Wednesday, October 5, 2016
Today, the State filed a Consolidated Reply in the Adnan Syed case. The Reply once again asks the Court of Special Appeals of Maryland to (1) grant it leave to appeal Judge Welch's order granting Adnan a new trial on the cell tower issue; and (2) remand the case back to the Circuit Court in the event that it plans to grant Adnan leave to cross-appeal Judge Welch's order denying Adnan a new trial on the Asia alibi issue. Let's dig into three of the arguments made in the Reply.
The State's Argument for Remand is Strong
According to the State, Adnan's successful motion to remand so that Asia could testify was based upon "a 'good faith' — though ultimately unsupported and meritless — accusation of prosecutorial misconduct." The State then asserts that "the differences between Syed’s previous request (based solely upon McClain’s affidavit) and the State’s present one (premised upon two credible affidavits containing no evidence of ulterior motives) support a limited remand at this time."
This argument, however, misses the point. The Maryland courts have found that a case can be remanded "in the interests of justice" in limited circumstances, such as when a defendant alleges prosecutorial misconduct, including dissuading a witness from testifying. See, e.g., Campbell v. State, 376 A.2d 866 (Md.App. 1977). Adnan alleged that prosecutor Kevin Urick dissuaded Asia McClain from testifying and made a good faith claim of such misconduct through Asia's affidavit. As a result, the Court of Special Appeals of Maryland was able to remand so that Adnan could file a motion to reopen and Asia could testify.
Conversely, the State has presented affidavits of two sisters, whom they claim will contradict Asia's testimony that she saw Adnan at the Woodlawn Public Library on January 13, 1999. The State claims that two is better than one, but that's not the point. The State has not said that any misconduct prevented these sisters from coming forward earlier; instead, the State merely claims that the sisters didn't come forward until after the reopened hearing was closed. There is no Maryland case law supporting the proposition that reopening under these circumstances would be "in the interests of justice." Furthermore, only a defendant, and not the State, can file a motion to reopen in Maryland. In its Reply, the State never addresses either of these roadblocks.
Adnan's Cumulative Error Claim is Not Fit For Appellate Review
The defense has argued that the Court of Special Appeals should consider the cumulative prejudice of Cristina Gutierrez's failure to contact Asia McClain and failure to use the AT&T disclaimer rather than looking at the prejudice caused by each of these errors in isolation. This is based upon the recent opinion of the United States Supreme Court in Wearry v. Cain, which held that "the state postconviction court improperly evaluated the materiality of each piece of evidence in isolation rather than cumulatively."
The State counters this by arguing that this "cumulative error" claim is a "new claim" that the Court of Special Appeals should not address because it is not preserved for appellate review. This, however, misses the point that the defendant in Wearry v. Cain did not make a "cumulative error" claim in his postconviction petition. Instead, the Supreme Court simply held that the prejudice caused by multiple errors should be judged together rather than apart. That is all that the defense has asked, and the State never explains why Wearry v. Cain is inapplicable.
The Cell Tower Evidence Was Not Part of the Crux of the State's Case
According to the State, "Syed mischaracterizes and overstates the significance of celltower evidence (which certainly was part of the State’s evidence and arguments, but was hardly the crux of the State’s case)." To me this seems like a disastrous mistake by the State because it wasn't the defense that argued that the cell tower pings were part of the crux of the State's case; it was Judge Welch.
The reason this mistake is disastrous is the context of this conclusion by Judge Welch. According to Judge Welch, while trial counsel was unreasonable in failing to contact Asia McClain,
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."
In other words, Judge Welch used his conclusion that the Leakin Park pings were the crux of the State's case to find that failure to contact Asia McClain was not prejudicial and did not require a new trial. In this new Reply, the State has now directly attacked this conclusion by Judge Welch, which leads to the conclusion that failure to contact Asia was prejudicial, meaning that there are alternate grounds for a new trial if the Leakin Park pings were important but not the crux of the State's case.