NACDL/MCDAA/Steven Klepper File Amici Curiae Brief Arguing for a Retrial for Adnan Syed

Yesterday, the National Association of Criminal Defense Lawyers and the Maryland Criminal Defense Attorneys’ Association filed an amici curiae (friend of the court) brief written by Steven M. Klepper in the Adnan Syed case. Simply put, the brief asks the Court of Special Appeals of Maryland to deny the State leave to appeal Judge Welch's order granting Adnan a new trial.

The brief begins by noting the relevant statistic: Since 2010, the Court of Special Appeals has only granted between 0% and 5% of Applications for Leave to Appeal (ALAs) under Maryland Rule of Criminal Procedure 7-109. And while this statistic doesn't distinguish between ALAs filed by defendants and the State, the brief contends that

If there is any difference between State and prisoner applications, the standard should be higher for the State. Commentators have suggested that certiorari-like factors guide whether a Court should grant a 7-109 application....Built into that public interest analysis is the fact that, when this Court denies the State’s application for leave to appeal a new trial order, the State’s case remains live. It can – barring some kind of prejudice, which the State does not claim here – retry the defendant.

When this Court denies a prisoner’s § 7-109 application, however, the state courts’ review of his constitutional claim is at an end. While a prisoner can still file a federal habeas petition, that “federal court safety-valve was abruptly dismantled in 1996 when Congress passed and President Clinton signed the Antiterrorism and Effective Death Penalty Act....AEDPA is a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice.” Hon. Alex Kozinski, Criminal Law 2.0, 44 GEO. L.J. ANN. REV. CRIM. PROC. iii, xli (2015). In nearly every post-conviction case, this Court is the prisoner’s last realistic hope. For those rare cases when a prisoner can convince a circuit court to grant a new trial, the State’s ability to retry the defendant should weigh against the grant of the State’s application for leave to appeal.

This seems like sound logic. If the defendant loses on appeal, the Court of Special Appeals should more readily grant leave to appeal because this could be his last chance to prove he was wrongfully convicted. Conversely, if the defendant wins on appeal, the Court of Appeals should less readily grant leave to appeal because the State could still retry the defendant. The only exception in the latter scenario would be if key witnesses or evidence no longer existed.

But, as the brief notes, 

Nowhere in the State’s lengthy application does it claim it would face prejudice in the event of retrial....None of the witnesses have died or are otherwise unavailable. The State’s application cites what it believes to be overwhelming evidence, all of which remains available for the State to present at retrial.

Conversely, if the Court of Special Appeals did grant leave to appeal, 

The appeal process could easily take two years or more. If Mr. Syed prevails at the end of the appellate review process, there is no guarantee that both sides’ witnesses will still be available.

-CM