EvidenceProf Blog

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

Friday, January 20, 2017

Possibly the Two Most Important Parts of COSA's upcoming opinion in the Adnan Syed Case

As I noted on Wednesday, the Court of Special Appeals of Maryland (COSA) will consider five or six issue in the Adnan Syed case:

1.    Did Judge Welch abuse his discretion in hearing the cell tower claim;

2.    Did Adnan waive the cell tower claim;

3.    If Adnan waived the cell tower claim, should the court excuse the waiver;

4.    Did Judge Welch err in finding ineffective assistance of counsel on the cell tower claim;

5.    Did Judge Welch err in finding no ineffective assistance/prejudice on the Asia/alibi claim; and

6.    Did Judge Welch err in not doing a cumulative prejudice analysis?

If we're operating under the assumption that the Court of Appeals of Maryland (Maryland's highest court) will allow the losing party to appeal COSA's opinion, then COSA's opinion on issues #1 and #3 might be he most important. Why?

Issues #2, #4, #5, and #6 are all legal issues, meaning that they are subject to de novo, or clean slate, review. In other words, the Court of Appeals would owe no special deference to COSA's decisions on those issues. Imagine that, on issue #4, COSA reverses Judge Welch's opinion on the cell tower issue and finds that Adnan is not entitled to a new trial. The Court of Appeals would still look at this issue with a fresh set of eyes and reach its own conclusion based upon an independent review of the facts and law. Conversely, imagine that COSA affirms Judge Welch's opinion on the cell tower issue and finds that Adnan is entitled to a new trial. Same score. The Court of Appeals would still do its own independent analysis on appeal. And the same goes for issues #2, #5, and #6.

But what about issue #1? Issue #1 deals with COSA's own remand order. The State is claiming that Judge Welch's exceeded the authority granted to him by COSA's remand order in agreeing to hear the defense's cell tower claim. On the other hand, the defense claims that COSA's remand order gave Judge Welch discretion to hear additional issues beyond the issue that led to the remand: the Asia/alibi issue. 

So, why will COSA's decision on this issue be so important? I can't imagine the Court of Appeals reversing COSA on this issue because it is COSA interpreting its own remand order. If COSA finds that Judge Welch complied with its remand order, the Court of Appeals isn't going to second guess that opinion. And the same holds true if COSA finds that Judge Welch violated the remand order. So, this means that COSA will likely have the last word on the issue. 

As I've noted, I think that the defense will win on this issue, but what if they don't? Well, here's where things get bizarre: Judge Welch has already found that there were grounds for reopening Adnan's postconviction proceeding to hear the cell tower claim under Maryland Rule of Criminal Procedure 7-104. So, if COSA finds that Judge Welch violated the remand order, and if Adnan doesn't win his appeal on the Asia/alibi issue, we would likely see the defense filing a new motion to reopen under Rule  7-104, and the whole process would start over again. Of course, this would be ridiculous, which is precisely why I don't see it happening.

And what about issue #3? As I've noted before, if COSA finds that Adnan waived the cell tower claim, it can still excuse that waiver under Maryland Court Rule 8-131(a). So can the Court of Appeals. As the Court of Appeals of Maryland noted in Office of Governor v. Washington Post Co., 759 A.2d 249 (Md. 2000), "both the Court of Special Appeals and this Court each have 'independent discretion' to excuse the failure of a party to preserve an issue for appellate review."

So, imagine that COSA finds that Adnan waived the cell tower claim but excuses the waiver. It has independent discretion to do so, and the Court of Appeals likely wouldn't have authority to reverse that judgment. Of course, even if COSA didn't excuse waiver, the Court of Appeals would have independent discretion to excuse any possible waiver. 

Now, it's entirely possible that COSA doesn't even address Rule 8-131(a). But, if it does, and it rules in favor of Adnan, the State essentially has no chance to appeal on issues #2 and #3.



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Paraphrasing Justin Brown, this case is going down paths that have never been walked on.

Posted by: Gavin | Jan 20, 2017 6:03:03 AM

I am very glad the lawyers understand this as I hopelessly confused

Posted by: Perer Sterns | Jan 20, 2017 12:57:11 PM

Confusing. But my takeaways here are: 1) the State is trying to exploit every possible loophole to keep Adnan's conviction in place; 2) there's a lot of stuff to think through and that process will take some time; 3) something will stick and we're back to where we were before. After all that, Adnan will either get released, offered a plea, or go through a new trial. Is this about right?

Posted by: Simone | Jan 20, 2017 3:27:31 PM

Thanks Colin. Could you explain why "the Court of Appeals likely wouldn't have authority to reverse" if COSA agreed to excuse the waiver, but would have "independent discretion" to excuse it themselves if COSA didn't excuse it. It seems odd that COA can override a negative COSA decision but can't override the opposite positive COSA decision.

Posted by: Anonymouse | Jan 20, 2017 4:19:45 PM

Have COSA or COA ever excused a waiver for a murder conviction?

Posted by: ben | Jan 20, 2017 7:32:13 PM

How often does the prosecution go to such lengths (to avoid a new trial) in Maryland? Is this zeal unusual?

Posted by: Mike Barnes | Jan 21, 2017 1:52:07 AM

Gavin: Indeed.

Peter: It’s complicated.

Simone: I think the State loses its appeal. After that, I’m not sure whether we’ll see a plea deal or a retrial.

Anonymouse: The way I read the precedent, both COSA and COA can excuse waiver, with COA lacking authority to reverse COSA’s excusal or waiver.

Ben: Yes. See, e.g., http://caselaw.findlaw.com/md-court-of-appeals/1162875.html.

Mike: There are some cases where prosecutors join in defense appeals, but they’re pretty rare.

Posted by: Colin Miller | Jan 21, 2017 3:15:34 AM

Your ana lysis sheds light on the obscure turns procedure can make

Posted by: Linnette | Jan 21, 2017 5:47:13 AM

Colin -- I only just realized that COSA and the Court of Appeals are 2 different things. I just thought COSA was the abbreviation for the Court of Appeals. Do many states have the COSA layer in the process? It seems like the idea of COSA is for efficiency but not sure that is really working here or maybe I'm misunderstanding the role of COSA.

Posted by: Jodi | Jan 21, 2017 7:50:16 AM

Colin, I remember someone in the past saying that COSA only ever allow a leave to appeal on around 2% of cases.

Do you know what the odds are once you are granted leave to appeal by COSA?

Posted by: ben | Jan 22, 2017 7:41:29 PM

@Colin --

Maybe it's just me, but the "See, e.g." link in your reply to Ben seems to lead to a blank page. Is there a case name I can search? I'd like to read it.

Posted by: Ann | Jan 23, 2017 10:47:03 AM

I know that a lot of this procedure is specific to Maryland, and leaving Adnan's dreadful situatiion aside, the court papers I have read, and especially your analyses, have been truly enlightening. You are a superb educator, Mr. Miller.

Posted by: Hal Porter | Jan 24, 2017 4:57:26 PM

Great overview. Re Issue #1:  "If COSA finds that Judge Welch complied with its remand order, the Court of Appeals isn't going to second guess that opinion. And the same holds true if COSA finds that Judge Welch violated the remand order. "

I'm not sure I agree that COA would not second guess a COSA finding that Judge Welch violated the remand order. The question is whether Judge Welch abused his discretion. Given the very high threshold required for a finding of abuse of discretion, I think it is very likely that COA would review (and reverse) COSA if it found Judge Welch abused his discretion. Only where the trial court's discretion is “‘manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons,’ or when ‘no reasonable person would take the view adopted by the [trial] court’” is it an abuse of discretion. Wilson-X v. Dep't of Human Resources, 403 Md. 667, 677 (2008). To survive appellate review, Judge Welch's interpretation does not need to be the same as COSA's--it only needs to be reasonable.

Posted by: SP | Jan 25, 2017 1:30:42 PM

Jodi great question, I was actually wondering the same thing!
Here is a description of Maryland’s Court System:


The Court of Special Appeals has only been around in MD since 1966, so it’s a fairly new legal structure within the state.
Here is what the MD court system chart looks like:


Short video on the Maryland Court System: http://www.courts.state.md.us/courts/about.html
I was curious about this as well, because I live in VA and our court system is structured like this:


So I was curious about why the court of special appeals was it created? And I got my answer back pretty quickly: “It was established in 1966 to ease the caseload of the Court of Appeals and to facilitate resolution of cases requiring appellate adjudication.”

And as far as I could tell, I didn’t dig into this much, Maryland is the only US state to have a Court of Special Appeals.

Posted by: Gavin | Jan 26, 2017 7:54:20 AM

It is interesting to note; that VA highest court is the Supreme Court of Virginia. Due to every states own history and individual legal precedents, I now want to compare the structure of court systems in all 50 states. I’m sure a legal scholar out there has done this in some capacity.

The Court Statistics Project, from the National Center for State Courts has been very helpful.
I mean look at the difference in structure between these 5 state courts:

New York:


South Carolina:








Posted by: Gavin | Jan 26, 2017 8:39:43 AM

Jodi: I'm from a state where the Supreme Court is the highest court. I'm not as familiar with Maryland state law, and had to look up COSA vs. Court of Appeals. Court of Special Appeals (COSA) is the 2nd highest court, and most cases appeal to them first (exception for criminal cases where death penalty is imposed). Court of Appeals is the state's highest court, same as the supreme court of many other states. COSA was created in 1966 to ease the burden of Court of Appeals.

Posted by: Camille EB | Jan 27, 2017 6:26:25 AM

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