EvidenceProf Blog

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

Tuesday, August 2, 2016

The State's Application for Leave to Appeal in the Adnan Syed Case, Take 1

Yesterday, the State of Maryland filed its Application for Leave to Appeal (ALA) in the Adnan Syed case. I will have limited time to write about the ALA this week, so expect posts (and responses to comments) to be scattershot. Here's take one:

The State fell into the prejudice trap.

As I noted in a prior post, Judge Welch's denied Adnan a new trial on his Asia/IAC claim because 

The potential alibi witness...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 its ALA, the State began by making the following argument about prejudice:

The post-conviction court was wrong to conclude that the cell site testimony was the linchpin of the State’s case. That faulty premise misunderstands the many other ways in which the cellphone records were used, discounts the overwhelming evidence established by a combination of documentary evidence and witnesses — lay and expert, students and teachers, family and friends — and adopts an approach to prejudice that ignores how, in this case, interlocking evidence was mutually corroborative. It also ignores that the cell site expert testimony that the prosecution presented was limited, thanks in part to Gutierrez’s relentless objections and demands for caution, to being offered as corroboration, i.e., only to show that the cell site data was consistent with the testimony of others.

The post-conviction court neglects the many other ways that Syed’s phone records, fully separate from cell site information, yielded critical corroboration of the State’s witnesses. The testimony of the witnesses confirmed one another — and were reinforced by the time, duration, sequence, and dialed numbers listed on Syed’s cellphone records — fully separate from Waranowitz’s testimony concerning which cell sites were accessed when he conducted test calls from certain locations of significance. The call date, time, duration, sequence of calls all complemented the witnesses. Thus, the witness testimony also reinforced the reliability of the call records, even if Gutierrez had succeeded in casting some doubt on the integrity of some calls. Indeed, the consistency between the records and the witness accounts showed that the phone was operating as expected, and helped establish whether Wilds or Syed was in possession of the phone at various times that day. (emphasis added)

Yep. The State directly attacked the one reason why Judge Welch denied relief on the Asia/IAC issue. In the next paragraph, you can almost see the State trying to walk back its prejudice argument a bit, but it ends up digging itself a deeper hole:

To be sure, Waranowitz’s testimony concerning cell site location data supplied a valuable layer of additional corroboration. Yet the cell site location testimony cannot be viewed in a vacuum. With respect to the two incoming calls at 7:09 and 7:16 p.m., deemed the “foundation” of the State’s case, the post-conviction court focused solely on Wilds testimony, the call records, and the cell site location....The court appears gave insufficient weight to the complementary testimony of Jennifer Pusateri, who told the jury how she called Syed’s number in response to a page from Wilds, which is also confirmed by the Syed’s records. She recounted how, as stated above, the person who answered stated that Wilds was “busy” and would call her back, an account entirely consistent with Wilds’ recollection of those critical calls. More importantly, the court failed to view those calls in conjunction with the testimony the State produced regarding all of the other calls that day. The significance of each individual call was minor given the overwhelming weight of the testimony and calls taken as a whole. Accordingly, the post-conviction court erred in reaching the conclusion that counsel’s performance, assuming arguendo it was defective, was prejudicial.

In other words, the 7:09 and 7:16 P.M. pings were not the linchpin of the State's case but instead need to be viewed "in conjunction with the testimony the State produced regarding all of the other calls that day." Such as Jay's testimony about the "come and get me" call. Which he claimed took place after 3:40 P.M. Which Judge Welch found had to be the 2:36 P.M. call based on the entirety of the State's case. Which is directly contradicted by Asia's testimony that she saw Adnan at the library until 2:40 P.M.. Which is why failure to contact Asia was prejudicial, necessitating a new trial.


Perhaps anticipating this, the State 

ask[ed] th[e] Court, in the interest of justice and in a separate application, for leave to appeal and for a limited remand under Section 7-109(b)(3)(ii)(2) solely to incorporate into the record testimony from two of McClain’s classmates (who are sisters), who state inter alia that shortly after Syed’s arrest, one of the sisters got into a heated argument with McClain who said she was going to lie to help Syed avoid a conviction.

Of course, the State did this after arguing in its ALA that motions to reopen postconviction proceedings should rarely be granted and only in circumstances such as the alleged State misconduct by Kevin Urick with regard to Asia McClain, meaning that the cell tower/IAC claim should not have been heard. And yet, the State then claimed that it should be allowed to reopen the postconviction proceedings to present supposed testimony by Asia's classmates despite no apparent misconduct by the defense or reason other than lack of due diligence for failing to present this testimony earlier.*

Here was the response to this argument by Erica Suter, an expert in Maryland appellate law:

Screen Shot 2016-08-02 at 6.40.16 AM

Even worse, the State has again backed itself into a corner. Ostensibly, the State's claim is that it should be forgiven for missing its deadline in presenting this testimony, and yet a huge part of its claim on appeal is that Adnan, a layperson, waived his argument on the IAC/cell tower issue. If there are oral arguments in this case, the State is going to have a really tough time avoiding being internally inconsistent.


*The State's supplemental motion for remand is not attached to the publicly available ALA.



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Thanks for the analysis prof! Have been refreshing your blog incessantly since hearing about the ALA!

Posted by: KM in OZ | Aug 2, 2016 4:39:59 AM

1. Didn't the State in a sense waive the ability to press the Asia issue when they neglected to do so at the PCR hearing?

2. Can Syed use Urick's statements to the Intercept that the Leakin Park calls were the core of its case to rebut the State's argument that the calls weren't that critical?

3. I'd like your thoughts on how COSA might apply some of the case law here since the State seems to have finally found some to cite to.

Posted by: Absurdamerica | Aug 2, 2016 6:47:50 AM

Its all playing out as you had predicted in your earlier posts. They are cornered no matter what they do.

"... If the law and the facts are both against you, pound the table and yell like hell."

The States's ALA sounds a lot like pounding the table, and not much else.

P.S. You make me wanna go to law school and be your student. I absolutely admire your legal mind.

Posted by: Nick | Aug 2, 2016 6:52:28 AM

With regard to the new evidence re: Asia, don't you think it is likely that this information only came to the State's attention after the PCR hearing concluded and Asia started appearing all over the news to market her book? When the State is forced to defend against an alibi witness 17 years later, it is very difficult for it to investigate and interview potential impeachment witnesses. In 1999/2000, it could have sent investigators to Woodlawn to ask about Asia's story. Now, all it can do is interview the people closest to her back then and the people she identified in her letters. I would be extremely surprised if these witnesses didn't come forward after it was too late. I agree that it is highly unlikely that the State will be given a second bite at the apple, but given that Adnan was permitted to relitigate his PCR challenge, I don't blame them for trying.

Posted by: Jane | Aug 2, 2016 6:56:45 AM

Being that MD wants to appeal based on an argument that includes their general timeline, will this allow an opportunity to argue the lividity evidence?

Posted by: Lorien | Aug 2, 2016 6:58:46 AM

It's like they think they're setting a trap up for the court. "Aha! They'll have to deny us on The Sisters issue, and then in order to remain internally consistent, the court will have to agree with us on our procedural arguments against the defense. And *then* we'll argue that the cellphone evidence didn't actually matter, and even though that means Asia should have mattered, the defense will be too scared of The Sisters to spring Judge Welch's trap. It's perfect!"

It's the Dial M for Murder of brief writing. Too cute by half.

Posted by: Susan | Aug 2, 2016 7:05:03 AM

Jane wrote:

"... and Asia started appearing all over the news to market her book..."

That is some fine, fine hyperbole.

Posted by: Michael | Aug 2, 2016 7:36:27 AM

Susan: It's when they think they're being clever that they've lost the most so far in this process. You'd think they'd learn?

Posted by: Absurdamerica | Aug 2, 2016 8:20:15 AM

@Jane --

She did a very limited amount of press, unsurprisingly, considering that she was eight months pregnant. And the state had two years to locate witnesses who could gainsay Asia prior to the first PCR, as well as another eleven months between the remand and the second one. They didn't bother and now they're stuck with it.

They also have no one to thank for it but Urick that the defense was not in the same boat.

Posted by: pluscachange | Aug 2, 2016 9:00:53 AM

After the disingenuous and specious tactics Thiru Vignarajah employed, I do not believe for one moment the state has any credible evidence that Asia was asked to lie.

Besides, the whole idea that Adnan's plan was to get an acquaintance to lie to give him an alibi for a few minutes – a few minutes, mind, which only became important during trial once the prosecution proclaimed the murder happened just before 2:36. A theory which, the Court and everyone else now knows, did not match the state’s only eyewitness. Meaning, if Jay was telling the truth-ish about what happened and when, why would a guilty Adnan know in advance a fake alibi for 2:36 PM would be important? --

So, anyway, the State is asking the Court, and us, to believe they think Adnan’s plan was to

1. get this witness to lie about a few minutes of alibi, but
2. NOT USE THE ALIBI for either trial (even after the first trial revealed the state’s theory of a 2:36 come-and-get-me call).
3. Get convicted and sentenced to life+30.
4. Not use the alibi in direct appeal.
5. Wait years. Get a PCR hearing.
6. Not use it then, either, but try unsuccessfully to only use the affidavit.
7. Wait for podcasts to be invented and become a thing.
8. Get a groundbreaking hit podcast created about his case.
9. Against all odds get a second PCR hearing,
10. And THEN spring the “fake” alibi? (The “fake” alibi which didn’t even win him the new trial, by the way.)

ARE YOU KIDDING? It is beyond idiotic.

I find it exceedingly doubtful that anyone at the State’s attorney’s office genuinely believes this rubbish.

I suppose, however, when neither the law nor the facts are with you, rubbish is all you have left.

Posted by: A nonny nonny | Aug 2, 2016 9:43:27 AM

@pluscachange and @Michael, I believe that if you check Ms. Chapman's own website you will see that the news coverage of the PCR hearing and her book was quite extensive in Baltimore, where it is likely that the sisters live (or someone who knows them lives). This is the market that matters.

Posted by: Jane | Aug 2, 2016 10:15:35 AM

@Jane, I think if they want to present those witnesses there is a perfect place for their testimony to be heard and weighed... in the courtroom during a trial.

Posted by: Robert | Aug 2, 2016 11:53:37 AM

"Such as Jay's testimony about the "come and get me" call. Which he claimed took place after 3:40 P.M. Which Judge Welch found had to be the 2:36 P.M. call based on the entirety of the State's case. "
Arguing that the cell site testimony was not the linchpin is not the same as accepting the come and get me call, right?

Posted by: joe | Aug 2, 2016 3:55:21 PM

And, "Of course, the State did this after arguing in its ALA that motions to reopen postconviction proceedings should rarely be granted and only in circumstances such as the alleged State misconduct by Kevin Urick with regard to Asia McClain, meaning that the cell tower/IAC claim should not have been heard."
Why can't the state change their line of argument based on a judge's decision, isn't that what being a lawyer is all about? It seems a bit much to call that "internal inconsistency."

Posted by: joe | Aug 2, 2016 3:57:03 PM

@pluschange - "She did a very limited amount of press." I did not realize she turned down the opportunity for a lot of press.

Posted by: joe | Aug 2, 2016 3:58:40 PM

I see the State is also attempting to discredit the fax cover sheet by again detailing every column of the cell records to prove that the records aren't a subscriber activity report. And experts are in dispute! Trying to read that made my eyes cross.

Posted by: Beth | Aug 2, 2016 5:29:39 PM

Colin, does anyone have a copy of the states "Conditional Application for Limited Remand" in relation to the two sister witnesses ? Did the state provide affidavits in this application? Can the public get a copy?

Posted by: Ben | Aug 2, 2016 7:42:33 PM

Am I reading this right? The State is trying to argue that Adnan shouldn't get a new trial on the basis of info from 'the sisters' that wasn't brought up in trial or in the PCR hearing? Doesn't that argument alone necessitate a new trial? Do they actually believe their own b.s.?

Posted by: Emily | Aug 2, 2016 7:44:05 PM

What do you make of the fact that the ALA seems to completely ignore all of Judge Welch's factual findings, e.g., the (un)reliability of Agent Chad, and poses them as if they're up for grabs? Usual? Unusual? Par for the course?

Posted by: Michael | Aug 2, 2016 9:59:51 PM

Yes because if the experts are in dispute, it would not be a matter of simply being able to read and therefore not IAC.

Posted by: Joe | Aug 2, 2016 10:41:49 PM

Interesting how everyone is simply ignoring that there may be evidence that Asia concocted the whole thing up.

Posted by: Bruce | Aug 3, 2016 10:21:42 AM

Asia's testimony was ruled to be a non-factor in granting Adnan a new trial, yet the State is still harping on it. This is the very definition of grasping at straws.

Does Judge Welch's opinion on Jay's credibility have any influence on COSA?

Posted by: tim | Aug 3, 2016 10:51:31 AM

On what grounds is the limited remand application not yet public? Is it because it's conditional? (Any ideas about who the sisters are?)

Posted by: Cupcake | Aug 3, 2016 1:22:01 PM

I'm at loss for words. This case just keeps getting crazier. It's as crazy as somethings I've read by guilters on Reddit. Is this usual behavior?
Thanks for the brilliant analysis. This would make for a great TV show!! I still can't believe it's all real. Crazy!!

Posted by: Amara | Aug 3, 2016 1:57:53 PM

Where did Seamus Duncan go? Anyone else miss him? He's been pretty quiet since the PCR.

Posted by: Narizarielka | Aug 3, 2016 2:35:34 PM

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