2015 9:26:35 PM

"If Adnan wins on Brady, it makes it easier for him to get money from the State."

That's what I thought. So, is this kind of deal possible:

Adnan withdraws his Brady claim in exchange for state joining his IAC claim. Judge orders a new trial, Adnan goes free with no state appeal but doesn't try for money from the state. That seems like a better deal for him than an Alford plea (which I assume would also stop him from getting money from the state).

Posted by: Michael | Dec 17, 2015 3:54:56 AM

Is the "bombshell info" that can't be told on the podcast relevant in the February hearings or in the actual re-trial, should that take place? Also, if Adnan is granted a re-trial, how long does that process take, especially if the State decides to appeal?

Posted by: Mel | Dec 17, 2015 8:03:01 AM

Why is it "both" and not "either?" A new trial is only ordered if the judge finds in favor of both claims? (and vice versa if they find in favor of the state, it has to be on both counts?) Why not either?

Posted by: KC | Dec 17, 2015 8:54:43 AM

Toni: Thanks.

Paul and KC: It looks like I had edited the wrong thing(s). I think that everything is correct now. Adnan only needs to win on 1 of these issues to get a new trial. The State needs to win on both issues for the court to deny Adnan a new trial.

Michael: That’s a possibility, but I don’t see the State doing it.

Mel: The bombshell information might come out at the reopened PCR hearing, but it also might be beyond its scope. If there’s a new trial, it would definitely come up. I imagine a re-trial would take quite some time based on the passage of time, the moving of witnesses, etc.

Posted by: Colin | Dec 18, 2015 7:02:53 AM

Will the witness lists provided first by Adnan and then by the State be made public?

Posted by: Michael | Dec 18, 2015 2:15:46 PM

Colin, thanks for all your incredible work--same to Susan and Rabia.

If the outcome of the February hearing is that a new trial is ordered and the state does not appeal, i.e., Adnan is freed, can the bombshell evidence be made public? Or would there be reasons to not make it public, and if so what are those?

Posted by: Erin | Dec 22, 2015 11:14:49 AM

What is this "bombshell" of which you are speaking?

Posted by: Beth | Dec 23, 2015 6:18:01 PM

Is there an alter time to an Alford Plea for Adnan which does not state prosecution has enough evidence to convict - a way to set Adnan free?

Posted by: Judith Roth | Dec 30, 2015 7:54:26 AM

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