EvidenceProf Blog

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

Wednesday, July 6, 2016

The State is Between Scylla and Charybdis in Appealing Judge Welch's Ruling

In Greek mythology, Scylla and Charybdis were a pair of monsters who lived on opposite ends of the Strait of Messina between Italy and Sicily Scylla was originally a sea nymph who was loved by the sea god Poseidon*. Out of jealousy, Poseidon's wife Amphitrite poisoned the waters in which Scylla bathed. This turned Scylla into a six-headed beast with three rows of sharp teeth in each head. When ships passed close by her, she struck out to grab and eat unwary sailors.

Charybdis was also a sea nymph, as well as the daughter of Poseidon. Zeus* transformed her into a dangerous whirlpool across the strait from Scylla. Ships sailing the strait were almost certain to be destroyed by one of the monsters.

The legend of the two monsters gave birth to the phrase "between Scylla and Charybdis," meaning a situation in which one has to choose between two equally unattractive options.


Based on the opinion of the Fourth Circuit in Elmore v. Ozmint, 661 F.3d 783 (4th Cir. 2011), I'm more convinced than ever that the State will be between Scylla and Charybdis if it attempts to appeal Judge Welch's opinion granting Adnan a new trial.

An ineffective assistance of counsel claim requires the defendant to prove (1) unreasonable performance; and (2) prejudice, i.e., that reasonable performance by trial counsel would have created the reasonable probability of a different outcome at trial. With regard to trial counsel's failure to contact Asia McClain, Judge Welch found that Adnan proved unreasonable performance but failed to prove prejudice because the crux of the State's case was the confluence between Jay's burial story and the Leakin Park pings. 

In turn, Judge Welch found that trial counsel was unreasonable in failing to cross-examine the State's cell tower expert with the AT&T disclaimer and that this failure was prejudicial because, again, the Leakin Park pings were part of the crux of the State's case. As I noted on Monday's episode of Undisclosed, these twin conclusions make it exceedingly difficult for the State to claim on appeal that trial counsel's failure to cross-examine the State's cell tower expert with the AT&T disclaimer was not prejudicial. The problem with this strategy is that a winning argument on this point means that the Leakin Park pings were not the crux of the State's case, which would imply that failure to contact Asia McClain was (or at least could be) prejudicial.

As Elmore makes clear, however, the State might have to argue on appeal that the Leakin Park pings were not part of the crux of the State's case. In Elmore, Edward Lee Elmore was charged with the murder of Dorothy Edwards, an elderly woman who had sporadically employed him. Elmore was initially convicted in 1982, but his conviction was reversed because "the trial judge had improperly entered the jury room during the sentencing phase of the trial, without counsel for either the State or the defense." This reversal gave Elmore's attorneys "a rare second chance to contest the State's case—along with near-perfect knowledge of what that case would be."

According to this Fourth Circuit, this first trial revealed that most of the State's case -- "James Gilliam's account of Elmore's spontaneous jailhouse confession and Elmore's guilty demeanor and lack of a corroborated alibi for Saturday night" -- was weak. Instead, the crux of the State's case was forensic evidence, such as pubic hairs allegedly recovered from the victim's bed. 

This meant everything to the Fourth Circuit. As the court noted, in many cases, defense counsel might act reasonably in failing to rigorously cross-examine State experts, which could "risk 'making a central issue out of [the forensic] evidence.'" In other cases, defense counsel might simply "ma[k]e an informed decision to pursue another strategy." In this case, however,

forensic evidence was always and obviously vital to the State's case, which otherwise relied on James Gilliam's account of Elmore's spontaneous jailhouse confession and Elmore's guilty demeanor and lack of a corroborated alibi for Saturday night. As such, the defense did not risk “making a central issue out of [the forensic] evidence,” because the State was already certain to do so....Rather, the circumstances necessitated that the defense work to engender doubt about the forensic evidence. Elmore's lawyers attempted as much in their cross-examinations of the State's witnesses, but, because the lawyers had twice squandered opportunities to investigate the forensic evidence (prior to the 1982 and 1984 trials), they were unarmed for the battle.

As such, the Fourth Circuit easily unreasonable performance by Elmore's trial counsel.

It's hard to ignore the parallels between Elmore and Adnan's case. Like Elmore's trial counsel, Gutierrez got to see the bulk of the State's case against Adnan at a first trial. Indeed, the first trial ended in a mistrial after trial counsel told the judge she hadn't looked at the State's cell tower exhibit because she didn't care about it. According to Judge Welch, it should have been clear that most of the State's case against Adnan was weak, with the incoming Leakin Park pings forming part of the crux of the case against him. Trial counsel was armed with the AT&T disclaimer, which stated that incoming pings are unreliable for determining location status.

In another case in which the cell tower pings weren't as important, trial counsel's failure to use the disclaimer might have been excused. The State will undoubtedly be able to find cases where courts rejected claims of ineffective assistance based on failure to rigorously cross-examine State's experts. But Elmore, a case from the Fourth Circuit (the circuit that includes Maryland), makes clear that trial counsel's obligations to cross-examine the State's experts under the reasonableness prong of the IAC test are directly tied to the importance of that expert testimony at trial. If the Leakin Park pings were part of the crux of the State's case against Adnan, Elmore almost certainly stands for the conclusion that trial counsel was unreasonable in failing to use the AT&T disclaimer. Conversely, if the Leakin Park pings were not part of the crux of the State's case against Adnan, the failure to contact Asia McClain was almost certainly prejudicial.



| Permalink


With no good way forward, the State’s options at this point are to either abandon ship (drop the charges) or turn around (offer a plea deal). That’s assuming there is no technicality from the PCR hearing or in the judge’s ruling that the State could cite as grounds for reversal. You don’t see anything in that, do you?

Posted by: streetwriter | Jul 6, 2016 9:15:06 AM

Perhaps you covered this, but why wouldn't the state argue that failure to cross-examine was not prejudicial because the records were correct, in much the same way that failure to talk to Asia was not prejudicial because she was not relevant to the state's case? Welch's ruling did not find that the records were wrong, just that they should have been questioned.

Posted by: joe | Jul 6, 2016 9:47:05 AM

@streetwriter: Offer a plea deal? Adnan would have to be out of his mind to accept a plea deal; and the state probably knows that. He's innocent and at this point, with all that was revealed in "Undisclosed", there is such a large quantity of evidence offering "reasonable doubt" that it would be almost impossible for the state to get a conviction. I just hope the state recognizes that, and doesn't become stubborn, as can sometimes happen when a prosecutor doesn't want to admit to the grave harm they've done to an innocent defendant.

Posted by: Rita | Jul 6, 2016 11:41:08 AM


Please review the different potential pleas that the state could offer Adnan and are any of them negotiable to include a financial settlement? I would love to see Adnan get out of prison a.s.a.p. with any plea and a $5 million settlement which would be a tremendous bargain for the state. He could then live a decent lifestyle for the next 60 years by turning it into a 60 year annuity and not have to worry about being turned down for employment due to any admissions in the plea.

But, for the (State – Prosecution – Detectives) to change their culture and behaviors, getting hit in the pocketbook talks loudest…way louder than ethics unfortunately.
For that reason, I’d prefer to see a retrial, with an innocent verdict. Then a lawsuit for compensation with a $100 million award to help wake up the justice system and invite even more scrutiny.

Posted by: Tim | Jul 6, 2016 12:53:49 PM

Rita, what is the large quantity of evidence offering reasonable doubt? Reasonable doubt is not a static concept. A jury has to be convinced that reasonable doubt exists -- it does not exist metaphysically. Undisclosed presented nothing that counters the state's case in which an eyewitness/accomplice, with the corroboration of other witness testimony and cell phone evidence, testified that Adnan did it. Maybe he didn't, but nothing they have presented is evidence to the contrary (Colin's bombshells notwithstanding). The cell phone evidence has not been dismissed in any sense -- in fact, comparing locations with outgoing calls, the incoming calls seem quite accurate.

Posted by: joe | Jul 6, 2016 2:07:24 PM

Rita: The State still holds the advantage at this point. It could easily offer a plea deal as a way to get itself out of a sticky situation, as described in the post and suggested in my comment. I would prefer to see the State jump ship and drop the charges; however, a plea deal seems (to me, anyway) the State's best option at this point. Whether Adnan accepts depends on various factors, including the kind of deal that's offered. And on that point, I agree with Tim: it would be interesting to read a summary of the plea deals that could be offered (Alford, nolo contendere, etc), what each entails, and how much negotiation could come into play.

EvidenceProf: I'm wondering about how dropped charges, a plea deal, or an acquittal in a retrial might affect Adnan's options with regard to redress for a wrongful conviction. How does it work now that his prior conviction has been vacated? He was convicted, but legally he was not. It seems to be a grey area to me, and it might be to others.

Posted by: streetwriter | Jul 6, 2016 2:34:08 PM

Tim, how are you so sure that Adnan is innocent? Even Colin has hedged. Surely he could be, but how are you so sure as to want him to have a financial windfall?

Posted by: joe | Jul 6, 2016 2:51:48 PM

Correct me if I'm wrong but I believe that all pleas exclude the possibility of a financial settlement. Which is why they are so appealing to the prosecution after a wrongful conviction. Yet another major problem with the system.

Posted by: Mike | Jul 6, 2016 3:48:56 PM

Colin, can you comment on the court's discussion of whether a Brady claim is a "fundamental right" for purposes of waiver? The opinion states that no controlling authority is directly on point, although Conyers v State strongly suggests it is a non-fundamental right. What is the logic to argue that Brady should be considered less fundamental than claims of ineffective assistance, right to a jury trial, guilty plea, self-incrimination privilege, and double jeopardy? (Also, it just seems strange to me that there is less caselaw on Brady than on some of those other, less common issues.) Is this an issue that Adnan would challenge on cross appeal?

Posted by: Dani | Jul 6, 2016 3:50:02 PM

I get very tired reading some of the reader comments these days.
I would say that this isn't the time, nor the place for "guilter acrobatics". Adnan have always claimed his innocense, but after his conviction their haven't been a way to keep arguing that in the system.
What is happening now is that Adnan is using his legal right to challange his conviction. That will naturally mean that he is in the same position as anyone with a conviction, guilty or innocent. Which one it is shouldn't matter much at this time. After all the state did choose to go forward with the evidence they had at the time when their only job was to make a case that had the potential to get a conviction that would hold up through the different stages in the system. A system put in place to create justice up to the point were any citizen risks to get wrongfully convicted. One of the most important aspects of this process has to be NOT to hang on to the prevous guilty verdict when flaws in a trial is brought up legally. We have to remember how that guilty verdict was the result of that specific trial and NOTHING else.

Posted by: Lars in Sweden | Jul 6, 2016 3:50:19 PM

Off topic, but now is it possible that until bail is decided, Adnan could be moved back to his original jail closer to home and away from the super-max?

Posted by: Lagaya1 | Jul 6, 2016 5:41:28 PM

Colin, thanks for bearing with me. My last offering is that it seems that Welch has said that the Asia testimony was not prejudicial because it would not have ruined the state's case. So how does the fax cover sheet ruin the state's case? Welch would have to assume that the "incoming calls" disclaimer meant what the defense says it means - which, by the way, is not proven and in fact common sense would say otherwise, based on the fact that adjacent outgoing calls pinged the same towers, and the only ones that didn't (e.g., helicopter call) was a voicemail or turned off phone? I guess what I'm saying is why would COSA let stand a the prejudice claim when it has not been established that the cover sheet negated the state's argument?

Posted by: Joe | Jul 6, 2016 9:09:10 PM

Interesting to me that the State's best argument was probably that they DID commit a Brady violation with the cell records, but that Adnan waived his right to challenge it because it isn't a "fundamental" right. Total technicality, but do you think that could have worked and any chance they can try to pivot now?

Posted by: Narizarielka | Jul 7, 2016 12:15:13 AM

streetwriter: I think the State’s best bet is to argue waiver, but I don’t know that they’ll have much luck. I’ll have a post today.

Joe: Judge Welch didn’t find that Asia was irrelevant. She was relevant because she contradicted the State’s theory of the case at trial. Judge Welch simply found that the jury still would have likely convicted based on the cell tower pings. Also, with regard to the cell tower claim, this recent case is instructive:


In the case, the SJC found that failure to show the possible issues with Shaken Baby Syndrome was IAC, even though it’s not clear it’s a faulty diagnosis.

Tim: Possible pleas are: (1) Alford: maintaining innocence but acknowledging the State has enough evidence to prove guilt; (2) nolo contendere: I’m not going to contest the charges against me; (3) guilty: I did it, or at least I’m legally admitting I did it.

joe: Judge Welch disagrees with you about reasonable doubt.

streetwriter: Under Maryland’s compensation statute, Maryland’s governor needs to find that Adnan is actually innocent.

Mike: Indeed. There’s always the possibility of new evidence pointing to an alternative suspect after a guilty plea, but, barring that there wouldn’t be any compensation.

Dani: I will address this a post today.

Lars: Agreed.

Joe: Again, look at the SJC case cited above.

Narizarielka: I don’t see a pivot now because Judge Welch already reached the factual conclusion that Gutierrez had the disclaimer.

Posted by: Colin Miller | Jul 7, 2016 6:28:14 AM

"the State might have to argue on appeal that the Leakin Park pings were not part of the crux of the State's case. "

Isn't this a finding of fact by Judge Welch, and hence not subject to change by COSA?

I'm confused.

Posted by: pluscachange | Jul 7, 2016 9:33:22 AM

pluscachange: The courts say that IAC is a mixed question of fact and law, and this finding is illustrative of that point. The L689 pings at 7:09 and 7:16 P.M. are facts. Jay’s testimony that these were calls from Jenn while Adnan and he were burying/about to bury Hae in Leakin Park is a fact. Hae’s body later being found in Leakin Park is a fact. Judge Welch’s conclusions that this confluence was the crux of the State’s case, meaning that failure to cross-examine AW on the AT&T disclaimer was prejudicial and that failure to contact Asia McClain was not prejudicial are legal conclusions.

Posted by: Colin Miller | Jul 7, 2016 10:07:47 AM

Thanks again Colin, the distinction I am making -- and I will leave it to you to tell me if it is a valid legal distinction -- is that with Asia, it would have been prejudicial because she stated concretely that she saw Adnan at a certain time, but the time was not the crux of the State's case. The disclaimer, on the other hand, was prejudicial because it was the crux of the State's case. My question is, on the one hand, you have a definite statement from a witness, and on the other, you have a text disclaimer, which may or may not challenge the State's "Crux." Do you see what I am getting at? Asia's statement is concrete, while the disclaimer has not been shown to mean anything, and Welch is assuming it is concrete to rule that it would have been prejudicial. Thanks in advance for your answer, and I will leave you to more important matters!

Posted by: joe | Jul 7, 2016 1:43:00 PM

joe: I see what you’re saying. Here’s my takeaway from Judge Welch’s opinion: The State claimed that the 2:36 P.M. call was the CAGMC, but Jay testified that he got the CAGMC at 3:45ish. Therefore, this was a relatively minor part of the State’s case, so even evidence that blows a huge hole in the State’s timeline – Asia saying she saw Adnan at the library until 2:40 P.M. – wouldn’t be enough to create the reasonable probability of a different outcome.

On the other hand, the confluence between Jay’s burial story and the Leakin Park pings was a relatively major part of the State’s case. It was, as Judge Welch said, “the crux.” Therefore, even evidence that merely raised some questions* about the reliability of incoming pings for determining location status – the AT&T disclaimer – was enough to create the reasonable probability of a different outcome. Notably, this was the same conclusion reached by the SJC in the Shaken Baby Syndrome case.

*Assuming that this is how you interpret Judge Welch’s opinion.

Posted by: Colin Miller | Jul 7, 2016 1:58:47 PM

Colin, sorry if this a bit off topic, but am I correct about the following, and if so, how much do you think they’ll affect the State’s decision to offer a plea or decline to reprosecute:

1- By the time a new trial could reasonably be expected to conclude, Adnan will have served (with good time) at least 75% of the maximum sentence – and more than 90% of what the sentencing guidelines would call for at the high end – for second-degree murder. So anything other than another first-degree murder conviction would be a pretty hollow victory.

2- Maryland’s current practice of categorically refusing to consider parole for prisoners sentenced to life in prison is constitutionally suspect, at best, when applied to juvenile offenders. So even another first-degree conviction might not end up meaning very much.

3- There’s a decent chance (perhaps contingent on the outcome of the presidential election) that the Supreme Court will, in the near future, hold that life sentences for juveniles are unconstitutional, even with the possibility of parole. So same as point 2.

Posted by: ggrzw | Jul 7, 2016 5:37:39 PM

I think the question of whether the disclaimer was prejudicial has to be based on what was presented at trial, not whether or not some folks think the disclaimer was an error by AT&T. To that end AW's affadavits made it clear that he, at least, isn't certain of his testimony without further research. Had he responded on cross after being shown the disclaimer in '00 like he does in his affadavits, I think that would have had an impact on any reasonable jury.

A question, Colin: Is Judge Welch's view of the "nexus" of Jay and the cell phone record at 7:09 and 7:16 being the "crux" of the state's case a finding of fact, or can COSA or CA make an independent decision on that?

Posted by: bacchys | Jul 7, 2016 8:01:47 PM

Colin, I see, thanks, that clears it up.

Posted by: Joe | Jul 7, 2016 8:53:15 PM

In the latest episode of Undisclosed, Susan Simpson reasserted her point that no reasonable person would have intuitively known that the fax cover sheet in the defense file referred to the cell pings in question because of the misleading way they were handed over to the defense with the Jamal? cell log records instead? Could the State use a similar argument against the incompetent assistance ruling and Judge Welch's any competent attorney with reading comprehension judgement in regard to the AW cross exam, not having to worry about it then being Brady instead, if the non fundamental  right to Brady means waiver is expired for it anyway?

Posted by: Katimax | Jul 8, 2016 1:03:16 PM

The State and those who belive their version can argue that the disclaimer doesn't disclaim anything all they want. The point of the PCR process was to determine if any of this would have changed the outcome back in 2000. It's not enough that the state says that the meaning of the disclaimer hasn't been proven. The states own expert witness firmly declares that he wouldn't have been able to place the phone near the park during the trial if he had been presented with the writing from that cover sheet. I get the feeling that those defending the states arguement often ends up with some version of: -"They would have found another expert willing to do just that." If that's true, I think that shows the bigger problem with this case.

Posted by: Lars in Sweden | Jul 12, 2016 8:55:39 AM

Post a comment