EvidenceProf Blog

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

Monday, January 30, 2017

A Quick Look at the Application for Leave to Appeal the Bail Decision in the Adnan Syed Case

On Friday, Justin Brown filed an application seeking leave to appeal Judge Welch's denial of the defense's motion for release pending appeal in the Adnan Syed case. I'm in the process of finalizing the first in a series of Undisclosed episodes about a South Carolina case, so my analysis of this application will be briefer than usual.

In the application Justin Brown makes three arguments:

1.    The circuit court applied the wrong standard in denying release

In denying Adnan release pending the State's appeal of the order granting Adnan a new trial, Judge Welch applied Maryland Rule 4-349, which applies in situations where the defendant seeks bail after conviction. In the application, Brown counters that Judge Welch should have applied Maryland Rule 4-216(d), which states that

A defendant charged with an offense for which the maximum penalty is life imprisonment or with an offense listed under Code, Criminal Procedure Article, § 5­202(a), (b), (c), (d), (e), (f) or (g) may not be released by a District Court Commissioner, but may be released before verdict or pending a new trial, if a new trial has been ordered, if a judge determines that all requirements imposed by law have been satisfied and that one or more conditions of release will reasonably ensure (1) the appearance of the defendant as required and (2) the safety of the alleged victim, another person, and the community. (emphasis added).

This seems like a pretty straightforward argument: Rule 4-349 applies to defendants who have been convicted and not granted a new trial while Rule 4-216(d) applies to defendants who have been convicted and granted a new trial. Because Adnan falls in the latter category, Judge Welch should have applied Rule 4-216(d).

2.    This error was not harmless

As I noted in a prior post, Judge Welch found that a majority of factors favored the release of Adnan Syed as opposed to his continued detention. But this analysis was done against the backdrop of Maryland Rule 4-349, which states that "the burden of establishing that the defendant will not flee of pose a danger to any other person or to the community rests with the defendant." In other words, if the analysis of the bail factors was close, Adnan should remain detained because the baseline presumption is detention.

Conversely, Rule 4-216(d) contains no such presumption. Instead, the general presumption is that a defendant will be released under Rule 4-216(d). As the application notes, the Court of Appeals of Maryland concluded in Wheeler v. State, 864 A.2d 1058, 1064  (Md.App. 2005) that "[t]here is nothing punitive about this rule [4-216], which -- in most cases -- results in the defendant's pretrial release." Therefore, if the analysis of the bail factors was close, Adnan should be released because the baseline presumption is release.

3.    The circuit court incorrectly concluded that the remand order limited its discretion

As I noted in a prior post, Judge Welch found that the Court of Special Appeals's remand order prevented him from granting Adnan release because he was instructed to return the case to the appellate court after conducting further proceedings. In this application, Justin Brown makes two arguments: (1) the remand order gave the circuit court broad discretion to "conduct any further proceedings it deems appropriate," which would include bail proceedings; and (2) an appeal does not divest the circuit court of jurisdiction, meaning that circuit courts retain the inherent power to make rulings as long as they don't "interfere with the appeal or the issues to be decided in the appeal." Folk v. State, 142 Md.App. 590, 598 (Md.App. 2002). Given that a bail decision wouldn't interfere with the decision on whether to grant Adnan a new trial, the application asks for reconsideration of the bail decision.


While I believe that the application presents compelling arguments, I have the same assessment of it as Adnan's initial bail motion. I don't think it will be successful. I think the problem is that the bail rules in Maryland are ambiguous and susceptible to interpretation, so I don't think that the Court of Appeals of Maryland will second guess Judge Welch's decision. The next significant date in this case is February 27th, when the State is scheduled to file its appellate brief in the case.



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Since this currently is an unapproved application for leave to appear, what are the chances of this being addressed after the state's appeal and adnan's cross-appeal have been ruled on? Is this a way to quicken the bail application after that or will this more likely effect his freedom before the main appeals have been taken up? I'm not a lawyer at all, so I apologize for any errors in my legal vocabulary.

Posted by: Jeff | Jan 31, 2017 12:03:41 AM

Good question Jeff! I hadn't considered that angle. Colin?

Posted by: Paul | Jan 31, 2017 6:44:14 AM

I was feeling soooo hopeful when you highlighted the fact that the circuit court applied the wrong standard. But, now, your conclusion that it may not be enough to have Judge Welch's ruling reversed is raising serious doubts about a positive outcome for Adnan. Sad that he has to be penalized because of the ambiguity of bail rules. THAT should be against the law! Thanks Colin, as always, for an enlightening blog!

Posted by: Sophie Spencer | Jan 31, 2017 10:27:40 PM

Is there a standard the court uses when deciding whether to grant leave to appeal? And if leave is granted, what standard will the appeals court use in reviewing Judge Welch's order denying bail?

Posted by: Ann | Feb 1, 2017 5:52:27 PM

Colin stop being so busy.

Posted by: Jeff | Feb 7, 2017 11:59:56 AM

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