EvidenceProf Blog

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

Thursday, July 14, 2016

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.



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Hi Colin, thanks for the summary. Makes it very easy to understand. In point 4, I assume you mean June 6 2010 and not 2000, right?

Posted by: OwGlyn | Jul 14, 2016 6:40:05 AM

Is there a possible third outcome? That he did waive and not excusing it?

Posted by: Abby C | Jul 14, 2016 7:23:59 AM

Colin, Isn't the fact that the version of the fax cover desclaimer that the defence had came from another set of phone records a factor at all in this issue?

Posted by: Lars in Sweden | Jul 14, 2016 7:49:44 AM

Wasn't there some point about the prosecution bringing up the cell phone evidence in the PCR proceedings and thus "opening the door"? Would that affect their ability to argue waiver?

Posted by: Julie | Jul 14, 2016 8:41:50 AM

Or the court could rule that Adnan did waive his rights and not excuse it either?

Posted by: Ben | Jul 14, 2016 8:01:43 PM

Curious: why did Adnan & his legal advisors wait a full 10 years before filing his initial PCR petition? Am I reading it correctly that this was turned in just days before the eligibility window was to close? If so, what was the thinking on this?

Posted by: VanishingPoint | Jul 14, 2016 9:06:49 PM

OwGlyn: Yes, thanks. I have now corrected it.

Abby C and Ben: Yes, the third option would be that there is no waiver or excuse, meaning COSA would reverse Judge Welch’s order granting a new trial (unless COSA granted relief on the Asia issue).

Lars: Yes, I think that strengthens the case for non-waiver or excuse.

Julie: Yes, I think there’s a good argument that the State opened the door to the claim by saying they could have switched the “come and get me” call to 3:15.

VanishingPoint: I don’t have any inside information. Possibly a combination of cost, hoping to uncover new evidence, etc.

Posted by: Colin Miller | Jul 15, 2016 1:30:45 PM

I've been curious about why it took 10 years to file for the first PCR, too, but I suspect that will be covered in Rabia's book that's about to come out. (And I hope Rabia doesn't read this and suddenly think, "oh, crap...." ;-) )

Posted by: Eric Wolff | Jul 17, 2016 6:11:36 AM

RE: 10 yrs. before first PCR--I believe I heard Rabia say that when she found out about Asia's letters (right after Adnan's conviction), she was informed that no new evidence could be considered for 10 years. So they had to wait.

Posted by: cmclain | Jul 18, 2016 8:42:06 AM

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