EvidenceProf Blog

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

Wednesday, July 27, 2016

What to Expect From the State's Application for Leave to Appeal in the Adnan Syed Case

As I noted yesterday, the State has until Monday, August 1st to file its Application for Leave to Appeal (ALA) to the Court of Special Appeals of Maryland in Adnan's case. According to Maryland Rule 8-204(b)(3),

The application shall contain a concise statement of the reasons why the judgment should be reversed or modified and shall specify the errors allegedly committed by the lower court. 

In Faulkner v. Director of Patuxent Institution, 187 A.2d 473 (Md. 1963), the Court of Appeals of Maryland noted that

The terms ‘concise statement of the reasons' and the ‘list of errors,’ as here used, mean just what they say, and require a brief statement of facts setting forth the reasons why the order should be reversed or modified, and a list of the alleged errors committed by the trial court; and these requirements are not fulfilled by a mere statement of the conclusions of the applicant.

In Faulkner, the applicant included the following in his statement of reasons for reversal:

4. Erroneous and prejudicial testimony was given by Dr. Harold M. Boslow with respect to my record of prior convictions.

5. The State's Attorney made improper and highly prejudicial statements to the jury not consistent with the evidence.

6. That all or a majority of the evidence used against your petitioner was hearsay and inadmissible, no opportunity was given to cross-examine individuals who made up the report.

In finding that the applicant's ALA should be denied, the court concluded that

contention (4) should have given a concise statement of the alleged ‘erroneous and prejudicial’ testimony of Dr. Boslow; contention (5) should have briefly summarized the ‘improper’ statements of the State's Attorney; and (6) should have succinctly pointed out the ‘hearsay and inadmissible’ evidence.

Such a result is not atypical. While I don't have any specific numbers, I've been told that the vast majority of ALAs are denied. As the Court of Special Appeals of Maryland noted in Hernandez v. State, 672 A.2d 103 (Md.App. 1996),

Some are denied because, after examining the record, we find that the relevant facts are not as alleged by the applicant and do not support his allegations of error or entitle him to any relief. The applicant may, for example, allege that the judge said or did something wrong, yet when we examine the record, we find that the judge never actually said or did the thing alleged.

The typical rules might not apply here because the Court of Special Appeals of Maryland will receive the State's ALA after having already remanded the case to the Baltimore City Circuit Court because it had insufficient evidence to resolve Adnan's appeal. On the other hand, Judge Welch granted Adnan relief on an issue (the cell tower issue) that was different from the issue that was remanded (the Asia issue).

We likely won't know for a while whether the Court of Special Appeals grants the State leave to appeal. But the State's ALA should give us a good idea what the State plans (and does not plan) to argue on appeal.




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What is "a while?"

Posted by: Abby C | Jul 27, 2016 6:21:50 AM

If the State misses the deadline, will the Court allow a later filing?

Posted by: tim | Jul 27, 2016 10:36:07 AM

Do you believe it will take less time than the norm for the court to make it's decision on the ALA because the court is already familiar with the case because of the remand?
Since the court previously ordered the remand, doesn't that give Judge Welch some leeway on the cell tower issue since he was the original judge on the case and they essentially threw it back in his lap to revisit?

Posted by: Septimus Luker | Jul 27, 2016 4:12:12 PM

Colin, IF Adnan and his lawyers went ahead with a new trial, could they ask for a bench trial? Considered from a legal point of view, would this be a better/safer alternative to a jury trial?

Posted by: Kim | Jul 27, 2016 6:22:51 PM

Yes, Kim .. especially since the jury were hoodwinked into arriving at a guilty verdict after Urich's snow job on them.

Posted by: Ben Evans | Jul 28, 2016 12:24:38 AM

I don't mean to ask the obvious, but if the court denies the application for leave to appeal (ALA), I assume that means that the State cannot then file an appeal? Which means in effect Judge Welch's ruling is not overturned then the case moves to the new trial? Or is there another possible result in response to the ALA? Or another work-around by the State? Thanks.

Posted by: fma | Jul 28, 2016 11:30:23 PM

I think we should have professional jurors. People who aren't drawn from the ranks of the DA office (they shouldn't be lawyers period), but who go to school to study logic and Bayesian probability estimates. Plus a few courses in basic modus tollens common sense. You'd need only like four per trial, and it would be a career for those who choose it.

Posted by: Paul | Jul 29, 2016 2:35:25 AM

@Paul Professional jurors could possibly violate the Constitutional rights of the defendant.

Posted by: tim | Jul 29, 2016 11:11:56 PM

Abby C: Possibly months.

tim: No, the court has no authority to extend the deadline.

Septimus Lurker: Yes, I think it will take less time than usual.

Kim: They can ask, but they would need the consent of the prosecutor and the judge.

fma: The State could ask COSA to reconsider but could not appeal to the Court of Appeals (state supreme court).

Paul: It’s an interesting idea.

tim: Yes, it would probably require a Constitutional amendment.

Posted by: Colin | Jul 30, 2016 3:32:13 AM


As you indicate, Judge Welch granted Adnan relief on an issue (the cell tower issue) that was different from the issue that was remanded (the Asia issue). How should COSA react to this? Is there a precedent?


Posted by: Elaine | Jul 30, 2016 6:29:54 PM

Elaine: There is no precedent on that issue, so it is unclear how COSA can/should proceed. That said, I assume COSA will grant leave to appeal if it thinks Judge Welch might have gotten it wrong and will deny leave to appeal if it thinks Judge Welch definitely got it right.

Posted by: Colin | Aug 1, 2016 6:37:29 AM

When will you/the media/everyone know if they file the appeal today?

Posted by: Toni | Aug 1, 2016 6:19:00 PM

Colin, what is the procedure from here? If COSA grants leave to appeal (which you say will probably take months), does that mean that there is an oral hearing at COSA? If so, what kind of timing are we talking about for them to schedule in a hearing at COSA?
If COSA allow the new State's witnesses in, would they be heard at COSA or get sent back down?

Posted by: Ben | Aug 2, 2016 7:13:06 PM

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