Thursday, March 23, 2017
I've been getting a lot of questions about the current status of the Adnan Syed case, so I thought that I would do a post that gets into the nitty gritty of it.
1. Opinion/Order Granting a New Trial
(1) (a) trial counsel engaged in unreasonable performance in failing to contact Asia McClain; but (b) this was not prejudicial because the State presented a weak theory regarding the time of Hae's death based upon inconsistent facts and because Asia's testimony would not have rebutted the crux of the State's case, which was the intersection between Jay's testimony about Hae's burial and the Leakin Park pings;
(3) (a) trial counsel engaged in unreasonable performance in failing to use the AT&T disclaimer to cross-examine the State's cell tower expert; and (b) this was prejudicial because the crux of the State's case was the intersection between Jay's testimony about Hae's burial and the Leakin Park pings.
Accordingly, Judge Welch did not grant Adnan a new trial on his Brady claim. To grant a new trial based on ineffective assistance of counsel, a judge must find both (1) unreasonable performance; and (2) prejudice. Therefore, Judge Welch (1) did not grant Adnan a new trial on his ineffective assistance/Asia claim; but (2) granted Adnan a new trial on his ineffective assistance/cell tower claim. Adnan only needed to win on one of these three issues to get a new trial, so his "win" on the ineffective assistance/cell tower claim means that he gets a new trial unless Judge Welch's ruling is reversed.
2. Appellate Procedure
Decisions of the Baltimore City Circuit Court are potentially reviewed by the Court of Special Appeals of Maryland, the intermediate appellate court in the state of Maryland. Before the Court of Special Appeals of Maryland will hear an appeal, though, it must grant leave to appeal. On January 18, 2017, the Court of Special Appeals granted (1) the State leave to appeal the ineffective assistance/cell tower claim; and (2) the defense leave to cross-appeal the ineffective assistance/Asia claim.* The State's initial appellate brief was filed on February 27, 2017. The defense's appellate brief is due on March 29, 2017. Finally, the State's responsive brief is due by April 28, 2017.
Oral arguments in the case are scheduled for June 2017, but those arguments could potentially be pushed back to July or later. The case will be heard by a three judge panel. During oral arguments, both sides will make legal arguments; no new facts/evidence can be presented. The State has asked for the Court of Special Appeals to remand the case back down to the Baltimore City Circuit Court so that that court can receive evidence from two sisters who might try to impeach Asia's testimony. That same three judge panel will decide whether to remand the case to the Baltimore City Circuit Court. Typically, a party seeking a remand so that they can present additional evidence would have to file a motion to reopen under Section 7-104 of the Maryland Code of Criminal Procedure. The seeming problem for the State here is that the prosecution cannot file a motion to reopen.
At some point after oral arguments (probably months later), the three judge panel will issue its opinion. Majority rules. Whichever party loses can file a petition for writ of certiorari with the Court of Appeals of Maryland, which is Maryland's highest court. That petition is due within 15 days of the mandate of the Court of Special Appeals, and it usually takes the Court of Appeals 6-8 weeks to decide whether to "grant cert," or hear the appeal. If the Court of Appeals denials cert, the ruling of the Court of Special Appeals becomes final. If the Court of Appeals grants cert, it will establish a briefing and oral arguments schedule, just like the Court of Special Appeals has currently done.
All seven judges of the Court of Appeals would hear oral arguments and render a decision, unless a judge has to recuse himself, which would mean that "a judge from another court, or a retired appellate judge, may be specially assigned to sit in the place of the recused judge." Again, majority rules.
Finally, the party who loses at this stage could file another petition for writ of certiorari, this time to the United States Supreme Court. While it would be unlikely that the Supreme Court "grants cert," it did so in Kulbicki, another case involving a case of alleged ineffective assistance of counsel in connection with expert evidence. All nine** Justices would hear the case. Majority rules.
3. Appellate Substance
There are three issues that the Court of Special Appeals is addressing. If Adnan wins any one of them, he gets relief. Each of these issues, however, has sub-issues:
(1) Was trial counsel ineffective in failing to cross-examine the State's cell tower expert with the AT&T disclaimer, which requires the court to find: (a) Judge Welch did not abuse his discretion in hearing this issue; (b) Adnan did not waive this issue; (c) trial counsel was unreasonable in failing to cross-examine the State's cell tower expert with the AT&T disclaimer; and (d) this failure was prejudicial;
(2) Was trial counsel ineffective in failing to contact Asia McClain, which requires the court to find: (a) trial counsel was unreasonable in failing to contact Asia McClain; and (b) this failure was prejudicial; and
(3) Was trial counsel ineffective in failing to ask about a plea deal, which requires the court to find: (a) trial counsel was unreasonable in failing to ask about a plea deal; and (b) this failure was prejudicial.
Judge Welch found in Adnan's favor under (1)(a), (1)(b), (1)(c), (1)(d), and (2)(a), and he found in the State's favor under (2)(b), (3)(a), and (3)(b).*** The Court of Special Appeals will apply a different standard of review with regard to Judge Welch's findings of fact and findings of law. It will only alter factual findings if it concludes that they were clearly erroneous, i.e., logically wrong as opposed to probably wrong. Therefore, it is exceedingly unlikely that the Court of Special Appeals will alter factual findings, such as the findings that trial counsel/her team didn't contact Asia McClain and that the AT&T disclaimer applied to Exhibit #31 (the State's cell tower exhibit).
On the other hand, the Court of Special Appeals will apply a de novo (clean slate) standard of review to Judge's Welch's legal conclusions. Under this standard, the court looks at these legal conclusions with a fresh set of eyes and owes no deference to Judge Welch's conclusions. So, for instance, Judge Welch's findings regarding prejudice under (1)(d) and (2)(b) are owed no deference.
As noted, Adnan only needs to win on one of the above three issues to get relief, but it's also true that the State only needs to win on one of the sub-issues to "win" that particular issue. For instance, the State could agree with Judge Welch under (1)(a), (1)(b), and (1)(c), but find under (1)(d) that the failure to use the AT&T disclaimer was not prejudicial, and the State would "win" the cell tower issue. That said, there are sometimes multiple ways that Adnan could win on a particular sub-issue.
For instance, under (1)(b), the Court of Special Appeals could find that
-Adnan did not waive the ineffective/assistance cell tower claim pursuant to Curtis v. State, 284 Md. 132 (1978); or
-Judge Welch should have "freely allowed" Adnan to add the ineffective/assistance cell tower claim; or
-Adnan waived the ineffective/assistance cell tower claim, but excuse the waiver.
If the Court of Special Appeals reached any of these three conclusions, Adnan would "win" sub-issue (1)(b). If Adnan "wins" on issue (1) or issue (2), he gets a new trial. If Adnan wins on issue (3), the plea bargain issue, it's unclear what relief he would get. As I've noted, though, I don't think issue (3) is a winning issue.
In terms of issues (1) and (2), I think that the biggest question is the relationship between sub-issues (1)(d) and (2)(b). In its appellate brief, the State claimed that the Leakin Park pings were a lot less important than Judge Welch made them out to be. In its brief, the defense will likely agree that those pings were not as important as Judge Welch made them out to be while also trying to argue that they were still really important. This will allow the defense to claim that both the failure to use the AT&T disclaimer and the failure to contact Asia were prejudicial.
The State, of course, has claimed that there was "overwhelming" evidence of Adnan's guilt, meaning that any error with regard to the AT&T disclaimer or Asia can't be prejudicial. The defense, of course, has already argued that the Court of Special Appeals should look at the cumulative prejudice caused by both of these errors rather than looking at the prejudica caused by each error in isolation.
On October 24, 2016, the defense filed a motion for release pending the State's appeal. On December 28, 2016, Judge Welch denied this motion, finding that (1) he was precluded from considering the motion based on the remand order in the case; and (2) he would have denied bail even if he was allowed to consider the motion. While denying this motion, however, Judge Welch noted that he was nullifying Adnan's prior bail hearing, just as he had done with his 2000 trial:
Thereafter, on January 27, 2017, the defense filed for leave to appeal this decision. The next step here is the Court of Special Appeals either granting or denying leave to appeal.
**Assuming there are nine.
***The findings with regard to (3)(a) and (3)(b) came back in Judge Welch's initial opinion in 2014.