EvidenceProf Blog

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

Friday, July 1, 2016

A New Trial in Three Steps

A new trial in three steps:


Step One: May 6, 2015: The State files its Brief of Appellee. At trial, the State had claimed that the 2:36 P.M. call on Adnan's call log was Adnan calling Jay from Best Buy after having killed Hae Min Lee. On appeal, the defense had thus claimed that Asia McClain, who saw Adnan at the library until 2:40 P.M., provided a complete alibi. In its brief, the State responded with the now infamous footnote 8, which states in pertinent part:

Screen Shot 2016-07-01 at 12.27.45 PM

This argument was completely unnecessary. The State could have simply deemphasized the importance of the 2:36 P.M. timeline or claimed that Asia's testimony wouldn't have been enough to change the jury's verdict. Instead, the State decided to advance a new argument on appeal, an argument that piqued the interest of defense counsel. 


Step 2: August 24, 2015: The defense files a Supplement to Motion to Re-Open Post-Conviction Proceedings on behalf of Adnan Syed. The Supplement asks the court to consider evidence such as the AT&T Cover Sheet to show that, inter alia, Gutierezz was ineffective in failing to challenge the cell tower pings. Defense counsel places heavy reliance on footnote 8 in arguing that the State opened the door for such a Supplement:

Supplement 1

Supplement 2

Adnan has now doubled his chances at a new trial. Whereas previously, he could only win based upon Gutierrez's failure to contact Asia McClain, he can now have his conviction vacated based upon her failure to challenge the cell tower evidence.


Step 3: June 30, 2016: Judge Welch issues his opinion. He denies Adnan relief based on Gutierrez's failure to contact Asia McClain, deeming this failure unreasonable but finding that it wouldn't have changed the outcome at trial.* Conversely, Judge Welch grants Adnan a new trial based upon Gutierrez's failure to challenge the cell tower evidence.

So, what about the State's footnote 8? Judge Welch addressed the State's argument in his own footnote:

Screen Shot 2016-07-01 at 12.54.43 PM

Some people have noted that yesterday's ruling was not about actual innocence. Fair enough. But this is about as close as you can get.

Keep in mind that the State prosecuted Adnan for murder based upon a theory of "kidnapping by fraud." The heart of that theory was that Adnan gave Jay his car and cell phone so that Adnan could call Jay on that cell phone after he killed Hae. Judge Welch found that Asia credibly testified to seeing Adnan at the library until 2:40 P.M. and concluded that  the State's attacks on her were based upon "unwarranted speculations." So, that means the 2:36 P.M. call doesn't work as the "come and get me" call. Adnan was at the library, talking with Asia.

Then, as Judge Welch noted in his footnote, for a laundry list of reasons, the 3:15 P.M. call doesn't work as the "come and get me" call. In other words, there wasn't a "come and get me" call to Adnan's cell phone under any narrative that makes sense. In other words, judge Welch is saying that the State doesn't have a case. 


*As I noted yesterday, I think there's a good chance Adnan wins on this issue on cross-appeal.



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Do you think the judge decided, since prong 2 related to Asia was more subjective and prong 2 of the cell phone fax cover sheet was easier to objectively determine, to just go ahead and base his decision on the coversheet? It is very clear based on the affidavit from Waranowitz that he would not have testified the way he did if he'd seen the coversheet. I have a feeling that he may have ruled in Adnan's favor on Asia if that had been the only thing in the argument.

Posted by: Narizarielka | Jul 1, 2016 10:50:07 AM

Congratulations to you and the entire team for helping to get the case to this point. My question is with regard to a possible appeal by the State. What are the rules of procedure with respect to a time limit to file notices or briefs? What might the defence do in the meantime?

Posted by: streetwriter | Jul 1, 2016 10:56:39 AM

The court did not find that Asia credibly testified to anything. In fact, he found the State's theory that she had been fed information "quite compelling," even if far too speculative to be adopted in a PCR decision. In other words, the same theories the State advanced before Judge Welch (coupled with Asia's bizarre statements in her book) could easily persuade a jury in a future trial that she is not credible, but were not properly considered in hindsight on PCR. If Judge Welch thought that Asia's testimony was proof of actual innocence he certainly would not have avoided a prejudice finding on that issue which, as you point out, would have been fairly easy to reach. Why do you think he went out of his way not to find prejudice on that issue?

Posted by: Jane | Jul 1, 2016 11:08:43 AM

If there are appeals, will they be assigned to another judge since Judge Welch is retired?

Posted by: Jann Schott | Jul 1, 2016 11:33:04 AM

Narizarielka: I was just talking to a colleague, who had the same thoughts on objective vs. subjective.

streetwriter: The State has 30 days to appeal. The defense is probably doing some preliminary work on an appellate brief under the assumption that the State will appeal.

Jane: According to Judge Welch, “[i]n order to reach the State’s conclusion, however, the Court would have to assume that it was highly unlikely that McClain could have obtained the information from other sources, which is an assumption contrary to the facts.”

Jann Schott: Appeals would be to the Court of Special Appeals and Court of Appeals of Maryland, which have different judges.

Posted by: Colin Miller | Jul 1, 2016 11:45:20 AM

I guess Judge Welch has also avoided overruling himself, by ruling against the Asia issue. The cell tower stuff was new...

Posted by: Cupcake | Jul 1, 2016 12:01:06 PM

In your previous posts about failure to contact an alibi witness, I don't recall you saying that this was subject to the "2 prong" evaluation. Doesn't precedent say if they failed to contact the alibi, then it is IAC?

Posted by: Melissa | Jul 1, 2016 1:21:16 PM

Interesting how Judge Welch describes the Asia Conspiracy theory as both compelling and sophistry. I suspect Judge Welch is being sarcastic here.

Posted by: Sue | Jul 1, 2016 1:23:55 PM

I still don't understand why failing to contact Asia was not IAC, but oh well. I did enjoy reading Judge Welch trying to follow the crazy timeline stories.

Posted by: CeeJay | Jul 1, 2016 2:06:38 PM

Question. Let's assume the state appeals this decision and loses.
Would you say that the state will rather aim for a guilty plead of Adnan, than to begin a retrial?
I mean, as far as the state goes, Adnan is guilty, and a closed case would be better than a new trial with a totally uncertain outcome, knowing all the new information (and interviews).

And wouldn't it also be better for Adnan to take an Alford (or some other guilty) plea, than to go through years of new trial?
Winning a new trial means a clean sheet of course, but is it really worth the trouble? This is without questioning if he did it or not. (He said it himself in the Serial podcast, he 'should have plead guilty') Will this point of view still hold up?

Posted by: Martin | Jul 1, 2016 2:46:48 PM

@Sue --

Yes. He's basically saying, "Nice theory, State! Sadly, it is contrary to law and facts."

Posted by: pluscachange | Jul 1, 2016 2:49:33 PM

Seems Adnan should be released pending appeal and new trial. If the judge says "new trial," seems Adnan should enjoy a renewed presumption of innocence, like Daniel Holden in the fictional TV series Rectify.

Posted by: Tom Hagy | Jul 1, 2016 3:16:48 PM


Two questions:

First, to the untrained legal eye (I am not a lawyer), it seems that Judge Welch's decision with regard to IAC in terms of the Asia McClain issue was inconsistent with his own ruling. He states that the petitioner met the requirements for prong 1 of the IAC claim, the "unreasonable action" prong, but did not meet the requirements for prong 2, the "prejudice" prong, of the IAC claim. He states that the "prejudice" prong was not met because the Asia McClain alibi would not have affected the outcome of the case due to the confluence of Jay's testimony and the cellphone data. The problem is that in the same ruling he grants Adnan a new trial largely due to the weakness of this same cellphone data. Is there a legal nuance that allows Judge Welch to do this?

Second, with regard to the Brady claim relating to the fax cover sheet, I was always under the impression that the defense (Adnan) never saw this fax cover sheet until Susan Simpson recently discovered this. However, the Brady claim was denied because the defense apparently had this fax cover sheet even at the time of the first trial. Can you explain the timeline of events regarding the fax cover sheet?


Posted by: Teeter | Jul 1, 2016 3:26:36 PM

CeeCee, the judge dis find the attorney committed a grave error in not contacting Asia. The problem was that the judge said Adnan ALSO had to show that contacting Asia would've had a reasonable chance (I'm not quoting the exact standard here, but it's some like reasonable chance, or likelihood) of changing the outcome of the first trial.

So you can find IAC, but you also have to find that it affected the outcome of your trial. If the court thinks the outcome would've been the same even if that error hadn't been made (not contacting a witness, or not challenging certain evidence, etc), then the court won't overturn the conviction (because there's be no point, the trial was fair).

It's a fine point, I know. One of hose things you almost have to go to law school to understand (how you can actually have an IAC finding but not overturn a conviction)...so what the deal is is that OVERTURNING the conviction BASED on IAC requires 1) a finding of IAC, and 2) likelihood of a different outcome.

The second prong has nothing to do with IAC. It's just a necessary component of OVERTURNING a conviction.

Make sense?

Posted by: ShannonDEsq | Jul 1, 2016 4:58:37 PM

Cupcake: True, but Judge Welch did change his opinion with regard to whether Gutierrez acted unreasonably in failing to contact Asia.

Melissa: I did a few posts about the prejudice prong, such as this one:


A defendant claiming IAC based on failure to contact an alibi witness has to satisfy the prejudice prong.

Sue: Indeed.

Ceejay: Judge Welch thought that the ping confluence was the State’s case. That conclusion really paints the State into a corner on appeal.

Martin: I think the State would much prefer a plea deal over a retrial. It’s so tough to put myself in Adnan’s shoes. I can see why he’d accept an Alford Plea, but I can also see why he’d want to get a “not guilty” verdict.

Pluscachange: Indeed.

Tom Hagy: I agree, but neither Justin Wolfe nor Richard Nicolas got bail under similar circumstances.

Teeter: I think Judge Welch is saying that Asia standing alone wouldn’t be enough. In other words, if the cell tower pings stood, the conviction would stand. I see what he’s saying, but I think Wearry supports the opposite conclusion.

Gutierrez had the disclaimer. The argument was that she either improperly failed to use it (IAC) or failed to use it because the State was misleading in how they compiled Exhibit 31 (Brady). Judge Welch bough the 1st argument and granted relief accordingly.

ShannonDEsq: Right. Gutierrez acted unreasonably in not contacting Asia, but, according to Welch, Asia’s testimony probably wouldn’t have changed the outcome by itself.

Posted by: Colin Miller | Jul 1, 2016 6:10:35 PM

I don't understand how the Judge could have found the Asia Conspiracy Theory "compelling". If Adnan was going to go through all that to secure a false alibi, then he would have USED that alibi. He would have told the police, his lawyer, Sarah Koenig, etc that he was at the library. Instead he said that he couldn't remember, and if memory serves the whole first episode of Serial is about trying to remember your activities on a specific day months go. What's compelling about a conspiracy to create an alibi that was never used?

Posted by: Beth | Jul 1, 2016 7:13:36 PM

From my reading of the opinion, the judge thought the State's Asia theory was "compelling" in the same way that a good episode of Law & Order is compelling -- it was creative and theatrical. But the judge's thoughts about the actual *merits* of the State's theory couldn't be more obvious: "sophistry" that was "contrary to the facts."

Posted by: Justin | Jul 1, 2016 7:31:58 PM

If Adnan accepts an Alford deal, would Haes family be able to sue him for money made due to his celebrity, with a guilty plea hanging over him?

Posted by: Duane | Jul 1, 2016 7:32:13 PM

Beth: I suspect it is similar to when politicians use the term 'My Friend' when referring to a politician they disagree with. Compelling as two sort of different connotations and he may have meant it in the more dramatic sense IMO. I mean, storylines of Soap Ioera's can be compelling and still not at all logical or reality based...L

Posted by: Ryo | Jul 1, 2016 7:35:07 PM

@Beth --

He was just having a little stylistic fun taking it faux-seriously, because he has to say *something*. What he really thinks is that what they were saying was was contrary to law and facts.

Posted by: pluscachange | Jul 1, 2016 7:49:53 PM

@Beth - maybe Welch was just being kind/polite to the state - or maybe he missed out the word 'superficially'. I guess he could have found it initially compelling - but once he started to engage in actual thought/heard the counter arguments from the defence (e.g. that the info in the letters was publically available), he realised the superficially compelling theory was nonsense.

@Colin - where would the cumulative IAC stuff come into all this? Is that what Wearry was getting at? Or is Wearry separate to cumulative IAC arguments?

Posted by: Cupcake | Jul 2, 2016 1:28:09 AM


He did say compelling, but in the next sentence he notes that he is not permitted to engage in "the exercise of retrospective sophistry", then he goes on to explain exactly why the compelling arguments advanced by the state are sophistry (fallacious argument).

Posted by: Michael | Jul 2, 2016 3:54:39 AM

Beth: I think Judge Welch meant that it was facially compelling but didn’t withstand further scrutiny.

Justin: Agreed.

Duane: I think the statute of limitations would have run on any such claim.

Ryo: Agreed.

pluscachange: Agreed.

Cupcake: Wearry is about cumulative prejudice. It was saying that you should aggregate prejudice to sustain multiple Brady claims that each, standing along, might not be enough. I think the same should apply to IAC.

Michael: Right.

Posted by: Colin Miller | Jul 2, 2016 4:21:32 AM

If I were a judge I would say almost undetectably sarcastic things all the time.

There's no call for going all Scalia about it. For one thing, most people who aren't him can't carry it off. But for another, it's much funnier when it's sedate, imo.

/talking to myself.

Posted by: pluscachange | Jul 2, 2016 8:27:47 PM

Plusachange, I appreciate that you shared your thought aloud!

Posted by: Chris | Jul 3, 2016 7:25:40 PM

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