EvidenceProf Blog

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

Saturday, July 2, 2016

The State Can't Present Any New Evidence/Witnesses Regarding the AT&T Disclaimer

In response to Thursday's post, a commenter, Ben, asked, where the State could present new evidence or witnesses regarding the AT&T disclaimer at the hearing before the Court of Special Appeals of Maryland. My response was that

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.


The Court of Special Appeals of Maryland is an appellate court that cannot received new evidence. This can be illustrated through Asia's new affidavit. On January 20, 2015, Adnan filed a Supplement to Application for Leave to Appeal the Denial of Post-Conviction Relief and Request for Remand based upon Asia's new affidavit. On May 18, 2015, the Court of Special Appeals remanded the case to the Baltimore City Circuit Court so that Adnan could file a motion to reopen. According to the Court of Special Appeals,

because [Asia's new] affidavit was not presented to the circuit court during Syed's post-conviction proceedings, as it did not then exist, it is not a part of the record and, therefore, this Court may not properly consider it in addressing the merits of this appeal.

In other words, only the Circuit Court can receive evidence; the Court of Special Appeals merely hears arguments.

Now, this might leave you wondering: If the State found new evidence concerning the AT&T disclaimer tomorrow, why couldn't they similarly ask the Court of Special Appeals to remand so that they could file a motion to reopen and present this new evidence?

I addressed this in a post last October. Section 7-104 of the Maryland Code of Criminal Procedure, which states that

The court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.

This is the the Section that Judge Welch used to reopen Adnan's postconviction proceeding so that he could present evidence regarding Asia and the cell tower pings. As my prior post noted, however, the Court of Appeals of Maryland concluded in Alston v. State, 40 A.3d 1028 (Md. 2012), that

Although § 7-104 itself does not contain language specifying who may file an application to reopen a previously concluded postconviction proceeding, the statute as a whole and the legislative history of    § 7-104 make it clear that only a “convicted person” may bring either a postconviction proceeding or a petition to reopen a postconviction proceeding.

Therefore, in Maryland, only a defendant can move to reopen a postconviction proceeding. The State cannot do so. And that is why the State would not be able to present new evidence regarding the AT&T disclaimer.



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Thanks - clear and understandable as always. What do you think is the State most likely to do next? Agree a plea bargain? Surely it would be too costly and risky to drag on with the appellate option?

Posted by: Sue MG | Jul 2, 2016 4:32:00 AM

Is there a universe in which the state could appeal the IAC finding by saying 'actually, we accept that we misleadingly handed over the documents - but no Brady as the appeal right has been waived'

Posted by: Cupcake | Jul 2, 2016 4:41:59 AM

Thank you for walking us through this process. I appreciate all of your time and efforts.

Posted by: Debra Fulton | Jul 2, 2016 4:43:57 AM

@Cupcake --

That is so clever!

IANAL, but my guess would be that they could in fact argue that CG could not have been expected to make the connection, particularly since Thiru himself originally argued that Exhibit 31 was not a subscriber activity report.

But that's utterly uninformed speculation, so it's not actually an answer. It's just a response.

Good question.

Posted by: pluscachange | Jul 2, 2016 9:06:57 AM

Colin, you stated the following about Wearry
"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."

My question: If this happens, does the judge have to discuss Wearry in his response, or can he just 'cherry pick' some other case which is contradictory to Wearry? Or would he then also have to explain why he thinks it fits better than Wearry. Thanks for answering our questions, it's very interesting!

Posted by: Martin | Jul 2, 2016 10:11:18 AM

@pluscachange @Colin
Hmm… where does a factual finding end and a legal finding begin? Has the judge already found (factually) that the document really was a subscriber activity report (due to it being titled ‘subscriber activity report’), meaning the state can’t really argue that again (because they can only argue legal issues on appeal)? Or can they still say ‘the judge has totally misinterpreted those 3 words as a title, they’re really just 3 unrelated words mistakenly unseparated by punctuation’ or ‘we accidentally photocopied a totally unrelated title onto this definitely-not-a-subscriber-activity-report page’ and thus challenge on these grounds?
Could they instead say something like ‘whilst we accept it’s a subscriber activity report, we don’t accept that the incoming calls were central to the case (Jay’s testimony and outgoing were enough; cite case about centrality) and so the prejudice prong wasn’t really met’? Is this a legal argument or is it still factual, because the judge has already found the incoming pings were central? (And I guess they wouldn’t really argue this, because it would obviously destroy the Asia IAC denial.) What would a legal argument look like?

Posted by: Cupcake | Jul 2, 2016 11:46:49 AM

I am concerned by the logic used by Judge Welch in denying the second prong of the Asia alibi.

What he said is that given the inconsistencies in the State's case presented at trial, the alibi would not have made much difference.  This means that:

If the State had a strong case, which was consistent, the alibi would have had a bearing on the outcome.

However, as the State had a weak case, the alibi didn't matter.

Yet a weak case is the type of case where a miscarriage of justice is more likely to have occurred.

What are your thoughts on this dichotomy?

Posted by: Ricardo Fiusco | Jul 2, 2016 11:57:58 PM


This is a bit off topic, but will we ever know who collected the reward money for the crime stoppers tip?

This question has always egged me, and would this finally come out at a new trial?

If the state holds this information, wouldn't this be pertinent information that Adnan should have at a new trial. So that Justin Brown may present evidence that another suspect may have committed the crime. Perhaps forged work records as well may be important.

Posted by: Gavin | Jul 3, 2016 8:22:21 AM

Could Jay refuse to testify again? His plea bargain has already been fulfilled, right? They can't still charge him for murder in connection with this crime if he was already convicted as an accessory, can they?

Posted by: ladysleuth22 | Jul 4, 2016 10:52:19 AM

Hi Colin,
If the state offers an Alford plea, is there a way that Adnan can refuse and demand a re-trial from the state? Or do the state hold all the cards on that front?

Posted by: MT | Jul 5, 2016 3:03:12 AM

Sue MG: I think the State’s next step is to appeal, assuming they think they could win on appeal. I don’t know enough about Maryland precedent on waiver to be able to say.

Cupcake: They could make the argument, but Judge Welch has already reached the factual conclusion that the disclaimer was turned over, so COSA is unlikely to buy that argument.

Debra Fulton: Thanks.

Martin: COSA wouldn’t have to mention Wearry, but it is a U.S. Supreme Court case that seems directly on point.

Cucpake: Judge Welch’s conclusion that Exhibit 31 was a Subscriber Activity Report is a factual conclusion, subject to abuse of discretion review.

Ricardo Fiusco: I agree with you. When deciding prejudice, a judge typically looks at the gravity of the error and the overall strength of the case against the defendant. The weaker the case, the easier it is to prove prejudice.

Gavin: If there’s a retrial, this information will be subpoenaed.

Ladysleuth: (1) Pursuant to Jay’s plea deal, he has to testify at any trial of Adnan for murdering Hae Min Lee. (2) Murder and accessory after the fact are each crimes that requires the prosecution to prove a distinct element. As such, a conviction for accessory after the fact does not preclude a subsequent prosecution for murder under the Double Jeopardy Clause.

MT: Adnan could refuse an Alford Plea and demand a new trial of the dropping of the charges against him.

Posted by: Colin Miller | Jul 5, 2016 5:39:20 PM

Colin, kind of related to Ricardo’s post above, could you address this: The judge said that Asia’s testimony wouldn’t have affected the outcome of the trial, because she couldn’t speak to the “nexus” of Jay’s testimony and the [incoming] Leakin Park pings as they related to the alleged burial. But then he says, basically, those cell phone pings were crap. Can you please explain to the non-legal community this seeming lack of logic?

Posted by: Beth | Jul 6, 2016 5:42:33 AM

Beth: Think of Judge Welch’s opinion in terms of an appeal. Judge Welch is saying, “If the State wins on the cell tower issue on appeal, Adnan shouldn’t win on the Asia issue.” In other words, he’s saying that Asia testifying at Adnan’s trial in 2000 wouldn’t have changed the outcome, assuming that the jury had been presented with the same cell tower evidence/testimony.

Posted by: Colin Miller | Jul 6, 2016 7:43:03 AM

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