The Court of Special Appeals Grants the State & Adnan Leave to Appeal

Today, the Court of Special Appeals of Maryland issued an order that mainly did two things:

(1) granted the State leave to appeal the portion of Judge Martin Welch's order granting Adnan Syed a new trial based upon his cell tower/ineffective assistance of counsel claim; and

(2) granted the defense cross-leave to appeal the portion of Judge Welch's order denying Adnan a new trial based upon his alibi/ineffective assistance claim.

So, what does all this mean? 

The Court of Special Appeals Will Hear the State's Three Cell Tower Arguments

The State has made three arguments for reversing the portion of Judge Welch's order granting a new trial on the cell tower claim:

(1) Judge Welch abused his discretion in re-opening the post-conviction proceeding to consider the cell tower claim;

(2) Judge Welch erred by concluding that Adnan did not waive the cell tower claim; and 

(3) Judge Welch erred by finding that Cristina Gutierrez was ineffective in failing to use the AT&T disclaimer to challenge the cell tower evidence.

Pursuant to the Court of Special Appeals's order, it will hear all three of these arguments. In my opinion, the first argument is a nonstarter. The State claims that Judge Welch exceeded the scope of the remand order by the Court of Special Appeals. As Justin Brown has noted before, however,

The Remand Order instructed the Circuit Court to allow Syed to move to reopen the postconviction proceedings to address McClain’s January 2015 affidavit....The Remand Order also instructed the Circuit Court to exercise "its discretion" to "conduct further proceedings it deems appropriate."...This Court reiterated the Circuit Court’s latitude on remand on the very next page, directing the Circuit Court to "re-transmit the record" to the Court of Special Appeals "after taking any action [the Circuit Court] deems appropriate[.]"

Thus, the State's first argument looks like a clear loser.

The State's second argument is a closer call. Judge Welch relied upon Curtis v. State, 284 Md. 132 (1978), to find that (1) the right to the effective assistance of counsel is a fundamental right; (2) fundamental rights must be waived knowingly and intelligently; and (3) Adnan did not knowingly and intelligently waive his cell tower/ineffective assistance claim. As I've noted, the State hasn't yet adequately distinguished Curtis from Adnan's case, so it will be interesting to see whether they come up with any better precedent or arguments in their upcoming briefs. It's also worth noting that the Court of Special Appeals can find that Adnan waived the cell tower issue but still excuse the waiver.

The State's third argument is also a closer call. All of Judge Welch's factual findings about the meaning of the meaning of the AT&T disclaimer and the credibility of the respective cell tower experts are subject to a "clear error" standard of review. Therefore, we shouldn't expect the Court of Special Appeals to reject any of Judge Welch's factual findings. 

On the other hand, the court will apply a de novo (clean slate) review to Judge Welch's legal conclusion that Cristina Gutierrez was ineffective in failing to use the AT&T disclaimer to challenge the cell tower evidence. There's not a huge amount of precedent on this issue, and Judge Welch primarily relied on case law from other jurisdictions in granting Adnan relief. It will be interesting to see whether either side can find any additional precedent that supports its position.

Overall, I think that the Court of Special Appeals does not reverse Judge Welch on the cell tower issue, but I'd like to see the cases cited by both sides on the issue.

The Court of Special Appeals Will Hear the Defense's Two Asia Arguments

The defense has made two arguments for reversing the portion of Judge Welch's order denying Adnan a new trial on the Asia/alibi issue:

(1) Judge Welch erred in finding no violation of the right to effective assistance based upon failure to contact Asia McClain; and

(2) Judge Welch erred by not doing a cumulative prejudice analysis.

Pursuant to the Court of Special Appeals's order, it will hear both of these arguments. Each of these arguments is related to the Supreme Court's opinion in Wearry v. Cain, which came after the reopened postconviction review proceeding. The defense's first argument is that Judge Welch should have found that Cristina Gutierrez's failure to contact Asia McClain was prejudicial. Judge Welch rejected this claim, finding that the crux of the State's case was the intersection among the Leakin Park pings, Jay's testimony about the burial, and Hae's body being found in Leakin Park.

In Wearry, however, the Supreme Court found that corroborated testimony about post-murder events is insufficient to support a conviction for murder when the evidence related to the murder itself is inconsistent and uncorroborated. The defense claims that the same applies to the "crux" of the State's case.

This then takes us to the defense's State's second claim, which is that Judge Welch should have considered the cumulative prejudice of (1) failure to contact Asia McClain; and (2) failure to challenge the cell tower pings. This again comes from Wearry, which held that the prejudice analysis should be done cumulatively rather than on an error-by-error basis.

Overall, I think that the defense actually has a stronger argument on the alibi claim than the cell tower claim. Using the same "clear error" analysis, the Court of Special Appeals is not going to disturb Judge Welch' factual findings. And, in terms of the legal analysis, it's tough to see the State overcoming Wearry. We'll have to wait for the State's briefs, though, to see how they try.

The Court of Special Appeals Will Consider the State's Motion for Limited Remand

The State filed a Conditional Motion for Limited Remand so that evidence related to two sisters' claims about Asia McClain could be considered. The Court's order today refers this Motion to the panel of judges hearing the appeal. As I've noted before, I don't see any realistic way that the Motion is granted. And, if it's not, the sisters will play no role in the appeal.

Timing

Today's order notes that argument on the appeal is scheduled for the June 2017 session. This will only be legal argument. There will be no new evidence or witnesses. The State has until February 27th to file its appeal brief. The defense State has until March 29th to file its cross-appeal brief. And then, the State has until April 28th to file its response to the defense brief.

-CM