EvidenceProf Blog

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

Monday, August 22, 2016

A First Take on the State's Conditional Application for Limited Remand

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From the State's Conditional Application for Limited Remand


Today, the Maryland Attorney General filed a "Conditional Application for Limited Remand." That application is based upon the allegation that Asia McClain told two sisters back in 1999 that she was going to fabricate an alibi to assist Adnan Syed. Given that  Deputy Attorney General Thiru Vignarajah has a history of overpromising and underproducing in this case, there is reason to view this assertion with skepticism. After all, back in February, Vignarajah promised that

1. Attorney Billy Martin would testify that Cristina Gutierrez performed reasonably at Adnan's trial(s);

2. Officer Steve would testify that Adnan was not at the Woodlawn Public Library on January 13, 1999; and

3. FBI Special Agent would testify that the AT&T disclaimer did not apply to the Leakin Park pings.

Of course, Martin never testified, Officer Steve did not say anything close to what Vignarajah claimed he would say, and Officer Steve's testimony went over like the Hindenburg.

I can't tell whether Vignarajah is overpromising this time, but I can tell that he has underproduced with regard to precedent that would support yet another remand.

As the State notes in the language that led this post, the Court of Appeals of Maryland concluded in Alston v. State, 40 A.3d 1028 (Md. 2012), that only the defendant and not the State can file a motion to reopen a postconviction proceeding under Section 7-104 of the Maryland Code of Criminal Procedure. I previously posted about the Alston case in a prior post, and it arguably creates an insurmountable obstacle for the State. 

You might recall that the Court of Special Appeals of Maryland did not remand to Judge Welch along with a mandate that he receive Asia's testimony. Instead, it remanded so that Adnan could file a motion to reopen under Section 7-104, which, if grated, would allow him to present Asia's testimony and other evidence. That's the procedure set forth by Maryland's Uniform Postconviction Procedure Act.

Undeterred, the State has, in essence, asked the Court of Special Appeals of Maryland to circumvent this procedure and force its new evidence into the record.

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I wrote about the Jones v. State in this post. It's the case in which the Court of Appeals of Maryland interpreted Maryland Court Rule 8-131(a), which 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.

In other words, Rule 8-131(a) allows a party to belatedly raise a new issue that it initially failed to raise. As I noted in my post, the Court of Special Appeals of Maryland could thus use Rule 8-131(a) to find that Adnan was entitled to belatedly make his new cell tower/IAC claim, even if it finds that he waived that claim.

The interesting thing about Jones is that the Court of Special Appeals in that case actually applied Rule 8-131(a) so that the State could raise a new claim that it had initially failed to raise regarding whether a hearsay exception applied. According to the Court of Special Appeals:

The cases cited above elucidate for us that, in a criminal case, the State can be found to have waived a valid claim, even if the waiver leads to the reversal of a conviction. On the other hand, when the State fails to raise an important argument, an appellate court ordinarily has discretion to review the record or the trial judge's ruling in its effort to reach a sound result. Similarly, the appellate court generally retains discretion to consider an argument that is belatedly raised.

In light of the importance of the issue presented with regard to the co-conspirator exception, we have determined, in the exercise of our discretion, that a remand is appropriate, so that the parties will have an opportunity to fully litigate before the post-conviction court the question of whether Gutrick's statement was admissible under the co-conspirator exception to the hearsay rule. 

So, you can see the State's logic: COSA remanded in Jones, so it should also remand here. This argument, however, misses the point of both Rule 8-131(a) and Jones. The point is that the Rule and the case are all about excusing a party's failure to raise a legal argument, such as Gutierrez's failure to challenge the cell tower evidence. This is in large part because, as the Jones court noted, COSA "generally retains discretion to consider an argument that is belatedly raised." (emphasis added). 

The sisters' proposed testimony, however, is not a new argument, it is simply new evidence related to an existing argument that his already been litigated twice. And COSA retains no discretion to receive new evidence. As such, if new evidence is to be received, it has to be based upon a motion to reopen. But the State can't file a motion to reopen, meaning the State doesn't have a leg to stand on.



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Hail Mary...to nowhere? Game over.

Posted by: streetwriter | Aug 22, 2016 4:54:04 PM

But Judge Welch ruled in favor of the state on both items related to Asia.... What good would this do if they have already prevailed on the Asia issue? Is it a protective action in case the appellate court overturns Judge Welch's opinion?

Posted by: Kristi | Aug 22, 2016 6:26:05 PM

The State already knew about these claims yet didn't see fit to have it prepared on time. Tough luck. It show the ineptness of DAG T and the State.

Posted by: Mike | Aug 22, 2016 7:02:02 PM

Since the Asia testimony was not the basis for overturning the conviction, why is Asia's testimony even "a thing"?

Posted by: JLWhitaker | Aug 22, 2016 7:09:54 PM

Yes. I am missing something here. Why does it matter if there are witnesses against Asia's alibi (though I doubt they are as credible as Asia) if the judge basically threw out the Asia part of the argument? Or do they just want another chance to make arguments they screwed up the first time? Or plant new seeds of doubt for any future jury?

Posted by: Kris | Aug 22, 2016 7:28:15 PM


Posted by: debrarose427 | Aug 22, 2016 8:17:35 PM

Thank you Colin for always making it easy to understand the mumbo jumbo of legal talk. You are amazing!!

Posted by: Lauriemaye | Aug 22, 2016 8:39:33 PM

Yeah, what Kristi said.

Posted by: Jeff | Aug 22, 2016 10:24:50 PM

Colin – I’m curious if you think that other Attorney Generals in a similar situation would have filed the same type of Application or if this is on the extreme end of ridiculousness (as it appears to be for a non-lawyer who saw Thiru already make this argument at the PCR hearing). I am disappointed that Governors are not exercising their leadership and influence more to make this type of action stop. Governor Walker needs to have a serious heart-to-heart with Wisconsin AG Brad Schimel who said at a press conference today that there are a number of different directions the Dassey case can go and that they are looking at “what the likelihood of best success are for each one.” Governor Abbott should be demanding that Smith County, Texas DA Matt Bingham take action to address the mistakes and misconduct that took place during the Edward Ates investigation and trial. We should demand more from our leaders. Why aren’t Governors doing more?

Posted by: Jodi | Aug 22, 2016 11:21:49 PM

and judge Welch already ruled in the states favor on the asia issue... so... wtf is he asking for?

Posted by: Paul | Aug 22, 2016 11:26:06 PM

one way to delay the inevitable climb up to the highest appelate court is to keep restarting the process by remanding frivolously back to the lowest court several times. im gyuessing this is the new game plan

Posted by: Paul | Aug 22, 2016 11:28:34 PM

I think you mean Officer Chad's testimony went down like the Hindenburg (it did!)

No need to publish this comment :)

Posted by: Sue | Aug 23, 2016 1:34:54 AM

Didn't Mr. Vignarajah treat Asia as insignificant during the PCR? He sure seems awfully scared of her if he's going through so much trouble to discredit her after the fact. Colin, are we possibly seeing abandonment of the State's reliance on the Jay/pings corroboration as the "smoking gun." I mean, Chad Fitzgerald was a colossal blunder at the PCR, and Thiru isn't fighting nearly as hard against the one part of Judge Welch's ruling that was affirmed.

Posted by: tim | Aug 23, 2016 1:55:52 AM

It does appear that the state is abandoning its Jay's stories/cell tower pings argument, doesn't it? Of course, what option do they have? They know that neither of those approaches will stand up anymore. Their only option is to try desperately, frantically grasping at straws, to discredit Asia and delay this is long as possible. Is that what it looks like to you?

Posted by: Eric Wolff | Aug 23, 2016 3:35:42 AM

streetwriter: We’ll see. I don’t think there’s any support for the remand.

Kristi: Adnan has cross-appealed on the Asia/IAC issue, so the Court of Special Appeals will in all likelihood be addressing the issue.

Mike: Right. The State has no ability to file a motion to reopen.

JLWhitaker: Adnan has cross-appealed, so her testimony could be a thing.

Kris: I think it’s a PR thing more than anything else, but I imagine that COSA will be considering the Asia/IAC issue.

debrarose: It will be checkmate if COSA denies the State leave to appeal.

Lauriemaye: No problem.

Jodi: I think that some State AG’s office would have done the same thing while other would have called off the horses.

tim: Thiru’s treatment of Asia has been very inconsistent.

Eric: They have separately appealed the cell tower ruling, and they have to, because it alone is grounds for a new trial.

Posted by: Colin | Aug 23, 2016 4:08:07 AM

You said on August 11th that another document would be filed within the week. Were you referring to this filing, or a response by Adnan's counsel to the State's ALA? I can't help but want to see you and Justin dismantle the State's arguments.

Posted by: Kristin | Aug 23, 2016 5:12:15 AM

A concern I have about these two sisters comes from the fact that they only came forward after the tremendous amount of publicity this case has received. While publicity can be a good thing in uncovering new evidence, it can also be a negative as people try to gain some of the spotlight for themselves.
If the state is going to hedge any bets on these ladies, they need to tread lightly and make sure these witnesses are actually witnesses and not glory hounds

Posted by: Josie Smelko | Aug 23, 2016 6:08:07 AM


Only Colin can say if Asia's testimony could still be relevant or useful to the defense based on how each side has tried to use/not use it.

To your point of "He sure seems awfully scared of her if he's...." any fear he might have had must have vanished with the publication of Asia's book. There is no conceivable way in which the publication of that book reinforces her status as a credible alibi. If the DAG read that book, he leapt for joy.

Posted by: Ken Florian | Aug 23, 2016 7:29:34 AM

Colin when will adnan's lawyers file their formal response to the state's leave for appeal?

Posted by: Teeter | Aug 23, 2016 8:21:59 AM


What about Asia's book do you think damages her credibility? She told the exact same story there that she's been telling for 17 years. What could the problem be?

Posted by: Eric Wolff | Aug 23, 2016 9:02:20 AM

This is a bit off-topic: Has anyone located/talked with Asia's then-boyfriend and his friend who picked her up at the library? Didn't those guys see her talking with Adnan?

Posted by: Debbie | Aug 23, 2016 9:26:26 AM

Ken--her book was entirely written and released following her participation in the case. How exactly do you see a judge reasoning that because an alibi witness in a high profile case decides to write a memoir AFTER her participation in the case has concluded--all'st while not contradicting her story in any way--that she is now a compromised witness?

Not to mention that the fact finding portion of this was a role exclusively held by Judge Welch, in which he determined her to be credible, has also concluded. Now that the remaining courts must take the fact finding made by judge Welch at face value, and are only addressing legal arguments based on those sets of facts, please walk me through your logic to reach such a conclusion.

I am... Baffled by your suggestion. Please elucidate.

Posted by: Paul | Aug 23, 2016 10:06:21 AM

Also, is this new document public? I didn't see a link in Colin's post.

Posted by: Kristin | Aug 23, 2016 10:18:54 AM


I haven't read Asia's book. What in it is so damaging? I understand she expressed doubt in Adnan's factual innocence, but I haven't heard anything that would have her considered less than credible. Would you mind elaborating on the contents of her book that make her less than credible?

Posted by: tim | Aug 23, 2016 11:46:32 AM


Where to start?

Below are a few snippets. When taken out of context from the entire book no single item I relate is especially remarkable. Together they reveal a person that I believe the DAG would love to get back on the stand. All quotes verbatim from the book.

- Within the first couple of chapters she tells us she lied to Woodlawn high school about her internship: "Plus, I had conveniently failed to report this…."

- "If you haven't caught on by now I have a very active imagination."

- "Sarah answered the phone and on the fly I concocted a story and lied…."

- "…I am most often the only one who remembers a particular event and its details the best."

- "My memory is fairly good but not that good."

- "Thiru attempted to exploit my memory of the weather on January 13th 1999. Sadly, for him, he was unsuccessful because there was no specific memory to be had."

I am no Colin Miller, merely and interested observer.

Ken Florian

Posted by: Ken Florian | Aug 23, 2016 1:31:16 PM

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