EvidenceProf Blog

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

Friday, November 11, 2016

Contrary to the State's Claim, Adnan Does Not Remain a Convicted Murderer & Kidnapper

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This is one of the more troubling contentions in the State's Response to Motion for Release in the Adnan Syed case, and the State backs the contention up with no citations to any statutes or case law.* Perhaps this is because it is clear that Adnan's convictions have been vacated and that he is cloaked in the presumption of innocence.

Let's start with the basics. On June 30, 2016, Judge Welch entered an order vacating Adnan's convictions and granting Adnan a new trial based upon his corresponding opinion concluding that Adnan received Constitutionally ineffective assistance of trial. Pursuant to Maryland Code of Criminal Procedure Section 7-109(b)(2)

(2) If the Attorney General or a State's Attorney states an intention to file an application for an appeal under this section, the court may:

(i) stay the order; and

(ii) set bail for the petitioner.


on July 21, 2016, the State notified the Court of its intention to file an application for leave to appeal and requested, pursuant to Section 7-109(b)(2) of the Criminal Procedure Article of the Maryland Code, that the Court “stay its order vacating Petitioner’s convictions and granting Petitioner’s request for a new trial, pending further resolution of these matters by the Court of Special Appeals.”


On August 2, 2016 (the day after the State filed its application for leave to appeal), the post-conviction court granted the State’s request for a stay.

In its Response, the State is contending that this stay means that Adnan remains a convicted murderer and kidnapper. This fundamentally misunderstands the effect of a judicial stay. In Weston Builders & Developers, Inc. v. McBerry, LLC, 891 A.2d 430, 442 (Md.App. 2006), the Court of Special Appeals of Maryland noted that

Most emphatically for present purposes, a “stay” does not trigger a universal freeze of the status quo.

A judgment, the enforcement of which may be subjected to a stay, is a court decision in favor of a party, generally the plaintiff, entitling that party to a very particular form of relief, such as a money judgment, the foreclosure of a mortgage, the appointment of a trustee to make a judicial sale. The prevailing party, in order to enjoy the benefit of that judgment, sometimes requires some further order of the court, by way of directing a clerk or a trustee or a sheriff to enforce or execute on the judgment. Such officially ordered actions are the subject matter of stays of enforcement of or execution upon a judgment.

Furthermore, that same court concluded in Nnoli v. Nnoli, 646 A.2d 1021, 1024 (Md.App. 1994), that a "stay does not necessarily suspend every aspect of the pending suit." 

This is where Section 7-109(b)(2) comes into play. Judge Welch (1) vacated Adnan's convictions; and (2) granted him a new trial. The "stay" that Judge Welch entered does not alter his order vacating Adnan's convictions; it merely suspends the order granting him a new trial.

As an analogy, consider a typical breach of contract case: Pam sues Dana for breach of contract, and the jury finds that Dana breached the contract and awards Pam $50,000 in damages. In response, Dana appeals and successfully asks the court to stay execution of the damages award pending her appeal. The "stay" does not disturb the jury's decision that Dana breached the contract; instead, it just delays Dana's obligation to pay damages until after the resolution of her appeal.

Moreover, as noted in Nnoli, a "stay does not necessarily suspend every aspect of the pending suit." This is clearly the case with the stay of Judge Welch's order. Like Dana in the breach of contract case, the State has used a "stay" to delay its obligations pending appeal, such as its compliance with the requirement that it provide Adnan with a speedy (re)trial.

That said, the "stay" did not suspend every aspect of the case. One of the consequences of a court vacating a defendant's conviction(s) is that the defendant is eligible for bail. And, as Section 7-109(b)(2) makes clear, a "stay" does not suspend this eligibility because it specifically says that, after entering a "stay," the court may "set bail for the petitioner."

This, of course, would be impossible if the "stay" disturbed Judge Welch's order vacating Adnan's convictions. If, as the State claims, "Syed remains a convicted murder and kidnapper," he would not be eligible for bail. But he's no longer a convicted murderer and kidnapper. The "stay" only alters the State's obligations in connection with a new trial. It does not alter the order vacating Adnan's convictions and his concomitant eligibility for bail.


*Indeed, the Response cites no Maryland case law at all.



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Colin - they also (on page 5) list the "evidence presented by the prosecution" and "the evidence put before the jury in this case" quoting from the SA "amicus" brief. Isn't the whole crux of Adnan's argument (and Judge Welch's ruling on it) that what made his defense constitutionally inadequate and led to the vacating of his conviction was her fumbling of pieces of evidence that never made it in front of the jury to rebut the prosecution's claims?

Posted by: Dan | Nov 11, 2016 8:17:17 AM

I'm considering doing a comparison of how often Justin Brown/Adnan has cited case law and/or actual legislation, vs how often the State has. Just for laughs. This is one of the few times they've even tried recently, and yet somehow they've scored another own goal. I'm almost embarrassed for them.

Also I've been wondering how legitimate the State's selfie habit is? They are very fond of quoting their own attorneys arguments as if they were fact, rather than quoting the actual witness testimony or documentary evidence. We've all seen how many times they've quoted things which were later looked into and found to have no actual factual basis. Or passed on info of the same type to others (cough, cough amicus brief, cough). But is there any actual obligation on them to track down the sources for their claims or is this obfuscation a legitimate tactic?
What about CoSA? Are they obliged to track down the actual facts, or lack of, behind these State selfie-arguments? And if they aren't actually obliged, might they do so regardless, given the State's track record of layered misrepresentations?

Posted by: Anonymouse | Nov 11, 2016 8:53:32 AM

My jaw nearly hit the floor when they tried bring up the Juauan note as being evidence of Adnan trying to solicit a false alibi.

Truly Maryland, Have You No Shame?

Posted by: Paul | Nov 11, 2016 10:46:33 PM

I wish the State would show us that "crushing" and "overwhelming" evidence, because it's certainly not part of any record.

Posted by: Diane L | Nov 12, 2016 5:22:55 AM

When I continue to see such bad interpretation of law coming from a state agent, I despair that anyone in power in Maryland went to law school.

Colin, I think you could make a fortune doing refresher courses to the DAs of Baltimore. The certainly need them!

Posted by: JLWhitaker | Nov 12, 2016 2:24:04 PM

This is a bizarre document. I’m sure that every Maryland judge involved with setting bail is familiar with the statute cited by the state; can recited word from word by memory; and has given it great thought. I assume that the “weight of the evidence” is an integral part of the “nature” of the evidence. The state argues that the weight of the evidence should not be considered, but refers to its own evidence as “crushing”. This certainly implies great weight.

Posted by: BobW | Nov 13, 2016 7:02:01 AM

Bob W perhaps they meant the evidence is crushing to the prosecution's case. Ha.

Posted by: Lagaya1 | Nov 13, 2016 6:28:29 PM

My thoughts exactly, Prof. Colin. Where is the case law? And, I'm not even a lawyer (although I've been a legal secretary (civil litigation) for 25+ years.) What a lukewarm, half-assed response from the State, barely 8 pages and no case law to back up its contentions. This is yet another example of the State of Maryland grasping at straws. Is this all the State can come up with? Sad, really.

Posted by: Just_Tina | Nov 14, 2016 2:46:15 PM

These arguments are laughable. Is this sort of incompetence common? Could you expect it to make a Judge angry?

Posted by: Barbara S | Nov 16, 2016 9:30:36 AM

This quote is so relevant over and over in this case.

“If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell”

― Carl Sandburg

Posted by: Dan | Nov 17, 2016 10:43:30 AM

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