EvidenceProf Blog

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

Thursday, June 30, 2016

A Quick Take on Judge Welch's Opinion Granting Adnan Syed a New Trial

Today, Judge Martin Welch granted Adnan a new trial. Judge Welch reached this conclusion by finding that "trial counsel's...failure to challenge the reliability of the cell tower location evidence violated [Adnan]'s right to effective assistance of counsel[.]" This alone was enough to grant Adnan a new trial.

Judge Welch also found that trial counsel acted unreasonably by failing to contact prospective alibi witness Asia McClain, thus satisfying the first prong of the ineffective assistance of counsel test. That said, Judge Welch found that Adnan failed to prove prejudice, i.e., that contacting Asia would have created the reasonable probability of a different outcome at trial.

I will have much more about Judge Welch's opinion in future posts, but I wanted to shoot out a quick post about this last conclusion because there's a recent Supreme Court opinion that seems directly on point.

Back in March, I did a post about the Supreme Court's new opinion in Wearry v. Cainwhich was about the the intersection among shaky State's witnesses, an alibi, and prejudice. You can read the facts of the case in my prior post, and here is the key quote:

The State’s trial evidence resembles a house of cards, built on the jury crediting Scott’s account rather than Wearry’s alibi....The dissent asserts that, apart from the testimony of Scott and Brown, there was independent evidence pointing to Wearry as the murderer....But all of the evidence the dissent cites suggests, at most, that someone in Wearry’s group of friends may have committed the crime, and that Wearry may have been involved in events related to the murder after it occurred. Perhaps, on the basis of this evidence, Louisiana might have charged Wearry as an accessory after the fact....But Louisiana instead charged Wearry with capital murder, and the only evidence directly tying him to that crime was Scott’s dubious testimony, corroborated by the similarly suspect testimony of Brown.

Now, let's take a look at why Judge Welch concluded that Adnan was not prejudiced by trial counsel's failure to contact Asia McClain:

Screen Shot 2016-06-30 at 8.27.15 PM

Screen Shot 2016-06-30 at 8.28.33 PM

In other words, while Asia would have hurt the State's case, she wouldn't have severed the crucial link among (1) Jay's testimony about receiving 2 calls at about 7:00 P.M. while Adnan and he buried Hae's body in Leakin Park; (2) the incoming calls to Adnan's cell phone and 7:09 and 7:16 P.M. that pinged tower L689B; and (3) Hae's body being found in Leakin Park.

As Wearry notes, however, this nexus, even if accurate, would merely tend to establish that Adnan was involved in Hae's burial. This would perhaps be sufficient to support an accessory after the fact conviction but not a murder conviction.

It's unsurprising that Judge Welch didn't cite to Wearry and seemingly reached a conclusion that contradicts its reasoning. Wearry was handed down after the reopened PCR proceeding, so it wasn't briefed or argued. But if the State appeals the cell tower ruling, you can bet that Justin Brown will cross-appeal on the Asia/ineffective assistance of counsel claim and cite to Wearry on this issue. 

Of course, it's entirely possible that the State doesn't appeal Judge Welch's opinion. It's extremely well researched and written as well as filled with citations to pertinent caselaw. And now, the Supreme Court has given Justin Brown one more vital piece of caselaw that could be used in the event of an appeal.



| Permalink


And how terrifying is it that the unrebutted evidence of Urick's misconduct was apparently no big deal??!!

Posted by: Jonathan | Jun 30, 2016 5:47:27 PM

You really think the State might not appeal? I am clearly no expert, I just assumed that an appeal was basically automatic for either side, regardless of who won?

Posted by: Sassy | Jun 30, 2016 6:11:45 PM

Thanks Colin - I had the exact same reaction as I was reading Judge Welch's opinion: that the nexus he points to is only relevant to the burial and not the murder. Nice to know that Wearry was handed down to further the point. Great work by you, Rabia and Susan (and, of course, Justin) in contributing to the decision today!

Posted by: FormerAgent | Jun 30, 2016 6:11:45 PM


Posted by: Anna | Jun 30, 2016 6:18:13 PM

The jury was presented with a terrible witness in Jay, but probably couldn't understand why he would lie to implicate someone else. They also had cell phone records that they believed to corroborate time/place/witness. But, without Jay, there's really nothing. If you can tear apart some of Jay's testimony, surely there's the possibility that someone on that jury decides that Jay has been shown to be too much of a liar to believe. Without Jay, (even if they believed incoming calls to be accurat-ish), Adnan could just be a guy who went on a drive.

Posted by: Duane | Jun 30, 2016 6:29:47 PM

The quote you used showed that even the judge is still unclear about how the cell-towers work. INCOMING CALLS ARE UNRELIABLE FOR LOCATION. The CALLER to Adnan's phone could have been in the Leakin Park Area and not Adnan's phone. lol wow. I wish the Judge had allowed Waranowitsz to testify

Posted by: Silivren | Jun 30, 2016 6:42:39 PM

I'm glad you flagged that issue Colin because it puzzled me too. According to the judge the key to the case was the nexus between the testimony and the scientific evidence. But if EITHER of those things are fall apart then so too does the nexus. The judge says that the her testimony cannot sever the link but that is manifestly untrue. It is untrue because at that point in time it is her word against Jay's word and findings of credibility are always for the jury. So all her testimony has to do is create "reasonable doubt" that Jay's testimony is untrue. And what the judge should have decided is whether there it was probable (a very weak standard) that her testimony could do that.

To me, Judge Welch stepped in did the jury's job for it. That is error.

Posted by: Daniel | Jun 30, 2016 6:47:34 PM

That second prong is horrifying, as is Welch's reasoning regarding it.

Posted by: carnotbrown | Jun 30, 2016 7:07:42 PM

Is footnote 9 in the ruling a warning to the State that they have a real problem if they retry their case? Would love a post about this footnote - the judge points out the evidence that destroys the state's timeline and then explicitly rejects their efforts to move the timeline. Why go through telling the state you aren't going to let them move their impossible timeline if not as a warning to the state to be careful about retrying this weak case?

Posted by: stoshb | Jun 30, 2016 7:10:30 PM

Can he ask for a bail hearing now or does he have to wait for the State's appeal?

Posted by: Narizarielka | Jun 30, 2016 7:15:56 PM

But I thought we proved she couldn't have been buried at 7 or 730, plus the phone wasn't necessarily near Leakin park since incoming calls are unreliable. I know that came out well after trial though.

Posted by: My real name is Cathy | Jun 30, 2016 7:30:57 PM

IF it does come to a retrial, I will be VERY eager to hear what Jay has to say with the perspective of time and maturity guiding his testimony.

Posted by: Anonynon | Jun 30, 2016 8:14:29 PM

The state would be crazy to appeal. The judge took obvious pains to save face for the SAO and appellate courts may not be so kind. The Baltimore city SAO has enough bad press to deal with these days. I don't know what pressure the office will receive from the victims family, and the victims rights groups, but my bet and hope would be they offer Alford plea for time served--or nolo, though almost no prosecutor will do a Nolo. The state does not want to try this again. Nor, I imagine, does Jay.

Posted by: SMP | Jun 30, 2016 9:17:42 PM

I agree with what the judge is saying. That had the jury heard Asia and Jay's testimony it would have been a he said, she said. So what's the tie breaker? The cell evidence that they were led to believe was accurate. So Jay and cell or just Asia. Also, up until all these wrongful convictions had come into the lime light a lot, if not most people, myself included, had no clue how many wrongfully convicted people are sitting in jail and had no idea that cops would be that corrupt. Kind of like most of Adnans classmates and teachers thought that they wouldn't charge him unless he was guilty. It seems like instead of voting not guilty because there's reasonable doubt, a lot of juries vote guilty because of unreasonable belief that it could have happened that way and why take the a chance of having a a guilty person go free. Hopefully that will start to change and a lot, if not most, people will vote guilty if the evidence  actually does prove guilt beyond a reasonable doubt. Last, as far as I remember the jury was not aware of the numerous times his story changed. They only heard the one he told at trial. I'm not certain on that though.

Posted by: Shelby George | Jun 30, 2016 9:23:38 PM


That glitch when an AT&T phone calls another AT&T phone and it shows the tower location from where the caller was only happens when the receivers phone is turned off. Adnan’s phone was turned on because he answered the call – it didn’t go to voicemail.

The faxcoversheet disclaimer was there because of a glitch in the system but only related to a receivers phone that was turned off.

I’m surprised the state didn’t prove this point at the hearing. They were very weak from what I can see.

Also the faxcoversheet disclaimer was removed by AT&T around 2 – 3 years after Adnan’s original trial. I’m surprised the state didn’t bring someone in to prove why they removed it.

Colin: Can the state now bring in new witnesses to prove this point at a COSA hearing?

Posted by: Ben | Jun 30, 2016 9:28:23 PM

Colin, can you address footnote 14 on page 32? Is the Judge saying that because the original Brady violation claim didn’t include information regarding truncated cell records, he’s unable to make a ruling on that presently? Is that something that may need to be addressed, or is it a moot point? Also, isn’t this sort of another example of Gutierrez’s ineffectiveness because she had this information and never made claims of a Brady violation? P.s. Congratulations to you, Rabia, and Susan! A major battle won. Best to you all as you forge ahead in the fight.

Posted by: Sarah Y | Jun 30, 2016 11:40:09 PM


Posted by: Beth Miller | Jul 1, 2016 2:42:06 AM

Does this mean the case is no longer closed at this point in time? Could they technically restart an investigation? Is there anything that could be done to hurry the restarting process along?

Posted by: Cupcake | Jul 1, 2016 3:40:15 AM

Jonathan: Any misconduct by Urick went toward reopening the PCR proceeding, not the merits of the appeal.

Sassy: I assume the State will appeal, but I don’t think it’s a certainty.

FormerAgent: Wearry is a big reason why the State might not appeal. I actually feel better about the Asia/IAC claim on appeal than the cell tower/IAC claim, even though Adnan won on the cell tower claim.

Anna: Thanks.

Duane: That would explain why the jury was leaning toward acquittal at trial 1, which basically featured the State’s case minus the cell tower evidence.

Silivren: I think the judge bifurcated the analysis. In other words, he was saying that, if the cell tower evidence was valid, Asia wasn’t enough. But because the cell tower evidence was bunk, that was enough.

Daniel: That seems to be the holding of Wearry as well (could not would).

carnotbrown: It’s weird because he cited a ton of caselaw on prong 1 of Strickland but not caselaw on prong two. Overall, this is a great opinion, but the prong 2 analysis is definitely susceptible to appeal, if necessary.

stsoshb: I read it the same way as you.

My real name is Cathy: This was a time capsule review based on the evidence at trial plus the cell tower evidence and Asia. The judge couldn’t consider lividity.

Anonynon: Cross-examination regarding the Intercept interview would be interesting.

SMP: I assume the State is carefully weighing its options.

Shelby George: I see your point, but the Supreme Court in Wearry basically said that it was a he said-she said case as well and found prejudice.

Ben: I think that Judge Welch correctly concluded that that there were broader issues with the cell tower evidence. The State cannot bring new witnesses or evidence at the COSA hearing, which would just feature legal analysis. In other words, the State could find a new witness or document today which would establish that the disclaimer was irrelevant to this case, and it wouldn’t matter.

Sarah Y: Judge Welch had 2 option: Find a Brady violation or find IAC. It couldn’t be both.

Beth Miller: Thanks, Mom.

Cupcake: The State’s not going to restart the investigation unless they drop the charges against Adnan.

Posted by: Colin Miller | Jul 1, 2016 4:14:38 AM

This non-lawyer read the ruling differently. I was surprised when reading the decision that the alibi ineffective assistance claim was denied based on what I’ve learned from Undisclosed. But when you read the ruling, he’s clearly NOT siding with the state here, he was careful to limit the ruling to the issues at hand. It was reassuring that Judge Welch found Guiterrez fell below the reasonable standard for not contacting Asia, and refuted ALL of the state’s arguments. He found it didn’t meet the prejudice text because the state’s case was so weak. Adnan clearly wasn’t convicted on the murder time because the state’s theory of the case was not supported by witness testimony. So even though Asia refuted the state’s timeline, the fact that Jay provided a completely different timeline those facts were clearly was not drove the jury to convict. That’s how I read footnote 9 – the state’s conviction was based on such shaky testimony that even a good witness may not have changed the outcome.

Posted by: Karen | Jul 1, 2016 4:27:14 AM

Given the judge's finding of IAC for failing to cross-examine the cell-tower expert on reliability of incoming calls, it seems a bit strange that he premised the entire prong 2 Strickland rejection argument for the Asia argument on an inability of the alibi to sever the burial nexus link...which is based only on incoming calls... what are your thoughts on that?

Posted by: Cupcake | Jul 1, 2016 4:37:12 AM

Last night Adnan's attorneys said that the conviction is vacated. If that's the case, then what would the State appeal? The vacating of the conviction?

Posted by: Rita | Jul 1, 2016 7:58:54 AM

First off, congratulations! You guys did amazing work for this case. Now, a question. The judge rejected the Asia argument because it wasn't able to sever the burial link due to the cell phone data being based off of incoming calls, which we now know to be unreliable. However, can the judge only consider in his decision what the jurors knew at that time (i.e., cell phone data that they were shown to be reliable since no one argued against it)? Therefore, they at the time had testimony from Jay that was 'corroborated' with cell phone data. Because they believed this data to be accurate, is the problem that the judge can't consider what we know now about the data and must work from the premise that the jurors were shown it was reliable and had no way of knowing otherwise?

Posted by: Jamie | Jul 1, 2016 8:01:36 AM

I have a question........When Adnan first got charged and in his original bail hearing, there was a mistake on his papers saying he was 18 when really he was 17 (age making the difference on whether this was a capital case or not). The error was also a deciding factor on whether or not he was eligible for bail. Is it possible that you can make the same argument now when trying to get him released on bail citing the error and that he should have been allowed bail originally? If so, couldn't you also offer the same stipulations as far as turning over passport (which is obviously expired), and all the other things they brought up in the original stip? This of course depending on whether or not the State appeals the vacated conviction and whether or not they decide to go ahead and recharge Adnan. This may seem like a stupid question but I am hoping you can shed some light.

Posted by: Kimmy | Jul 1, 2016 8:40:19 AM

Colin, If Adnan gets a new trial can all of Don's odd behavior from the day Hae went missing & thereafter be brought in? Could police have purposely not further investigated Don cuz his dad was a cop?
CM Note: This is the 25th and final comment that will appear on this post.

Karen: My take is that Judge Welch was saying that the State's case was very weak aside from the ping confluence. As such, Asia wasn't enough but the disclaimer was. I think we're pretty much on the same page.

Cupcake: I think Wearry says that you should look at these two together, but, again, I don't think Judge Welch considered Wearry.

Rita: Yes. The State would say Judge Welch erred in vacating the conviction b/c there was no ineffective assistance.

Jamie: Well, the judge did consider the cell tower issues in the 2nd part of his ruling, but he didn't let it influence his Asia findings. I think Wearry supports the conclusion that the cell tower issues could be considered as part of the Asia findings.

Kimmy: I imagine this argument could be raised as part of the bail argument.

Deb: At a new trial, Adnan could present any and all evidence relating to alternate suspects, assuming it satisfies the relevance test.

Posted by: Deb | Jul 1, 2016 8:49:50 AM

Post a comment