A Preview of Adnan's Reopened Postconviction Review Proceedings

This post is about the reopened postconviction review proceedings in the Adnan Syed case, which will be held on February 3rd, 4th, and 5th.

1. How did we get here?

On May 28, 2010, Adnan filed a Petition for Postconviction Relief (PCR) with the Baltimore City Circuit Court. The petition asserted several claims, including the claims that Adnan received ineffective assistance of counsel (IAC) based upon his trial attorney's failure to (1) ask about a plea deal; and (2) contact prospective alibi witness Asia McClain.

Judge Martin Welch held the hearing on Adnan's petition on October 25, 2012; Asia did not appear at the hearing. On January 6, 2014, Judge Welch issued his ruling, denying Adnan relief. With regard to the IAC/Asia claim, Judge Welch denied relief on two grounds:

Firstly, the letters sent from Ms. McClain to Petitioner do not clearly show Ms McClean's potential to provide a reliable alibi from Petitioner....

Secondly, the information in Ms. McClain's letters stating that petitioner was present at the public library contradicted Petitioner's own version of events, namely Petitioner's own stated alibi that he remained on the school campus from 2:15 to 3:30 p.m.

On January 27, 2014, Adnan filed an Application for Leave to Appeal to the Court of Special Appeals of Maryland. In response, on September 10, 2014, the Court of Special Appeals ordered the State to respond to the portion of Adnan's Application for Leave to Appeal claiming that he received the ineffective assistance of counsel based upon his attorney's failure to inquire into a plea deal. Then, on January 20, 2015 Adnan filed a Supplement to Application for Leave to Appeal the Denial of Post-Conviction Relief and Request for Remand based upon a new affidavit by Asia McClain about her conversation with Kevin Urick and its effect on her decision not to attend Adnan's prior hearing.

On February 6, 2015: The Court of Special Appeals of Maryland granted Adnan's Application for Leave to Appeal. Thereafter, on May 18, 2015, the Court of Special Appeals granted Adnan's motion for remand so that Adnan could file a motion to reopen his postconviction proceedings with the Baltimore City Circuit Court so that evidence such as Asia's new affidavit and testimony could be received.

On June 30, 2015, Adnan filed his motion to reopen; on August 24, 2015, Adnan filed a Supplement to his motion to reopen, asking that Judge Welch also hear that argument that his trial counsel was ineffective based on her failure to use the AT&T disclaimer to argue that cell tower pings on incoming calls were unreliable and/or inadmissible. On September 23, 2015, the State filed its response, in which it claimed, inter alia, that the cell tower exhibit admitted at trial was not a Subscriber Activity Report and therefore not governed by the AT&T disclaimer.

On October 13, 2015, Adnan filed his reply to the State's response, claiming, inter alia, that the cell tower exhibit from trial was a Subscriber Activity Report, but with the page identifying it as such not included in the trial exhibit. As such, Adnan claimed that the State's failure to disclose that the exhibit was a Subscriber Activity Report was a Brady violation. On November 6, 2015, Judge Welch granted Adnan's motion to reopen with regard to both the IAC and Brady claims.

2. The Legal Standards

Ineffective Assistance of Counsel

Pursuant to the Supreme Court's opinion in Strickland v. Washington, a defendant proves an IAC claim by establishing (1) that counsel’s performance "fell below an objective standard of reasonableness" as measured by "prevailing professional norms;" and (2) prejudice, i.e., "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

Under the first prong, courts across the country, including Maryland's highest court and a federal appellate court reviewing a case emanating from the Baltimore City Circuit Court, have concluded that failure to contact an alibi witness is unreasonable. That said, in Veney v. Warden, 271 A.2d 133 (Md. 1970), the Court of Appeals of Maryland found that a defendant can't prove an IAC/alibi claim unless the prospective alibi witness takes the stand and testifies. The State argued Veney at Adnan's initial PCR hearing, and Judge Welch cited it in his initial ruling. 

Under the second prong, courts use a time capsule approach, considering the alibi witness's testimony against the evidence and testimony presented at trial, not anything new that has been reported (e.g., Jay's Intercept interview, the discovery that Woodlawn didn't have a wrestling match on January 13th, etc.).

When an uncontacted alibi witness provides credible testimony that she saw the defendant at the same time that the State claims the crime was being committed, the judge will find that the second prong is satisfied. Perhaps recognizing this fact, the State has argued that it just as easily could have claimed that the 3:15 P.M. call on Adnan's call log was the Best Buy call as opposed to the 2:36 P.M. call. The seeming problem with this argument is that the Court of Appeals of Maryland recognized in In re Parris W. that a "flexible" state timeline makes it easier for the defendant to prove the second prong of IAC:

Given the distance between Ms. Cary's home and the place where [the victim] was assaulted, and given the uncertainty surrounding the time of the assault, Ms. Cary's testimony alone may have been enough to create reasonable doubt in the mind of the hearing judge had she been available to testify. (emphasis added).

Brady v. Maryland

In Brady v. Maryland, the Supreme Court declared that the State has an affirmative obligation under the Due Process Clause to disclose material exculpatory evidence to the defense. Evidence is "material" when there is a reasonable probability that its proper disclosure would have led to a different outcome at trial. This doesn't mean that it has to be "more likely" than not that the result would have been different; the evidence simply needs to be sufficient to undermine our confidence in the jury's verdict.

Under Brady, it doesn't matter whether the evidence was withheld in bad or good faith. Furthermore, pursuant to the opinion of the Court of Appeals of Maryland in Ware v. State, 702 A.2d 699 (Md. 1997),

"When the prosecutor receives a specific and relevant request," the Supreme Court noted in Agurs..., "the failure to make any response is seldom, if ever, excusable." If the failure to make any response is rarely excusable, then certainly a misleading response is seldom, if ever, excusable as well. (emphasis added).

Therefore, even though the State did turn over the AT&T disclaimer to the defense, it could have violated Brady if it was unclear that the disclaimer applied to the cell tower exhibit introduced at trial.

In Ware, the Court of Appeals of Maryland also held that "the 'likely damage' of the State's suppression of evidence...'is best understood by taking the word of the prosecutor...during closing argument.'" Therefore, in assessing materiality/prejudice under Ware*, Judge Welch will primarily be looking at how the State used the cell tower pings during closing arguments at Adnan's trial.

3. New Evidence We Already Have

Judge Welch ostensibly used Adnan's alibi notice to initially conclude that Asia's library alibi conflicted with Adnan's own story that he remained on the school campus until the start of track practice. In addition to the State's own admission that it only used the alibi notice to prove the depth of the defense investigation, Adnan has submitted two [affidavits] alibis. In one, an attorney who worked with Gutierrez indicates that the alibi notice should not be taken as evidence of Adnan's version of events or as evidence that Gutierrez made a strategic decision against contacting Asia McClain. In a second, Krista, a good friend of Hae and Adnan as well as a State's witness at trial, indicates that students considered the Woodlawn Public Library part of the school campus.

With regard to the cell tower evidence, Abraham Waranowitz, the State's cell expert at trial, has submitted an affidavit indicating that he was unaware of the AT&T disclaimer and that knowledge of the disclaimer would have affected his testimony because he would have needed to ascertain the reasons and details for the disclaimer before testifying. Furthermore, Gerald R. Grant Jr. submitted an affidavit indicating that he is a cell tower expert, that the disclaimer is what we think it is, and that he is willing to testify about the meaning of that disclaimer.

4. What to Expect

I assume that one of the three days will focus on IAC/Asia. The direct and cross-eximanations of Asia will seemingly focus on two questions: (1) How sure is she that she saw Adnan on January 13, 1999; and (2) how sure is she that she saw Adnan until 2:40 P.M. or at least for an extended period of time? Given that Becky and Inez both testified that they saw Hae leaving school in a hurry between 2:15 and 2:20 P.M., the answer to question (1) is seemingly more important than the answer to question (2).

The big question is whether the State will call Urick and whether both witnesses will delve into their phone call. I would guess that the State will call Urick because they have to try to use Asia's decision not to appear at the initial PCR hearing against her. If Urick is called, the question is whether Judge Welch will (1) find Asia more credible; (2) find Urick more credible; or (3) think that there was simply a miscommunication and no bad faith by Urick or Asia. I'm guessing that the answer will be (3).

Of course, there's a big risk in calling Urick. If the State calls him, defense counsel can cross-examine him on subjects such as his statement to The Intercept about both the cell tower pings and Jay's testimony being necessary to prove guilty beyond a reasonable doubt. Defense counsel could also try to cross-examine him about some of the subjects we've raised on Undisclosed.

I assume that the State will also try to call an attorney to testify that the decision not to contact Asia could have been reasonable. Given that the legal precedent seems to refute this notion, it will be interesting to see whether the State can find a Maryland criminal defense attorney to provide such testimony. 

I assume that another of the three days will focus on the cell tower evidence. Ostensibly, the State will call a cell tower expert to claim that the AT&T disclaimer was boilerplate and that the language about incoming calls being unreliable for determining location doesn't mean what we think it means. Presumably, Grant will provide contradictory testimony for the defense. The big question for me is whether the State's expert will be able to explain away things such as check-in lag and the AT&T quirk with incoming calls sometimes pinging the tower of the caller. If not, the defense would seem to have a pretty strong case.**

Will either of these subjects take up more than a day's worth of hearings? If not, who might be additional witnesses? I think there's a decent chance that the State calls MacGillivray and/or Ritz to discuss the investigation and preparation of the case. As with Urick, this would set the stage for some interesting cross-examination(s).

Will the State or defense call any of Gutierrez's former associates or clerks? I don't think so. The clerk who wrote the Asia note authenticated the note but seemingly has no recollection of what was done with it. And I'm assuming we would have heard something if anyone else at the firm remembered anything about Asia, one way or the other.

5. Prediction

I've written before that I think Adnan will be given a new trial if Asia testifies consistent with seeing Adnan at the library on January 13th. After she testifies on direct and cross, we should have a better sense of how the judge will view her testimony. I've also argued that I think Adnan's Brady/cell tower claim has a good chance at success, but that's without hearing anything in the way of a response from the State. In other words, it's tough to say anything at this point until all of the evidence and testimony has been presented.

One way or the other, we will likely have to wait weeks or months for Judge Welch's opinion. Thereafter, there will be an appeal to the Court of Special Appeals, followed by an appeal to the Court of Appeals (Maryland's highest court).

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*Ware also held that "the fact that the defendant made a specific request" for Brady material, plays into the prejudice analysis, and Gutierrez did make a specific and detailed request for Brady material related to the cell tower evidence.

**Part of Judge Welch's analysis will consist of determining whether Gutierrez could have used the AT&T disclaimer to have the incoming pings deemed inadmissible under Maryland's   Frye test, which looks at whether the technique or technology has general acceptance in the relevant expert community.

-CM