Saturday, July 2, 2016
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?
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.