EvidenceProf Blog

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

Wednesday, October 5, 2016

The State Shoots Itself in the Foot in its Consolidated Reply in the Adnan Syed Case

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.



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I think there's a "not" missing from your first internal heading, which currently reads "The State's Argument for Remand is Strong."

Also thanks for the post.

Posted by: pluscachange | Oct 5, 2016 12:14:25 PM

This is precisely why we need to stop seeing admission of error as a threat to the impermanence of case law and sentences. There is no rectification if the parties involved act as if nothing is wrong in the first place.

Posted by: Megan Pawlak | Oct 5, 2016 2:00:48 PM

Thank you again Colin for breaking this down so well! You are amazing!

Posted by: Laura Johnson | Oct 5, 2016 4:00:34 PM

I think he's listing each of the state's arguments, not the errors he sees in their arguments

Posted by: Narizarielka | Oct 5, 2016 5:00:41 PM

As I recall, COSA is pretty much limited to accepting Welch's factual findings, correct?

Posted by: bacchys | Oct 5, 2016 9:59:47 PM

It seems to me that the State doesn't really have much new to say. They have previously "exhaustively" explained" and now "vigorously reaffirm" those positions, but include no substantive case law to support them. The brief reads to me as a whiny child who is used to getting its own way and has suddenly been finally told "NO". Thanks so much for all of your great analysis, Colin. Reading your briefs brings me back to law school, which I really did thoroughly enjoy.

Posted by: Anne | Oct 6, 2016 4:22:23 AM

Does the defense reply to the reply or is this the last step until the COSA ruling?

Posted by: Jodi | Oct 6, 2016 7:24:32 AM

Thiru has basically argued that CG was a highly skilled attorney, and celltower evidence was ancillary to the meat of the state's case.

Thiru is either incompetent (doubtful), or grasping at straws.

Posted by: Darth Shady | Oct 6, 2016 8:16:38 AM

pluscachange: That heading just describes the State’s argument.

Megan: Agreed.

Laura: No problem.

Narizarielka: Yes.

bacchys: Right. COSA can only reverse those for clear error/abuse of discretion.

Anne: Yes, there’s not much new here.

Jodi: I’d expect something else from the defense in the next 3 weeks.

Posted by: Colin | Oct 6, 2016 8:17:13 AM

Anne - As a layman, it seems worse to me than your analogy. Because a whiny child may be disciplined for a tantrum like this (Time out, no dessert, etc.) but it seems a prosecutor never is (or the AG's office in general). Maybe it doesn't warrant personal discipline, but judges should at least take into consideration how credible the prosecution's other arguments are when then employ this kind of "let's throw a bunch of crap against the wall and see what sticks" strategy.

Posted by: Dan | Oct 6, 2016 9:25:43 AM

how many of these inane briefs can the state right? When is this crap over already? you lost. move on.

Posted by: m | Oct 6, 2016 4:08:10 PM

Thank you Colin! Once again, a very clear explanation and rebuttal of the usual crap the state keeps throwing at Adnan!

Posted by: Sophie Spencer | Oct 6, 2016 9:37:09 PM

Dan--they don't have anything more than "crap" to throw at the wall. The state feels it has to say something to defend its position, but it obviously has found no new case law to support it. This brief is nothing more than grasping at straws and is a typical response when there is nothing new to say--imho not rising to the level of misconduct. The Court will review all of the briefs and rule based upon his experienced interpretation of the law. It reminds me of a line in the Jack Nicholson movie, "A Few Good Men." In court, when Demi Moore as Lt. Cmd. Galloway's objection has been overruled, she says, "But your honor, I strenuously object!" Sorry Maryland, that's not how it works. :)

Posted by: Anne | Oct 7, 2016 4:12:56 AM

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