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.

-CM