EvidenceProf Blog

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

Tuesday, February 28, 2017

Clearly Erroneous?: Why COSA is Especially Unlikely to Reverse Judge Welch's Factual Findings on the AT&T Disclaimer

As I've noted in my last three posts, the State cited three cases in its Brief of Appellant in the Adnan Syed case on the substantive issue of whether Cristina Gutierrez was ineffective in failing to use the AT&T disclaimer to cross-examine the State's cell tower expert: (1) Maryland. v. Kulbicki (post); (2) United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991) (post); and (3) Henry v. State, 772 S.E.2d 678 (Ga. 2015) (post). As I noted in each of those posts, I don't think any of these cases actually help the State's argument. That said, they are all legal precedents, and the Court of Special Appeals of Maryland will engage in a de novo/clean slate review of the legal question regarding whether Adnan received the ineffective assistance of counsel.

The State, however, spent the bulk of its Brief of Appellant claiming that Judge Welch made factual errors in his assessment of the credibility of the cell tower experts at the PCR proceeding. In this post, I will address the legal standard that the Court of Special Appeals will apply to these arguments.

Section C of the State's Brief of Appellant is titled, "Conflicting expert interpretations at post-conviction hearing." This section takes up pages 9-14 of the State's brief. The State's argument is that Judge Welch should have (1) credited Agent Fitzgerald's conclusion that the AT&T disclaimer did not call into question the reliability of using incoming pings to determine location status; (2) discredited Grant's conclusion that the A&T disclaimer did not call into question the reliability of using incoming pings to determine location status; and (3) discredited Waranowitz's affidavit, which indicated that he would not have testified as he did if he had seen the A&T disclaimer before trial.

I'm not going to address the State's substantive arguments in this post; instead, I'm going to discuss the legal standard that the Court of Special Appeals of Maryland will apply to these arguments.

As the Court of Special Appeals of Maryland noted in State v. Purvey, 740 A.2d 54 (Md.App. 1999), 

Within the Strickland framework, we will evaluate anew the findings of the lower court as to the reasonableness of counsel's conduct and the prejudice suffered. Whether counsel's performance has been ineffective is a mixed question of fact and law....As a question of whether a constitutional right has been violated, we make our own independent evaluation by reviewing the law and applying it to the facts of the case....We will not, however, disturb the findings of fact and credibility determinations of the post-conviction court, unless they are clearly erroneous....Instead, we "re-weigh the facts as accepted in order to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed." (emphasis added).

Since it decided Purvey, the Court of Special Appeals has continued to apply this analysis. See, e.g., State v. Latham, 959 A.2d 90 (Md.App. 2008), ("We will not, however, disturb the findings of fact and credibility determinations of the post-conviction court, unless they are clearly erroneous.").

Therefore, the Court of Special Appeals of Maryland needs to find that Judge Welch's conclusions were clearly erroneous to disturb his conclusions regarding (1) the applicability of the A&T disclaimer to incoming ping reliability for determining location status; and (2) the credibility of Fitzgerland, Grant, and Waranowitz.

So, what does clearly erroneous mean? The Court of Special Appeals of Maryland gave its fullest explication in State v. Brooks, 812 A.2d 342 (Md.App. 2002), where it held that

A conclusion that a verdict generally or a finding of fact specifically is clearly erroneous is not a wild card that appellate courts may freely play (although they sometimes do) whenever they strongly disagree with a trial judge's fact-finding. If faithfully applied as it has been regularly defined, clearly erroneous holding should be limited to a situation where, with respect to a proposition or a fact as to which the proponent bears the burden of production, the fact-finding judge has found such a proposition or fact without the evidence's having established a prima facie basis for such a proposition or fact. The holding should be confined to situations where, as a matter of law, the burden of production has not been satisfied.

A finding of fact should never be held to have been clearly erroneous simply because its evidentiary predicate was weak, shaky, improbable, or a “50–to–1 long shot.” A holding of “clearly erroneous” is a determination, as a matter of law, that, even granting maximum credibility and maximum weight, there was no evidentiary basis whatsoever for the finding of fact. The concern is not with the frailty or improbability of the evidentiary base, but with the bedrock non-existence of an evidentiary base.

It is akin to holding, as a matter of law, that the evidence was not legally sufficient to support a verdict. It is not akin to a judge's ruling, in awarding a new trial, that in his judgment the verdict was, as a matter of fact, against the weight of the evidence....The trial judge must be logically wrong, as a matter of law, and not merely probably wrong, as a matter of fact.

he holding that a judge has been clearly erroneous in a court trial requires, of course, the same assessment by the appellate court of the evidentiary base that must be made when, in a jury trial, the holding is that the evidence was not sufficient to have permitted the trial judge even to submit the case to the jury. The error is not with fact-finding per se but with the threshold legal decision even to submit the issue to the fact-finding process. 

When, on the other hand, a judge has some evidentiary basis that legally permits him to consider the existence of a fact, what he then decides, as a matter of fact, is beyond the challenge of the “clearly erroneous” test, even if in the minds of many his factual conclusion seems highly questionable. We do not second-guess the decisional process, as a matter of fact. We may only determine, as a matter of law, that there was no basis even for engaging in the decisional process. (emphases added).

So, what does all this mean? It means that a judge's factual finding is only "clearly erroneous" when it is based on no evidence, not when it's based on (what opposing counsel says is) weak evidence or evidence that is contradicted by (what opposing counsel is) stronger evidence. And what this means is that a judge's ruling cannot be clearly erroneous when it is resolving a classic "battle of the experts," with each party's expert offering conflicting interpretations of the same evidence.

Maybe the most on point case out of Maryland is Burroughs Intern. Co. v. Datronics Engineers, Inc., 255 A.2d 341 (Md. 1969). Datronics was a case involving a corporate merger/take-over.

Among the accounts receivable included in the 30 June 1962 balance sheet was an amount of $15,205.98 representing the total of three invoices issued by Strand for design services performed under an American Radio Telephone Company purchase order.

According to the Court of Appeals of Maryland,

The real question is whether, as a matter of accepted accounting principles, the receivable was properly treated in the balance sheet. As to this, the experts disagreed. Based on our review of the evidence, we cannot say that the lower court's conclusion was clearly erroneous. The court could properly find, as it did, that under all the circumstances the adjustment was not properly allowable.

Of course, this makes sense under the "clearly erroneous" standard. Even if the Court of Appeals found experts on the losing side to be more credible/logical in their analysis, there was still a battle of the experts, with some experts having a different interpretation of the propriety of the treatment of the receivable in the balance sheet.

The same applies in Adnan's case. The Court of Special Appeals might have a very different interpretation of the credibility of the experts and the propriety of their conclusions regarding the A&T disclaimer than Judge Welch. But, because the defense presented experts who supported their contrary position, the Court of Special Appeals isn't really in a position to find clear error.



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When are you going to finally understand that AW was not an expert on billing records and therefore there was no cross-examination to be had?

Posted by: Not an Expert on Billing Records | Feb 28, 2017 8:25:40 PM

Not an Expert on Billing Records: If AW wasn't an expert on billing records, then CG was ineffective in stipulating to the admission of the cell tower exhibits because an expert would have been required to admit them.

Posted by: Colin Miller | Mar 1, 2017 2:30:45 AM

Colin- First, thank you for your efforts here. As a layperson I find both the subject matter and your insights fascinating.

Question: Was Judge Welch required to find that Gutierrez *did* receive Exhibit 31 with the interpretation disclaimer, in order to find ineffective assistance of counsel? Could the State have successfully argued that her assistance was reasonable given a presumption that she hadn't received it

Posted by: Jonathan | Mar 1, 2017 10:07:40 AM

Jonathan: It was either Brady of IAC. If Judge Welch found issues with the State's disclosure, it would have been a Brady violation. If Judge Welch found that the State's disclosure was sufficient, he would have found IAC. He went with the latter option.

Posted by: Colin | Mar 2, 2017 6:43:24 AM

If one of your students had written this filing in a mock setting as an assignment, what grade would you have given them?

Posted by: Robert | Mar 2, 2017 7:25:34 AM

Not a billing document? Sounds a lot like Seamus Duncan. Who else is afraid to post using the handle their known by?

Interesting he went with a wholly irrelevant non-sequitir this time, instead of playing his greatest hits favorite, "Hey Colin, why won't you publish document X, hm!? Everyone would know I'm right and you are a lying liar if only you'd publishdocument X!!"

Did you finally run out of unpublished documents to make the accusation about Seamus?

Posted by: Paul | Mar 3, 2017 4:16:24 PM

"It was either Brady of IAC. If Judge Welch found issues with the State's disclosure, it would have been a Brady violation. If Judge Welch found that the State's disclosure was sufficient, he would have found IAC. He went with the latter option."

Is the Brady door forever closed in light of Welch's ruling? I think there's a case to be made that Welch was wrong in this ruling, but this was a 'factual finding' and therefore not likely to be overturned.

Posted by: Michael | Mar 3, 2017 5:29:28 PM

Robert: No idea.

Michael: It's not forever closed, but I don't think the defense is raising the issue on appeal.

Posted by: Colin | Mar 6, 2017 3:52:27 AM

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