EvidenceProf Blog

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. 

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Explaining the State's Latest Filing in the Adnan Syed Appeal

As reported by Justin Fenton reported yesterday,

Maryland's attorney general intends to fight the ruling that granted a new trial for "Serial" podcast subject Adnan Syed, according to a document filed last week in the case.

The state formally notified the court of its intentions Thursday and asked that any new trial proceedings be halted as that process plays out. An appeal could push the possibility of a retrial back several months or longer, experts have said.

A spokeswoman for the attorney general's office declined to comment on the new filing, which is not the appeal itself. The office had previously hinted at its intent to appeal and has until next Monday to file it.

So, what does this mean?

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Stealing Thunder: Ohler v. United States & Last Week's Undisclosed Addendum

In last week's Addendum episode of the Undisclosed Podcast, I mentioned the Supreme Court's opinion in Ohler v. United States, 529 U.S. 753 (2000), which creates a sort-of Hobson's Choice for defense counsel. So, what's the significance of the Ohler opinion? 

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When in Rome: Our Trip to Rome, Batson Claims, and the More Perfect Podcast

Last night, we premiered the second episode of our second season of the Undisclosed Podcast: "In Situ," which is Latin for "on site" or "in position." It was about the trip that Susan, Rabia, and I took to Rome, Georgia to investigate the Joey Watkins case. As Rabia said in our first episode, Rome, Georgia is a "little big town." It has a population of about 36,000, and it is basically due west of Columbia, South Carolina, where I live and teach. 

Rome has a cool little downtown area that it describes as "[t]he Largest Victorian Era District in the state...filled with antiques, collectibles, gifts, furniture, books, jewelry and much more!" We had a couple of great meals there, at the Harvest Moon Cafe and Jamwich, which finds unique ways to work jam into all of its menu options.

Rome also plays a part in an important recent Supreme Court case.

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'Serial': How Adnan Syed Could Win His Retrial

Yesterday, Amelia McDonell-Parry published a great article in Rolling Stone titled, "'Serial': How Adnan Syed Could Win His Retrial." She interviewed me for the article, which covers a number of topics such as CrimeStopppers and lividity.

-CM

"[A]s a matter of law, the house is haunted" -- The Ghostbusters Case & Caveat Emptor

"Ghostbusters" was one of the defining movies of my childhood. I can still remember gong to a drive-in movie theater to see it in 1984. Bill Murray was rightfully the best part of the movie for most people, but, ever since Boba Fett, I always liked the bad guy. So, in "Ghostbusters", it was William Atherton's EPA agent I loved to hate. It was the first in a series of classic heels turns by Atherton.*

Soon thereafter, I got the video game for my Commodore 64. I often spent my Saturday mornings playing the game and watching "The Real Ghostbusters" animated series on TV. In 1989, Ghostbusters II was released. It wasn't as good as the original, but it still had some great scenes, including this one in the courtroom. 

Now, 27 years later, Paul Feig, who captured childhood in the '80s so well in "Freaks and Geeks," has created an entirely new version of "Ghostbusters," with the terrific cast of Kristen Wiig, Melissa McCarthy, Kate McKinnon, and Leslie Jones. If this reboot is successful, we can expect to the ghostbusters being part of the conversation for generations to come. Interestingly, they are already part of the conversation for many law students and judges. 

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Interesting Study on the Illusion of Truth Effect and Eyewitness Suggestibility

For those of you interested by the discussion of the illusion of truth effect in Episode 1 of Season 2 of Undisclosed, here's an interesting study about the illusion of truth effect and eyewitness suggestibility: (Download Illusion of Truth Study). Here is the abstract:

The purpose of the present study was to extend research on repetition and illusory truth to the domain of eyewitness suggestibility. Specifically, we assessed whether repeated exposure to suggestion, relative to a single exposure, facilitates the creation of false memory for suggested events. After viewing a video of a burglary, subjects were asked questions containing misleading suggestions, some of which were repeated. Their memory for the source of the suggestions was tested. The results show that following repeated (relative to a single) exposure to suggestion, subjects were more likely to (a) claim with high confidence that they remembered the suggested events from the video (Experiment 1) and (b) claim that they consciously recollected witnessing the suggested events (Experiment 2). The effects of repeated exposure were highly reliable and were observed over retention intervals as long as 1 week.

-CM

The Cliffs Notes Version of Yesterday's Post on Excusing Waiver in the Adnan Syed Appeal

Last night's post seems to have caused some confusion, so here's the Cliffs Notes version:

1. Adnan had until June 6, 2010 to bring a claim that he received ineffective assistance of counsel based upon his trial counsel's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert;

2. In his initial PCR petition, filed on May 28, 2010, Adnan did not raise a claim of ineffective assistance of counsel based upon his trial counsel's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert;

3. Adnan first raised the cell tower claim in a Supplement filed on August 24, 2015;

4. Judge Welch could have ruled that Adnan's failure to raise the cell tower claim by June 6, 2010 2000 resulted in waiver of that claim, meaning that Judge Welch would not consider the merits of that claim;

5. Instead, Judge Welch ruled that Adnan did not knowingly and intelligently waive the cell tower claim, meaning that (a) there was no actual waiver; (b) Judge Welch could consider the merits of the cell tower claim; (c) Judge Welch was able to grant Adnan a new trial based on the cell tower issue;

6. If the State appeals to the Court of Special Appeals of Maryland, that court could agree that Adnan did not waive the cell tower issue and affirm Judge Welch's order granting Adnan a new trial;

7. Alternatively, and this was the point of yesterday's post, the Court of Special Appeals of Maryland could disagree with Judge Welch, conclude that Adnan did waive his cell tower claim, and yet, pursuant to Maryland Court Rule 8-131(a), excuse Adnan's waiver, and affirm Judge Welch's order granting Adnan a new trial.

Put more simply, the Court of Special Appeals can affirm Judge Welch's order granting Adnan a new trial on the cell tower claim by either (1) agreeing with Judge Welch that Adnan did not waive the cell tower claim; or (2) finding that Adnan did waive the cell tower claim but excusing this waiver.

-CM

The Court of Special Appeals Has Authority to Excuse Any Possible Waiver of Adnan's IAC/Cell Tower Claim

Maryland Court Rule 8-131(a) provides that

The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

So, what does this Rule mean? It means that the Court of Special Appeals of Maryland can affirm Judge Welch's order granting Adnan a new trial even if it finds that he waived his ineffective assistance of counsel claim regarding the AT&T disclaimer. 

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Undisclosed, S2, E1: The Illusion of Truth Effect & The Rule Against Hearsay

Last night, we premiered the first episode of the Second Season of Undisclosed: "The Panama City Incident." In the episode, we talked about the illusion of truth effect and how it led the residents of Rome, Georgia to believe that Joey Watkins had shot at Isaac Dawkins in July 1999. According to Wikipedia, the illusion of truth (or illusory truth effect is)

the tendency to believe information to be correct because we are exposed to it more often. It was first discovered in 1977 at Villanova University and Temple University. We see some misconceptions or exaggerations frequently in our daily lives, and thus have a tendency to believe them to be true because of our recurrent exposure.

This effect has an important relationship to the rule against hearsay.

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Does Court of Appeals Precedent Imply It's Futile to Reverse Judge Welch's Waiver Ruling?

The opinion of the Court of Appeals of Maryland in Jourdan v. State, 341 A.2d 388 (Md. 1975), is another important one on the issue of knowing and intelligent waiver of fundamental rights. As I noted last week, Judge Welch found that Adnan did not knowingly and intelligently waive his IAC/cell tower claim by failing to raise it in his first postconviction relief petitions. Jourdan seems to stand for the proposition that there would be no point in the Court of Special Appeals or Court of Appeals reversing this ruling.

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Was Judge Welch Correct That the Brady Right is Not a Fundamental Right?

In Judge's Welch's opinion granting Adnan a new trial, he noted the dichotomy between fundamental and non-fundamental rights:

Because Maryland has found that the right to the effective assistance of counsel is "fundamental," Judge Welch was able to find that Adnan's prior failure to raise the AT&T disclaimer issue was not waived because Adnan did not "intelligently and knowingly" fail to raise the issue in his first PCR petition. Conversely, because Judge Welch concluded that an alleged Brady violation does not relate to a fundamental right, he also concluded that Adnan had waived his Brady claim because he had the opportunity to raise the claim in his first PCR petition; under this analysis, it was irrelevant that Adnan didn't "intelligently and knowingly" fail to raise the Brady claim. But is this conclusion correct? 

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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.

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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.

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Does Judge Welch's Opinion Leave the State With Any Workable Theory of Adnan's Guilt?

"Had trial counsel investigated the potential alibi witness, she could have undermined a theory premised upon inconsistent facts. The potential alibi witness, however, would not have undermined the crux of the State's case: that Petitioner buried the victim's body in Leakin Park at approximately 7:00 P.M. on January 13, 1999." Excerpt from Judge Martin P. Welch's opinion granting Adnan Syed a new trial.

In yesterday's episode of Undisclosed, I repeated the claim I made in a blog post last week: Pursuant to the Supreme Court's recent opinion in Wearry v. Cain, evidence "that [the defendant] may have been involved in events related to the murder after it occurred" might support a conviction for being an accessory after the fact but cannot support a conviction for murder. Therefore, evidence of what Adnan may have been doing at approximately 7:00 P.M. cannot support his conviction for murder, and there are good reasons to believe that the Court of Special Appeals of Maryland (COSA) will use Wearry to find that failure to contact Asia McClain was prejudicial, assuming that there is even an appeal.*

Apart from Wearry, however, in this post I will really dig into Judge Welch's opinion and show how it demonstrates that Asia wouldn't merely have undermined the theory presented by the State at trial; she would have undermined any theory that the State could have presented at trial.

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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.

Why? 

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A New Trial in Three Steps

A new trial in three steps:

______________________

Step One: May 6, 2015: The State files its Brief of Appellee. At trial, the State had claimed that the 2:36 P.M. call on Adnan's call log was Adnan calling Jay from Best Buy after having killed Hae Min Lee. On appeal, the defense had thus claimed that Asia McClain, who saw Adnan at the library until 2:40 P.M., provided a complete alibi. In its brief, the State responded with the now infamous footnote 8, which states in pertinent part:

This argument was completely unnecessary. The State could have simply deemphasized the importance of the 2:36 P.M. timeline or claimed that Asia's testimony wouldn't have been enough to change the jury's verdict. Instead, the State decided to advance a new argument on appeal, an argument that piqued the interest of defense counsel. 

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