EvidenceProf Blog

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

Thursday, July 7, 2016

Assessing Judge Welch's Conclusion That Adnan Didn't Waive His Cell Tower/IAC Claim

In discussing Judge Welch's opinion granting Adnan a new trial, I have placed a lot of emphasis on substantive caselaw regarding ineffective assistance of counsel, alibi witnesses, and cell tower pings. But a trial that ended three days before the Doors appeared on "The Ed Sullivan Show" might be more important than any of that.

Ottway Leon Curtis, Sr. was convicted of first degree murder on September 14, 1967, in the Circuit Court for Prince George's County. After Curtis's direct appeal was unsuccessful, he filed a petition for postconviction relief, which claimed, inter alia, that "his constitutional rights were violated by 'the trial court's failure to allow and/or call three or more doctors to testify' as to his sanity." After this petition was denied, Curtis filed a second PCR petition alleging ineffective assistance 

based on the trial attorney's failure to request a jury instruction on alibi, failure to request an instruction that voluntary intoxication could reduce first degree murder to second degree murder, failure of trial counsel to object to hearsay testimony of certain witnesses, and failure of counsel to request an instruction on the defense of "diminished capacity."

In response, the State claimed that Curtis had waived these claims by not raising them in his first PCR petition. As support, it cited to Article 27, Section 645A(c)* of the Maryland Code, which stated in pertinent part that

an allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation...in a prior petition...actually instituted by said petitioner, unless the failure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstances shall be upon the petitioner....[T]here shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation.

The Court of Special Appeals bought the State's arguments that (1) Section 645A(c) required Curtis to prove "special circumstances" to defeat the State's claim of waiver; and (2) Curtis did not prove "special circumstances." The Court of Appeals of Maryland disagreed. It held that

This interpretation of s 645A(c) by the State and the Court of Special Appeals is manifestly erroneous. The first paragraph of subsection (c) declares that, for purposes of the Post Conviction Procedure Act, "an allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation" in a prior proceeding. The test for "waiver" which the Legislature contemplated was clearly the "intelligent and knowing" failure to raise, not the failure of counsel or an unknowing petitioner to raise an issue. The first paragraph of subsection (c) goes on to provide that where there is a knowing and intelligent failure to raise an issue previously, the failure "shall be excused because of special circumstances," with the burden being upon petitioner to prove the existence of special circumstances. Thus, the matter of "special circumstances" only becomes pertinent where there is an intelligent and knowing failure of the petitioner to previously raise an issue. Where the record affirmatively shows that there was not an intelligent and knowing failure to raise, there is nothing to "excuse," and the presence or absence of "special circumstances" has no relevance.

In other words, if a petitioner (like Curtis or Adnan) can establish that he did not intelligently and knowingly fail to raise an issue involving a fundamental right (like the right to effective assistance of counsel), that petitioner does not need to prove "special circumstances" to raise the issue in a subsequent PCR petition. 

As Judge Welch noted, the Court of Appeals of Maryland later fleshed out this test McElroy v. State:

Screen Shot 2016-07-07 at 10.16.42 AM

Applying this test, Judge Welch made several factual findings in support of his conclusion that Adnan did not intelligently and knowingly waive his claim that trial counsel was ineffective for failing to cross-examine the State's cell tower expert with the AT&T disclaimer:

1. He had never previously raised the disclaimer issue;

2. He was never previously advised that trial counsel may have been ineffective for failing to use the disclaimer

3. He was arrested before graduating from high school and had never completed his high school education.

Now, what's the likelihood that the Court of Special Appeals will reverse these factual findings? According to the dissenting opinion in McElroy, "[a]n appellate court is required to defer to such findings on review unless clearly erroneous." And what about Judge Welch's legal conclusion? Although he didn't cite it, there was an opinion less than a year ago by the Court of Appeals of Maryland finding that a defendant didn't intelligently and knowingly waive a claim of ineffective assistance of counsel. In State v. Smith, 117 A.3d 1093 (Md. 2015), the court held that

Contrary to the State's argument, Curtis and its progeny teach that Smith's claim at issue here—that her plea was not knowing and voluntary—is not among those claims that can be waived merely by inaction. Instead, our case law teaches that, because Smith's claim implicates a fundamental right, she is entitled to have that claim litigated for the first time in a coram nobis action so long as she is able to rebut the presumption that she “intelligently and knowingly” waived the claim by failing to raise it at an earlier juncture.

Therefore, unless the Court of Special Appeals finds that Judge Welch's factual findings were clearly erroneous or is able to distinguish a fairly similar recent case from Maryland's highest court, Judge Welch's waiver conclusion seems likely to withstand scrutinty 


*In 2001, Section 645A(c), was recodified as Section 7-106 of the Maryland Code of Criminal Procedure.



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If COSA did grant the appeal and did find that Judge Welch had erred wrt his finding of fact on the third point, would that capsize the whole ship, or would Curtis and its other progeny keep it afloat?

I hope that's not a stupid question. I am again confused. But that point seems to me to be the vulnerable one, for some reason. I mean....Judge Welch is clearly correct, in that it's a nuanced claim about a technical subject that can't reasonably be assumed to have been intelligently known by Adnan absent his having been advised of it. But there are an awful lot of people in prison who didn't graduate high school.

However, possibly all of them wouldn't have been found to have waived a fundamental claim they hadn't been advised of and couldn't be expected to intuit themselves?

Posted by: pluscachange | Jul 7, 2016 10:08:55 AM

TL;DR for Colin's last 5 posts... The state of Maryland really needs to give up already.

Posted by: Brian | Jul 7, 2016 10:19:39 AM

I gather from your reply to my other query that the point I asked about is a legal conclusion, although Adnan's not having graduated high school is a fact.

My question is still whether it's a vulnerable point, though. I think.

Posted by: pluscachange | Jul 7, 2016 12:07:30 PM

pluscachange: I don’t think that Adnan’s level of education is dispositive of the waiver issue. Interestingly enough, though, the defendant in the Smith case from last year had also finished 11th grade, just like Adnan.

Posted by: Colin Miller | Jul 7, 2016 12:23:44 PM

That's an informative and elegantly phrased response. Thanks!

Posted by: pluscachange | Jul 7, 2016 12:50:54 PM

In regards to the waiver and point 3 about being intelligent, surely it just isn’t about what level of high school you have completed. In the Smith case you cited, the defendant was a drug dealer.
Adnan is highly intelligent and was in the Magnate program at school. Didn’t he get a letter saying he would be accepted into college, or something along those lines?
Also, how is the disclaimer a technical subject that can't reasonably be assumed to have been intelligently known by Adnan? The disclaimer is very straight forward saying that incoming calls aren’t reliable and Adnan was aware that the Leakin Park calls were incoming calls.

Posted by: Ben | Jul 7, 2016 3:23:30 PM

ben: You are right. It’s not just about age. Maryland courts have said that they look at age, education, and, experience. While we might conclude that Adnan’s 11 grades of education were “superior” to Smith’s 11 grades of education, he was only 17 while she was 22, making her older and more experienced.

In terms of the waiver, there are two parts to it: (1) Would a layperson without a high school diploma have understood the factual import of the AT&T disclaimer; and (2) Would a layperson have understood that he could raise a claim of ineffective assistance of counsel based upon failure to cross-examine the State’s cell tower expert with the disclaimer? As Judge Welch noted, “[r]equiring a layman to understand the intricacies of cellular network design and the legal ramifications of trial counsel’s failures to challenge the evidence would be inconsistent with the spirit of the Sixth Amendment.”

Posted by: Colin Miller | Jul 7, 2016 3:56:02 PM

That disclaimer though wasn't attached to the cell phone records in question--in the defense file the only copy of it was attached to Yasir's phone records.

So there's also a need to have conceptually understood that the disclaimer ALSO applied to Adnan's own cell records--records which, at least as far as the defense possessed, the disclaimer was not attached to.

Posted by: Paul | Jul 7, 2016 4:00:50 PM

Consider too how many people had access to the defense file--including the entire Serial team--and yet no one until SS came along made the connection/realization that the disclaimer was relevant. From the moment its importance was discovered, it was brought up. I think it's about as definitive as can be that nobody, Adnan included, was intelligently and knowingly failing to bring it up before it was discovered.

Posted by: Paul | Jul 7, 2016 4:05:53 PM

The only thing this leaves unexplained is the significance of the Doors on Ed Sullivan in the context of waiver of a fundamental right.

Posted by: pluscachange | Jul 7, 2016 4:40:57 PM

You say that no one until SS made the connection / realisation that the disclaimer was relevant. That isn't true, it was the fact that no-one had read it before. Susan Simpson herself said to her partner at the time “Can you read this, it can’t be this simple / easy can it?”
Adnan’s post conviction attorney’s prior to Justin Brown hadn’t noticed it, Justin Brown himself from 2008 until SS told him in 2015 hadn’t noticed it. Was it therefore reasonable for CG to also haven’t noticed it?
It will be interesting to see what other caselaw is out there for people who got rejected on the waiver due to their intelligence and how they compare to Adnan.

Posted by: Ben | Jul 7, 2016 5:30:35 PM

Ben: (1) I think it’s important to distinguish trial counsel from appellate counsel. According to Judge Welch, the State’s disclosures to Gutierrez were not misleading or incomplete, which is a large part of why he rejected Adnan’s Brady claims. Therefore, Gutierrez presumably had orderly documentation showing that the disclaimer applied to Exhibit 31.

This then takes us to appellate counsel. I don’t think Adnan’s attorneys before Justin Brown had Gutierrez’s defense files or MPIA files. Therefore, they would have had no way of knowing about the disclaimer. Subsequently, Justin Brown got the defense file, which was very disorganized, and the State MPIA file, which was pretty slipshod and disorganized. Consequently, I think Judge Welch could justify Gutierrez being on notice about the importance of the disclaimer while Justin Brown was not.

(2) In my brief search so far, I haven’t found any cases in which waiver was found based on a high level of education, but I haven’t done an exhaustive search yet.

ggrzw: You are correct on all three points. With regard to point 1, though, if Adnan were found guilty of murder on retrial, it would be pretty easy for the jury to conclude that it was first-degree murder based on it being death by strangulation. But, yeah, points 2 and 3 show that a conviction on retrial would be a pretty pyrrhic victory for the State. Then again, the same could be said about an Alford Plea.

Posted by: Colin Miller | Jul 7, 2016 6:16:36 PM

Hi Colin,

How many cases are there in Maryland where an IAC waiver has been approved?
Is it a rare occurrence for them to be given?
Were you saying before that you haven't found a case where it was allowed for someone who was deemed as educated / intelligent ?

Posted by: Ben | Jul 7, 2016 6:47:21 PM

It remains baffling to me why neither the prosecution or defense obtained the incoming call detail when cell phone activity was such an important aspect of the case. (And Hae's pager detail!)

Posted by: Jodi | Jul 7, 2016 10:24:21 PM

The Serial team found the fax cover sheet with the disclaimer but did not realise the significance. Though they extensively researched the case and consulted experts. https://serialpodcast.org/posts/2015/10/waranowitz-he-speaks

Posted by: B | Jul 7, 2016 10:33:13 PM

From Curtis: "6. Petitioner is a layman with a seventh grade education and an I.Q. of 72 (borderline range of intelligence). Evidence had been introduced at petitioner's trial that petitioner was a chronic alcoholic who had suffered some brain damage as a result of extended drinking for nineteen (19) years. Petitioner was not aware that he should have raised the issue of ineffective assistance of counsel at his first post-conviction hearing."

It's interesting that here, the education argument is applied to his knowledge of the legal process, not to imply that he should have done his attorney's job and defended himself.

I would like to think that the education test is designed to protect the mentally impaired and "feeble-minded", who perhaps get advice and instruction from their attorney but choose not to follow it, but it's not spelled out that way. I don't like the idea of it being used as a "gotcha" to keep anyone with a GED behind bars because they should have been able to spot IAC in the courtroom or known how to navigate the appeals or PCR process.

Posted by: carnotbrown | Jul 7, 2016 11:17:14 PM

Ben: I don’t know how many times an IAC waiver has been approved. I haven’t been through all of the caselaw yet. I have not yet found a Maryland waiver case where there was a highly educated/intelligent defendant. But here’s the way that waiver usually works. Age: If the defendant is mid-20s or later, that generally cuts in favor of waiver, although not hugely so. If the defendant is under 18, that cuts against waiver. Education: If the defendant is a college grad, that cuts in favor of waiver. If the defendant didn’t graduate high school, that cuts against waiver. Experience: If the defendant has legal experience (paralegal, former cop, etc.) that cuts in favor of waiver. The same goes for a defendant who has been charged with crimes previously. If this is the defendant’s first time being a defendant, that cuts against waiver. Intelligence: Low IQ and mental disability/illness cuts against waiver. I’ve never really seen it work the other way, though. You don’t really see courts pointing to a defendant’s high IQ or intelligence (independent of education) when finding waiver. So, overall, I think Adnan looks pretty good on the waiver issue.

Jodi: That’s a great point. If the Leakin Park pings really were part of the crux of the State’s case why didn’t they get (1) the numbers for incoming calls to Adnan’s cell phone; or (2) the records from Jenn’s phone?

B: Not part of the factual record of the appeal, but that certainly lends support to the argument that a layman like Adnan wouldn’t understand their significance.

carnotbrown: As I said above, those types of facts in the Curtis case definitely cut against waiver, but that doesn’t mean their absence supports a finding of waiver.

Posted by: Colin Miller | Jul 8, 2016 3:03:15 AM

Who has the burden of proof in regards to this knowing-and-intelligently-waiving issue? Does the state need to prove the defendant *was* in fact aware of it, or vice versa?

Because I don't see anyone arguing that Adnan actually was aware of the cover sheet before now. I only see arguments as to whether the appellate court might find that he *ought* to have been aware of it. Is this question a matter of whether defendant in fact was aware, and knowingly chose to not bring it up -or- that defendant merely ought to have been aware?

If it's the former, then I don't think even someone like Seamus Duncan would argue Adnan in fact has known about this cover sheet the last decade but flippantly chose never to raise the issue.

Well... Actually maybe I shouldn't speak to soon. I've seen some crazyass Olympic-level mental gymnastics from reddit guilters in the past.

Posted by: Paul | Jul 8, 2016 9:35:57 PM


Are you able to give us some examples where a Maryland court has found that a petitioner did not intelligently and knowingly waive their right to challenge trial counsel's alleged IAC ?

Posted by: Ben | Jul 10, 2016 4:07:53 PM

Paul: Adnan initially had to overcome the presumption that his failure to timely raise the cell tower claim was not knowing and intelligent. Now that Judge Welch has found that he overcome the presumption, the burden is on the state to prove waiver.

Ben: The Smith case in this post is one such example. As the COA noted,

“As mentioned in [Smith’s] declaration [attached to the Petition] and throughout this petition, there is no way that Ms. Smith could have known that her attorney was ineffective in his advise [sic] that she would not face adverse immigration consequences as a result of the plea.”

That was the most recent example I could find: a case from last year. I remember seeing a few others. If the State decides to appeal on the waiver issue, I will probably do posts on them.

Posted by: Colin Miller | Jul 10, 2016 6:50:58 PM

From the bit you cited on the State vs Smith ruling
“she is entitled to have that claim litigated for the first time in a coram nobis action so long as she is able to rebut the presumption that she “intelligently and knowingly” waived the claim by failing to raise it at an earlier juncture.”
‘So long as she is able to rebut the presumption’. But it was denied right?
From the State vs Smith ruling.
“In short, neither in the superceding petition for coram nobis relief, at the coram nobis hearing, nor before this Court, did Smith ever raise that a rebuttable presumption as to a knowing and voluntary waiver existed under CP § 7-106(b), nor did Smith rebut or attempt to rebut the presumption that she knowingly and intelligently waived the right to pursue post-conviction relief, and, by extension, any allegation of error that could have been made in a post-conviction petition.”
“As to whether Smith’s guilty plea was knowing and voluntary, we hold that the guilty plea was knowingly and voluntarily made, and that testimony of Smith’s counsel pertaining to his advisement of Smith prior to the guilty plea about the nature of the charges against her was properly admitted at the coram nobis hearing for the purpose of determining whether Smith pled “voluntarily, with understanding of the nature of the charge” within the meaning of Maryland Rule 4-242(c).”
“Nothing in the record indicates that Smith was mentally incapacitated at the time of the hearing, that she lacked a grasp of the English language, or that she was coerced by someone into pleading guilty—in other - 38 - words, nothing in the record undermines the determination that Smith understood the nature of the charges.13 Indeed, at the time of the guilty plea hearing, Smith was twentytwo years old, had completed the eleventh grade, and had resided in the United States for fourteen years.”
How does this help Adnan? What am I missing here?

Posted by: Ben | Jul 10, 2016 7:59:08 PM

Ben: There were 2 issues in Smith: (1) Did Smith waive her claim; and (2) was her claim meritorious. The COA answered the first question in the negative, despite the fact the she didn’t raise it in her first application:

“On the first issue of whether Respondent waived her right to coram nobis relief, a majority of this Court holds that Respondent did not waive her coram nobis claims by failing to file an application for leave to appeal her prior conviction because Maryland Code (2014 Supp.), § 8-401 of the Criminal Procedure Article applies retrospectively to Respondent’s case. The majority further holds that Respondent did not waive her right to pursue coram nobis relief by not moving to withdraw her guilty plea or filing a petition for post-conviction relief when those avenues of relief were available to her.”

As you note, the COA then went on to find that Smith’s claim was not meritorious.

The equivalent thing in Adnan’s case would be the court finding that Adnan didn’t waive his cell tower/IAC claim but that the claim was not meritorious. But I’m not citing Smith on the merits because it involves a completely different factual context: advice regarding a guilty plea vs. cross-examining an expert. I’m citing Smith on the waiver issue because both involved defendants who had only finished 11th grade initially not making a claim and then trying to subsequently make that claim.

Posted by: Colin Miller | Jul 11, 2016 3:07:04 AM

(Colin wrote:) "If the Leakin Park pings really were part of the crux of the State’s case why didn’t they get (1) the numbers for incoming calls to Adnan’s cell phone; or (2) the records from Jenn’s phone?"

Slightly off topic, but isn't this, on the states side at least, due to them promising their star witness not to look into his drug business. it's very strange, but the location of the phone is part of a murder trial while the other information from most of the calls would be part of the never happening drug charge.

Posted by: Lars in Sweden | Jul 11, 2016 7:40:41 AM

Colin you not that “Therefore, unless the Court of Special Appeals finds that Judge Welch's factual findings were clearly erroneous or is able to distinguish a fairly similar recent case from Maryland's highest court, Judge Welch's waiver conclusion seems likely to withstand scrutinty”

“Welch’s factual finding were clearly erroneous”

But that is the case isn’t it because Welch’s factual finding was that Adnan had not completed his High School diploma, when in fact Adnan did complete his high school diploma.

Adnan graduated in prison in June of 1999, well before the trials started.

Posted by: Ben | Jul 31, 2016 11:37:14 PM

Ben: Is there evidence in the trial/appellate record that Adnan completed high school? COSA is bound by the evidence on the record. One reason why COSA remanded to Judge Welch was because it could not consider Asia’s new affidavit. If there’s no evidence on the record that Adnan graduated from high school, there’s no basis for COSA to conclude that this event took place.

Posted by: Colin | Aug 1, 2016 6:45:33 AM

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