EvidenceProf Blog

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

Friday, November 18, 2016

Justin Brown Submits a Reply to the State's Bail Arguments in the Adnan Syed Case

Today, Justin Brown filed a Reply in Support of Motion for Pretrial Release in the Adnan Syed case. This Reply answers the State's Response to Motion for Release, which itself answered Adnan's  Motion for Release Pending Appeal. The Reply clams that the State's Response was erroneous in three regards.

1.    Adnan's Conviction is Vacated, and the Court Can Order His Release

In its Response, the State claimed that the "stay" entered by the Circuit Court meant that (1) Adnan's conviction was no longer vacated; and (2) Adnan could not be released during the pendency of the appeal in his case. In his Reply, Brown notes that the State's first claim is contradicted by Weston Builders & Developers, Inc. v. McBerry, LLC, where the Court of Special Appeals of Maryland held that "a 'stay' does not trigger a universal freeze of the status quo;" it just freezes the execution of judgment. For purposes of Adnan's case, this means that the "stay" of Adnan's case only put the remedy -- a new trial -- on hold, not the order/judgment vacating Adnan's conviction. Therefore, contrary to the State's claim, Adnan's conviction no longer stands.

This ties into the State's second claim, which Justin notes is contradicted by Section 7-109(b)(2) of the Maryland Code of Criminal Procedure, which provides that

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.

As Justin notes, this subsection makes clear that the court can "stay" the order granting a defendant a new trial and set bail, which also makes clear that the order is not erased by the "stay." By way of contrast, the State's reading of the subsection requires the word "or" between (i) and (ii). In other words, as "Schoolhouse Rock" teaches, "and" is a conjunction that allows a court to "stay" an order and set bail while "or" is a disjunction which would require the court to choose between a "stay" and bail.

2.    The Court May Consider the Strength and Weakness of the State's Evidence 

After noting that the State cited "a non-existent rule," Justin cites to Maryland Rule 4-216(e)(1)(A), which provides that the judge shall take into account, inter alia, the following when deciding whether to release a defendant:

(A) the nature and circumstances of the offense charged, the nature of the evidence against the defendant, and the potential sentence upon conviction....

The State tried to claim that this subsection did not allow Maryland judges to consider the strength/weight of the State's evidence. Justin counters that the phrase "nature of the evidence" means what it says, which is that the judge must consider the strength/weight of the State's evidence. To drive this point home, he cites Schmidt v. State, where the Court of Special Appeals of Maryland noted that "[w]hether the victim and the accused were acquaintances or total strangers may affect the nature and strength of the evidence against the accused." In other words, in assessing the nature of the evidence against the accused, the court considered the strength of that evidence as well. Therefore, the same analysis should be done in Adnan's case.

3.    Unlike Cher, the State Can't Turn Back Time

In its Response, the State claimed that the court shouldn't consider new evidence like the lividity evidence and new evidence that undermines Jay's claims. In this case, I'll let Justin's Reply speak for itself:

Screen Shot 2016-11-18 at 4.49.51 PM 



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It makes me chuckle that many, many paragraphs and several case law citations are necessary to define the word "and".

Posted by: Beth | Nov 18, 2016 6:32:33 PM

Well, you know. Not to split hairs, but Cher couldn't actually turn back time. She just wished that she could find a way to take back those words that'd hurt you and you'd stay.

Posted by: pluscachange | Nov 18, 2016 8:47:21 PM

Another great response from Justin. Among the many troubling things in the State’s response, here is one that really stood out to me…

The State actually started the paragraph regarding their completely fictional example of Adnan engaging in “witness tampering” with the words “In fact.” Seems like they may also need a reminder of the definition of “fact.” How ironic that they end that paragraph with a quote from Judge Heard about manipulation when that entire paragraph is essentially the State using it’s power to try to manipulate the Court – just as they tried to do at the PCR hearing.

“The opportunity for redemption can only follow taking responsibility for one’s actions.” I hope Brian Frosh gives that line from the State's response a lot of thought.

Posted by: Jodi | Nov 18, 2016 11:34:21 PM

Hopefully the court will address this motion soon? So hoping Adnan can get released on bail asap. Thanks for keeping us posted Colin!

Posted by: Sophie Spencer | Nov 19, 2016 12:36:06 PM

"Conjunction Junction, what's your function? Hookin' up words and phrases and clauses...."

Mic drop, Colin. Well done. :)

Posted by: Sarah Pracna | Nov 19, 2016 3:46:50 PM

I am no lawyer (and do not live in the US) but I do really not understand considering the fundamentals of modern western law how he could stay in his status. He was granted a new trial and therefore "in dubio pro reo" applies again and he goes back into the status of a defendent again. With this status he can't remain a murderer, bc it was not proven right before/the prosecutor has to prove it again. I really hope that there will be a positive decision for Adnan soon.

Posted by: Coco | Nov 25, 2016 12:43:40 AM

Wow. I cannot believe the state here. Adnan engaged in witness tampering? Forced a girl he barely knew to write a letter (not sure how he could since he was already arrested). Asking the Court to not consider any of the new facts. Ridiculous.

Listening to Undisclosed now. As an attorney I really appreciate the way the attorneys are carefully sifting through and analyzing all the evidence.

It's pretty horrifying how the detectives and prosecution acted then and now in this case. Sadly after hearing all they've done so far, their words and actions now are not a surprise.

Posted by: CE | Nov 29, 2016 6:59:32 AM

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