EvidenceProf Blog

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

Thursday, December 29, 2016

An Analysis of Judge Welch's Opinion Denying Adnan Syed Release Pending the State's Appeal

Today, Judge Welch issued a Memorandum Opinion denying Adnan Syed's motion for release pending the State's appeal of Judge Welch's prior opinion granting Adnan a new trial. As I've noted before, this was the likeliest result, but there were also aspects of Judge Welch's opinion that are promising in terms of Adnan's future chances of release pending (re)trial.

I.       Judge Welch Rejects the State's Reading of Section 7-109(b)(2)

The defense had argued that Section 7-109(b)(2) of the Maryland Code of Criminal Procedure gave Judge Welch discretion to release Adnan pending the State's appeal. The State had countered that Section 7-109(b)(2) did not give Judge Welch this discretion after he had granted the State's motion for a stay. Judge Welch rejected the State's reading of Section 7-109(b)(2) with some Schoolhouse Rock analysis:

Section 109 of the Criminal Procedure Article governs the appeal of final orders issued under the Uniform Post Conviction Procedure Act. Crim. Proc 7 109(b 2) grants this court the discretion to both stay an order granting post conviction relief and set bail for the Petitioner The plain meaning of the statute and the use of the conjunctive "and" instead of "or" indicates that this court may set bail even after a has been issued.

II.    Judge Welch Finds the Nature of the Remand Prevents Him From Granting Release

Despite finding that Section 7-109(b)(2) granted him discretion to release Adnan, Judge Welch found that he was limited by the nature of the remand in this case. Specifically, the Court of Special Appeals of Maryland remanded the case so that Adnan could file a motion to reopen his postconviction proceeding and (1) present evidence related to Asia McClain/ineffective assistance; and (2) present evidence related to any new claims allowed by Judge Welch. That remand order also directed that "after taking any action it deems appropriate, the circuit court shall forthwith re-transmit the record to this Court for further proceedings."

The defense, of course, did successfully raise a new claim before Judge Welch -- the cell tower/ineffective assistance claim - and it was that claim that led to Judge Welch granting Adnan a new trial. According to Judge Welch, though, this was different from a typical postconviction case, in which an order granting a new trial could lead to the circuit court judge granting release. Instead, because the Court of Special Appeals had ordered Judge Welch to re-transmit the record to it after his decision, he had no authority to order Adnan's release.

I think that's a defensible conclusion, but I would also disagree with it. I think that if Judge Welch had granted a new trial on the Asia/ineffective assistance claim, the nature of the remand would have prevented Judge Welch from granting Adnan release. But, because Judge Welch granted a new trial based upon a new claim, a claim upon which the Court of Special Appeals does not need to grant the State leave to appeal, I think that Judge Welch could have granted Adnan relief.

But there's no precedent on this issue, so I'm not sure of my conclusion. That said, it doesn't seem like Judge Welch was sure of his conclusion either.

III.    Judge Welch Proceeds to Consider the Release Factors

This lack of certainty is reflected in the fact that Judge Welch, "[i]n an overabundance of caution," proceeds to consider the release factors, in the event that his prior conclusion was wrong. Pursuant to Maryland Rule 4-216, there are nine of them.

1.    The nature and circumstances of the offense charged, the nature of the evidence against the defendant, and the potential sentence upon conviction

The first and third of these are easy: Murder is the most serious offense, and Adnan would face a sentence of life +30 if prosecuted and convicted again. This creates a great risk of flight.

In terms of the nature of the evidence against Adnan, Judge Welch concluded that "there still is compelling evidence against Petitioner." Judge Welch, however, followed that sentence with a foonote indicating that what Judge Welch had previously found was the crux of the State's case against Adnan -- the Leakin Park pings -- "was the basis of the circuit court's grant of post-conviction relief and likely would be offered and attacked differently at a new trial." 

2.    The defendant's prior record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings

This, again, was easy, but in the opposite direction: Judge Welch found that Adnan had no history of flight or failure to appear.

3.    The defendant's family ties, employment status and history, financial resources, reputation, character and mental condition, length of residence in the community, and length of residence in this State

Again, this was an easy win for Adnan: "The circuit court finds that Petitioner has strong family ties, and his length of residence in the community and this State is consistent with his tender years at the time of his arrest and conviction."

4.    Any recommendation of an agency that conducts pretrial release investigations

According to Judge Welch, "[t]he circuit court sought, sua sponte,a report Pretrial Services, but one was not provided." Bad move by Pretrial Services. Without any recommendation, this factor didn't favor either side.

5.    Any recommendation of the State's Attorney

Clearly, the State's Attorney opposed Adnan's release, so this favored continued detention.

6.    Any information presented by the defendant or defendant's attorney

Justin had presented evidence of Vicki Wash's arguments at second bail hearing back in 1999. I'll let Judge Welch's opinion speak for itself:

The circuit court finds that Petitioner’s March 31, 1999 bail hearing was fundamentally flawed by the State’ argument which was xenophobic and a gendered cultural stereotype of Pakistani men. That such an argument was made without any basis in fact, and potentially considered by the judicial officer in determining flight risk is egregious that it negates the circuit court giving that bail decision any weight in this matter though there may have been other compelling evidence as to risk of flight.

7.    The danger of the defendant to the alleged victim another person or the community

Another win for Adnan. According to Judge Welch, the "Petitioner has met his burden in establishing that he poses no danger to the victim, since the victim is deceased, and believes that Petitioner poses no danger to any another person or the community."

8.    The danger of the defendant to himself or herself

Yet another easy win for Adnan: "The circuit finds there was no evidence indicating whether Petitioner poses a danger to himself."

9.    Any other factor bearing on the risk of a willful failure to appear and the safety of the alleged victim another person or the community including all prior convictions and any prior adjudications of delinquency that occurred within three years of the date the defendant is charged as an adult

Judge Welch's analysis of the ninth factor largely replicated his analysis of the first factor, with both favoring continued detention: "The circuit court finds that Petitioner poses a risk of failing to appear at a new trial based upon the potential of being convicted a second time and the likelihood of a life sentence being re-imposed."

10. Bigley Warden Md. Corr. for Women, 16 Md App. 1 (Md. 1972)

Although not a "factor" listed in Maryland Rule 4-216, the opinion of the Court of Appeals of Maryland in Bigley was something else that Judge Welch considered. According to Bigley, after a defendant has been convicted, "the courts should proceed with caution and grant bail pending appeal only where the peculiar circumstances of the case render it proper."

IV.    Conclusion

Therefore, despite most of the factors favoring release, Judge Welch found that he would not have granted Adnan release even if he had the authority to do so because (1) there is still some compelling evidence of guilt, despite potential problems with the cell tower evidence; (2) Adnan is charged with murder and related crimes; (3) Adnan could be sentenced to life +30 if convicted again; and (4) he should act with an abundance of caution because Adnan was convicted, even though Judge Welch has reversed that conviction.

Again, I would disagree with Judge Welch's balancing, but his conclusion is defensible under the applicable factors. I would also note, though, that Judge Welch's decision makes it seem likely that Adnan would be granted release if (1) the Court of Special Appeals denies the State leave to appeal; or (2) Judge Welch's opinion granting a new trial is upheld on appeal.

And that takes us to the current status of Adnan's case. The State filed its Application for Leave to Appeal on August 1st. It is now December 29th, almost four five months later. I think it's exceedingly likely that the Court of Special Appeals will either grant or deny the State leave to appeal by April 1st, or eight months after the State's initial filing. I also think that there's a good chance that decision will come by the end of February. But we'll just have to wait and see. 



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> The State filed its Application for Leave to Appeal on August 1st. It is now December 29th, almost four months later.

Four months after 1st August is 1st December. It's now almost five minutes later.

Posted by: Natan | Dec 29, 2016 1:50:25 PM

Thank you so much for your analysis, Colin. In regards to factors 1 and 9 (and assuming that Judge Welch found he had authority to grant bail) would the amount of bail mitigate those factors in Syed's favor? In other words would a bail set at (for example) $1 million substantially offset/reduce the risk of flight and in that way make him eligible for bail? Again, thank you.

Posted by: Richard Garrett | Dec 29, 2016 2:11:51 PM

Should the fact that he was a minor at the time of the crime and his arrest have been considered in the bail decision? The podcast noted some procedural issues back in 1999 that didn't take his status as a minor into account, and I thought they might come into play here.

Posted by: Steven Petrucelli | Dec 29, 2016 3:22:11 PM

I'm a little, no, a lot, concerned that Judge Welch still believes there is "compelling" evidence against Adnan. I feel that this cannot bode well for the future, since the evidence (such as it was) was never all that compelling.

Posted by: Beth | Dec 29, 2016 6:11:01 PM

I’m having a hard time reconciling this ruling with Judge Welch’s ruling for post conviction relief and vacating Adnan’s conviction based on the cell phone evidence but not also for the Strickland prejudice prong for Asia’s alibi testimony. Specifically, Judge Welch states, "there still is compelling evidence against Petitioner." However, his own ruling on the Asia alibi says that “the failure to investigate McClain’s alibi did not prejudice the defense because the crux of the State’s case did not rest on the time of the murder.” That sure sounds like Judge Welch concluded in his original ruling that Jay’s testimony absent the “corroborating” cell phone evidence was not “compelling evidence against Petitioner”. How can he conclude now that there remains such compelling evidence under the first of nine criteria? He makes no finding of what such compelling evidence is; at best he references the claims of the State (for items that, other than Jays claim’s, aren’t relevant evidence of Adnan actually killing Hae, even if you grant the State the most generous interpretation of such so-called evidence). Seems to me Judge Welch basically ignored his obligation to review “the nature of the evidence against the defendant” in a manner consistent with his own ruling for post conviction relief.

Posted by: FormerAgent | Dec 29, 2016 6:11:58 PM

Natan: Thanks.

Richard Garrett: Yes, that bail amount, plus the options of house arrest and/or electronic monitoring would reduce the flight risk. That’s part of why I think a judge would grant Adnan release in the event that COSA denies the State leave to appeal or there’s a final adjudication upholding Judge Welch’s order granting a new trial.

Steven Petrucelli: Yes, and I think Judge Welch did so under factor three: "The circuit court finds that Petitioner has strong family ties, and his length of residence in the community and this State is consistent with his tender years at the time of his arrest and conviction."

Beth and FormerAgent: I think it’s important to note that Judge Welch is saying that the evidence is “compelling” in the context of a bail/release ruling. That’s very different from saying that the evidence would be “compelling” at a criminal or even a civil trial. Judge Welch noted that (1) “the State presented a relatively weak theory as to the time of the murder because the State relied upon inconsistent facts to support its theory;” and (2) the State’s overall case against Adnan was weak enough that mere cross-examination of Waranowitz with the AT&T disclaimer would have been enough to create a reasonable probability of a different outcome at trial. So, Judge Welch saying that the evidence is “compelling” in this context means little more than that it passes the laugh test.

Posted by: Colin Miller | Dec 29, 2016 6:31:39 PM

In the event of a new trail actually taking place, what are the chances of Jay Wilds testifying this time around? What methods would be available to the State of Maryland to compel him to return from California to Baltimore to be its key witness? Can he refuse? If this occurs, how would it affect the time-frame of the trial? On what grounds? Would he have an attorney of his own this time around? Are there any remaining elements in his plea bargain that require him to testify this many years later? Without Jay Wilds, what would the State's case even look like?

Posted by: Vanishing Point | Dec 29, 2016 8:31:11 PM

Thank you so much Colin. I was wracking my brains trying to understand this decision. Brain relieved, heart -- not so much...

Posted by: Sophie Spencer | Dec 30, 2016 12:50:52 PM

Vanishing -- zero chance of there ever being a new trial. From the State's point of view, the issue is that Susan figured out the tapping in Jay's taped interviews. This would obviously destroy the State on cross. So they can't put him on the stand. That means they have no case.

Posted by: SomeGuy | Dec 30, 2016 2:54:39 PM

I agree with Colin. Welch's ruling is defensible if not a tad bit wimpy.

When he says there is still compelling evidence, he's almost certainly referring to the fact that there's an eyewitness whom the defendant agrees he was with that day testifying against him.

But that's about all that I'm willing to concede, and that's putting the entire thing it's the most generous framework possible.

Colin -- Could Adnan now apply to the court of special appeals for bail?

Posted by: Paul | Dec 31, 2016 1:57:53 PM

Colin, what do you make of Judge Welch's conclusion that Adnan's petition for bail should be considered in light of post-conviction status as opposed to pre-conviction?

Posted by: Ethan | Jan 8, 2017 10:53:29 PM

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