EvidenceProf Blog

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

Thursday, November 10, 2016

The State's Response to Motion for Release in the Adnan Syed Case is Fundamentally Flawed

Today, the State filed its Response to Motion for Release in the Adnan Syed case. As Justin Fenton notes, the Motion makes clear that Charlton Howard, a retired NCIS special agent, has taken over for Thiru Vignarajah. Unfortunately for the State, a one minute glance at the Response makes clear that it is fundamentally flawed. 

Adnan's Motion for Release Pending Appeal was primarily premised upon evidence that has destroyed the "crux" of the State's case, such as the AT&T disclaimer, Jay's criminal history and Intercept interview, and the lividity evidence. In turn, the heart of the the State's response is as follows:

Screen Shot 2016-11-10 at 4.55.44 PM

In other words, according to the State, the judge is only supposed to assess the nature of the charges and the potential sentence and isn't supposed to assess the weight of the evidence under Maryland Rule 4-216(d)(1)(A). First, the State's citation is incorrect. There is no Maryland Rule 4-216(d)(1)(A). Ostensibly, the State was trying to cite to Maryland Rule 4-216(e)(1)(A)Second, here is what that Rule states:

Screen Shot 2016-11-10 at 4.57.33 PM

So, in determining whether to release a defendant, the judge is supposed to assess not only the "nature and circumstances of the offense charged" and the "potential sentence upon conviction," but also "the nature of the evidence against the defendant." (emphasis added). This is the exact same thing as assessing the "weight of the evidence against the defendant." [Edited to add: The two phrases are interchangeable in the bail context. See, e.g., United States v. Burdette, 813 F.Supp.2d 1, 4 (D.D.C. 2011) (“Furthermore, the weight of the government's evidence against defendant is strong. And given the nature of that evidence, the Court finds that defendant's release would pose a significant danger to a particularly vulnerable segment of the community—children.”).].



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The state claims that the vacation has been Stayed, which means Adnan is still a convicted criminal until The COSA looks at whether they will allow an appeal.
Is this correct?
If so, how could Adnan possibly be released on bail when his conviction has been stayed?

Posted by: ben | Nov 10, 2016 2:47:05 PM

Yes do you mean that the weight of evidence is a factor of the "nature of evidence"?
Am I interpreting this correctly?

Posted by: De Maher | Nov 10, 2016 3:09:23 PM

So the weight of evidence is a factor in the "nature of evidence" is this correct?

Posted by: De Maher | Nov 10, 2016 3:11:33 PM

ben: No, that is not correct. Adnan’s conviction has been vacated by Judge Welch’s order. The stay of that order simply prevents that order from taking effect. As for release, Maryland Rule of Criminal Procedure 7-109(b)(2) states that when the State indicates that it will seek leave to appeal an order granting a defendant a new trial, the court may (i) “stay the order” and (ii) “set bail for the petitioner.” The court has already done (i). Defense counsel has now asked it to do (ii).


De Maher: Yes, the two phrases are interchangeable in the bail context. See, e.g., United States v. Burdette, 813 F.Supp.2d 1, 4 (D.D.C. 2011) (“Furthermore, the weight of the government's evidence against defendant is strong. And given the nature of that evidence, the Court finds that defendant's release would pose a significant danger to a particularly vulnerable segment of the community—children.”).

Posted by: Colin Miller | Nov 10, 2016 3:50:20 PM

My "favorite" line in that brief:

"But the State declines to encourage Syed’s strategy of piecemeal litigation, manufacturing and inserting newfound claims in whatever his latest petition, no matter whether those claims are procedurally proper or factually relevant."

I guess, according to the state, only the state should be allowed to engage in such a strategy.

Posted by: Michael | Nov 10, 2016 6:00:36 PM

I worked with Chuck Howard while he was at NCIS (myself as a peon -- he as a GS-15). I had no idea this was where he landed in his retirement. A shame to see he is the one continuing this stance against Adnan. I'm a faithful listener of Serial and both seasons of Undisclosed.

Posted by: Christina | Nov 10, 2016 6:23:51 PM

They got the case citation number wrong? How sloppy.

Posted by: Abby Crowley | Nov 10, 2016 6:28:47 PM

What do you think of this, Colin?

Posted by: Lauren | Nov 10, 2016 6:59:52 PM

I'm a strong supporter of Adnan but I have to disagree with you that the two terms are interchangeable, at least not based on the citation you provided. I believe the nature of the evidence would be referring to the type of evidence. Is it DNA evidence? bolistics? Eye witness? Cell phone records?
Strength of the evidence obviously varies. For instance, blood evidence could be weaker (narrow to blood type) or stronger (near exact match) but the nature of the evidence would be the same. The quote you provided says that the evidence is strong and based on the nature of THAT (strong) evidence...

Posted by: Cmt256 | Nov 10, 2016 7:28:49 PM

So the next step is a decision by the judge or ??

Posted by: Debi | Nov 10, 2016 7:58:44 PM

Colin - What's next from a process and expected timeframe perspective for the bail question to be resolved? Also, I know this is a bit off topic, but I recall from an episode of Undisclosed that Gutierrez had not been allowed to present a theory of alternative suspects. Is that correct? (I can't remember exactly why.) But now that more evidence has come out about Don's timecard, would the defense now have more options regarding presenting alternative suspects than Gutierrez did?

Posted by: Jodi | Nov 10, 2016 9:45:19 PM

Colin, is it me or are the State's briefs becoming less coherent and less relevant to the actual case, since Thiru left? The last two mirror a toddler throwing a temper tantrum for no apparent reason.

Posted by: Tim | Nov 11, 2016 12:26:44 AM

Lauren: I think it’s a pretty weak response, but Adnan still doesn’t have very good odds of being released unless COSA denies the State leave to appeal.

Cmt256: Fair enough. Here’s actual language from a judge discussing this criterion, as cited in the Appellant’s Brief in Vaughn v. State, 2016 WL 1213135 (Md.App. 2016), a case in which the defendant was charged with possession of a firearm by a disqualified person:

“The nature of the evidence against the Defendant, I guess, is at issue here. I understand the Defense's position; it was not his firearm. That officers are, I guess, would suggest otherwise. That there's a connection between him and this location.

I don't know if there's a person that places him in possession of this, you know, sees him drops this gun or whatever the case may be. I don't know what these people across the deck would or would not have to say about what they observed or not but there is evidence that connect him to that location.”

The way I see it, that’s basically the judge assessing the weight of the evidence that the defendant possessed a firearm.

Debi: The judge will either reject Adnan’s motion for release without a hearing or hold a hearing to decide whether to release him.

Jodi: There’s no set timeline. Also, as far as I know, Gutierrez was not prevented from presenting evidence of alternate suspects.

Tim: This is another filing by the State that contains no citations to any Maryland case law. And while the filing does cite Maryland statutes, the main one it cites is a miscitation and a misinterpretation.

Posted by: Colin Miller | Nov 11, 2016 3:03:54 AM

1. Is it normal for lawyers to miscite case law?

2. If the judge notices this miscitation, would this be a reason or a technicality for the judge to not agree to the states response to motion? Or does the state get another opportunity to re-file their response?

Posted by: Gavin Hosman | Nov 11, 2016 10:03:15 AM

Jodi it was the Steven Avery case where the attorneys were forbidden to discuss alternative suspects without evidence.

Posted by: NavyMom | Nov 11, 2016 10:20:04 AM

State now says "no mini trial." Oh except for the sisters. Wut??

Unbelievable. Keep digging that hole. And keep the factual misrepresentations coming!

Posted by: Michael | Nov 11, 2016 10:21:51 AM

Ugh. Praying the judge rules in Adnan's favor. I feel encouraged by your explanation of the State's folly...

Posted by: Sophie Spencer | Nov 11, 2016 5:24:04 PM

Different types of evidence carry different implicit weights. I think the rule means a judge should assess the category of evidence--without going into an Fact-finder role on it.

So in this case, the nature of evidence is: testimony from an alleged co-conspirator, and cell phone records. Hm..

Where physical evidence like DNA has a strong implicit weight, these two I see as pretty low on the evidentiary totem poll. Additionally, the evidence is specifically lacking in any physical evidence--which is a weight in itself.

Even if the two terms are exactly interchangeable, they do spend a fair amount of Venn diagram together spooning. States assertion is patently incorrect, either way.

Posted by: Paul | Nov 11, 2016 8:58:42 PM

I just started reading the motion, and...seriously? They brought up the "fake alibi" scenario? From the point of view of someone who never went to law school, an alibi is something one uses to prove where they were when the crime occurred. To my recollection, Adnan never said "I was at the library after school until x time, and here's a letter proving it", so why does the state continually harp on this fake alibi issue?

Posted by: Beth | Nov 12, 2016 5:07:30 AM

Hi. thank you for clearing up a few things that have bothered me. I live in Ireland, so a lot of these things to do with US law have to be painstakingly explained to me. I had understood that once the judge had vacated the sentence than surely Adnan was innocent again until proven guilty, and therefore should automatically be released or at least get bail as standard... this point had been bothering me. Now i understand that the very slow moving parts of legal systems must take their course, but it doesnt make me any less frustrated at how this is playing out for Adnan.. a lot of people are trying to cover their arses methinks...

Posted by: val | Nov 12, 2016 7:54:51 AM

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