EvidenceProf Blog

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

Thursday, March 30, 2017

Adnan's Brief, Take 2: Why the State Won't Win on Scope as a Standalone Issue

In the Adnan Syed case, the State technically has three ways to win its appeal of Judge Welch's ineffective assistance/cell tower ruling: (1) establish that the ineffective assistance/cell tower issue was beyond the scope of the remand order; (2) establish that Adnan has waived this issue; or (3) establish that Adnan did not receive ineffective assistance of counsel in connection with the cell tower evidence.* I'm going to reserve my judgment on which side will win most of the issues in this appeal until after the State submits its final brief or maybe even until after oral arguments. But, at this point, I feel confident predicting that the State won't win on scope as a standalone issue.

This conclusion isn't even really based that much on yesterday's Brief of Appellee/Cross-Appellant, which makes several solid arguments on the scope issue, including:

-The Court of Special Appeals "could have provided 'directions' that the remand focus solely on the McClain affidavit;"

-The Court of Special Appeals "twice instructed the Circuit Court to conduct any proceedings that it deemed appropriate;"

-The State selectively cited language from the remand order which seemed to indicate that the defense could only supplement the record on the Asia/ineffective assistance issue, leaving out language that indicated the defense could do "other things;"

-"[T]he 'interests of justice' standard for reopening post-conviction proceedings 'has been interpreted to include a wide array of possibilities.'"

-The cell tower supplement was not "part of an impermissible, second post-conviction petition."

I could go into more detail on all of these (and other) arguments, but I don't think it's necessary. Why? I can't imagine the Court of Special Appeals finding (1) Adnan has not waived the ineffective assistance/cell tower claim; and (2) Adnan received ineffective assistance of counsel with regard to the cell tower evidence; but (3) Judge Welch exceeded the scope of the remand order by hearing the issue.

As the Brief of Appellee/Cross-Appellant notes, motions to reopen are governed by Maryland Rule of Criminal Procedure 7-104, which (1) does not contain a limitation on the number of motions to reopen; and (2) does not contain a statute of limitations. So, imagine that Adnan wins on the waiver and ineffective assistance issues but "loses" on the scope issue. Would it make sense for the Court of Special Appeals to reverse Judge Welch's order granting a new trial? No.

It wouldn't make sense because it would create a "Groundhog Day" scenario. The Court of Special Appeals would be telling Adnan: You having a winning argument, and you haven't waived it, but Judge Welch wasn't supposed to consider it because our remand order was limited in scope. But now, you can file a new motion to reopen, and you can have a new PCR hearing, and the result of that hearing will likely be the same. And then, the State can appeal again, and then, we'll hear that appeal. See you in a couple years.

This makes no sense, given considerations of judicial economy and fairness. And therefore, it's not a result that we'll see. Now, I could see the Court of Special Appeals finding that Adnan waived the cell tower claim or that he has a losing argument on the merits and also finding that Judge Welch exceeded the scope of the remand order. But this would require the Court to find for the State on one or both of the other cell tower issues. I don't see any way that the Court rules for Adnan on waiver and the merits but against him on scope.


*The are two ways that the State could win on this issue: (1) by proving that trial counsel's performance was reasonable; or (2) by proving lack of prejudice.



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Are there any rules, or is there any case law, supporting this highly sensible* analysis (*I don't always have much faith in the actors of the justice system doing the sensible thing, unless there's a rule telling them to)

Posted by: Cupcake | Mar 30, 2017 10:40:40 AM

Will the defence (or state) be saving stuff back for oral arguments? Or do they try to cram all the main points into their briefs? Just wondering why the defence didn't reference CG's cell tower-related 'I don't care' comment from trial one, given this seems to reduce the weight of any suggestion her lack of cross on the fax sheet issue was strategic.

Posted by: Cupcake | Mar 30, 2017 10:51:18 AM

Couldn't the COA find for the state on the scope and punt on the other two? Or is the COA required to make substantive findings on all three issues? It seems that, procedurally, if they find that the scope was exceeded, they could decline to address the other issues because they would be improperly before the COA in the first place.

Posted by: Brandon | Mar 30, 2017 12:25:17 PM

Cupcake: The closest related doctrine that jumps to mind is the futility doctrine. Usually, a litigant has to exhaust available administrative remedies before bringing an action in court. Under the futility doctrine, however, the court can waive that exhaustion requirement if pursuing administrative remedies would be futile.

Also, the defense very well could be saving certain points for oral arguments.

Brandon: They could punt on the other two issues, but doesn’t that kind of create the same issue? In other words, why would the court reverse on the scope issue but not disturb Judge Welch’s waiver and merits conclusions? In that case, the message would still be that Adnan, “See you in a couple years.”

Posted by: Colin | Mar 30, 2017 12:43:53 PM

Cupcake & Colin:
According to http://www.courts.state.md.us/cosappeals/pdfs/cosaguideselfrepresentation.pdf
during oral arguments "The parties will argue their case in person and they may not offer legal arguments different from those they made in their briefs."
I'm no lawyer, but I take that to mean no new legal angles and no new case law, but that they can finesse arguments from the brief, and maybe they could drop in a factual bombshell, so long as the supporting evidence is already on the record. Which is what happened with this new "bombshell" - the evidence for it is the Trial transcripts that have been part of the record all along.

Posted by: Anonymouse | Mar 30, 2017 3:24:41 PM

Anonymouse: That analysis is correct. The defense could, for instance, point to Gutierrez’s statement about not caring to look at Exhibit #31 but couldn’t point to new, non-record evidence or make a novel legal argument.

Posted by: Colin | Mar 30, 2017 5:30:27 PM

Colin: Why on earth would COSA reach the waiver issue or the merits of the cell tower issue if it found Judge Welch wasn’t allowed to hear the claim in the first place? The court would just stop right there.

Let’s say COSA then moves on to the alibi issue and affirms Judge Welch. That means it’s over for Syed. Welch’s order granting a new trial based on the cell-tower claim would be reversed, and his ruling on the alibi issue would be affirmed. No new trial.

Then, you seem to believe, Syed could just “reopen” his PCR petition for the sole purpose of asserting the cell tower claim – a claim that was never included in his original PCR petition. You really think a petitioner can just keep asserting brand new claims under the guise of a “reopening,” even long after all the claims included in the original petition have been disposed of? If that’s the case, what is left of the rule that defendants in Maryland only get ONE PCR petition? Nothing, it seems to me. As long as a defendant files one petition within 10 years, he can keep reopening it and asserting new claims as much as he likes. That can’t be the law.

Posted by: Sam | Mar 31, 2017 6:39:30 AM

Sam: 1. Courts routinely address issues even after resolving threshold issues in a way that doesn’t require further analysis, especially when their ruling could be appealed (in this case to the Court of Appeals of Maryland. 2. As the defense notes, while there is a limit of one PCR petition, there is no limit on the number of motions to reopen. If Adnan didn’t waive his ineffective assistance/cell tower claim, he could raise it in a motion to reopen. That’s a big part of why I think COSA would address waiver even if it rules against Adnan on scope.

Posted by: Colin | Mar 31, 2017 12:28:02 PM

Colin: Please help me understand something. Let’s forget about the scope of the remand order for a minute. Imagine that when Syed originally appealed the PCR court’s ruling, COSA denied his request for a remand. Instead, imagine COSA reached the merits and affirmed Judge Welch’s original ruling (which was *against* Syed across the board), and assume the CoA denied cert. Could Syed have then re-opened his PCR petition solely for the purpose of asserting the cell-tower claim?

Posted by: Sam | Mar 31, 2017 12:59:06 PM

Sam: In that scenario, Adnan could have filed a motion to reopen solely on the cell tower claim pursuant to Maryland Rule of Criminal Procedure 7-104. If that Circuit Court found that this issue was not waived and that reopening was in the interests of justice, the PCR proceeding would have been reopened.

Posted by: Colin | Mar 31, 2017 1:27:30 PM

Colin, don’t you see how CRAZY that is? If petitioners can just keep reopening their original petitions solely for the purpose of asserting new claims, then the one-petition-only rule is obliterated. As long as a defendant files a PCR petition within 10 years, asserting even a single claim, he can file new claims whenever he wants. He could file a new claim 30 years later by just “reopening” a closed petition.

Rule 7-104 allows the court to reopen a petition in order to reassess a claim that was previously denied. The only exception is if the petitioner wants to reopen and assert a claim of ineffective assistance of postconviction counsel, which of course could not have been asserted in an original PCR petition.

What Syed did in reality is almost as absurd as my hypothetical. The case was reopened so the judge could reassess, with the benefit of new information, the Asia McClain alibi claim. Syed then smuggled in an altogether new claim. Syed’s lawyers and Judge Welch seemed to believe that just because the petition had been “reopened,” it could be “freely amended” to add a new claim. That position is based on the assumption that a PCR petition that has been reopened has the same status as an original petition that hasn’t yet been ruled upon. In other words, Syed’s position has to be that “the reopening of a postconviction proceeding permits a defendant to raise any issue that could have been raised in the initial postconviction petition.” That’s what the appellant argued in Arrington v. State, 411 Md. 524 (2009). He lost. See id. at 544-49.

Posted by: Sam | Mar 31, 2017 2:18:02 PM

Sam: But consider the opposite side of the coin. I don’t know how you feel about Adnan’s guilt or the AT&T disclaimer. But assume a version of Adnan’s case with exceedingly weak evidence of his guilt and an AT&T disclaimer that everyone agrees means that all incoming calls are never reliable for determining the location of the phone. Should a defendant like that be denied relief and spend the rest of his life in prison because his attorney didn’t initially realize this was a winning issue?

Posted by: Colin | Mar 31, 2017 3:21:29 PM

Colin: I don’t mean to go all Judge Gorsuch on you, but if Syed truly is innocent, then my heart goes out to him. But we’re lawyers, and we have to look to the law. The point of the one-petition-only rule is that a defendant must bring all his claims in a single petition (and may add more through amendment *before* the petition is adjudicated). That rule makes no sense if the petition can be reopened to add altogether new claims.

In Arrington, the petitioner got his petition reopened to address a DNA issue, but “also put forth a new ineffective assistance of counsel claim, alleging that his lawyer failed to make use of critical exculpatory evidence contained in various police reports.” 411 Md. at 535. The court didn’t allow that.

I don’t want to sound like I’m attacking you personally, but your posts on this blog are awfully vocal about problems with the State’s briefs and mum on the weaknesses in Syed’s legal arguments. If your job here is to advocate for Syed, full stop, that’s fine, but I think you should make that clearer. My sense (when I wandered onto this site) was that you were a law professor presenting an objective analysis of the legal issues in the case. As a law professor, can you admit, in light of Arrington, that there’s a serious likelihood Judge Welch will be reversed on the cell-tower issue?

Again, if Syed truly is innocent, then I feel for him. But there are other avenues for relief, such as a petition for a writ of actual innocence or even a request for a pardon from the governor.

Posted by: Sam | Mar 31, 2017 4:47:04 PM

Sam: My first post on Adnan’s legal prospects in this case concluded that he had a clear losing argument on his ineffective assistance/plea bargain case. It’s an opinion I continue to express, including in a post last week. Since, then, I posted that I thought (1) COSA would grant leave to appeal; (2) COSA would remand to the Circuit Court in light of Asia’s new affidavit; (3) the Circuit Court would hear Adnan’s cell tower supplement; and (4) the Circuit Court would grant a new trial. All of those events ended up happening.

Now, I’m writing that I think that COSA will affirm the order granting a new trial. That’s based upon my conclusion that most of the case law favors the defense. Frankly, I’m least confident on the waiver issue. I’m actually working on a post about that very issue for next week. That said, I’m not sure that I see the significance of Arrington. The State cited Arrington once in its Brief of Appellant, on page 18, in support of the proposition that the UPPA didn’t contain limits on when or how many post-conviction petitions could be filed when it was enacted. That’s it. I suppose COSA could find something important in Arrington that the State didn’t, but they certainly didn’t cite to any conclusion from their case that strongly supported their position.

Posted by: Colin | Apr 1, 2017 3:23:45 AM

@Sam --

Arrington states explicitly that you can't add an IAC claim to a petition to reopen pursuant to § 8-201, which provides an avenue for actual innocence claims based on scientific evidence. That's not applicable here.

Posted by: pluscachange | Apr 1, 2017 2:31:15 PM

"The defense could, for instance, point to Gutierrez’s statement about not caring to look at Exhibit #31..."

Colin, you know they won't raise because it has nothing do with what happened at Adnan's second trial.

Posted by: dfgdfgdf | Apr 6, 2017 12:03:58 PM

@dfgdfgdf - but it does have everything to do with challenging the state's evidence that Gutierrez did loads of work on the cell tower issue... because all the evidence they referenced was from prior to Trial 1.

Posted by: Cupcake | Apr 6, 2017 3:08:44 PM

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