Tuesday, August 2, 2016
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:
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.