Would the Court of Special Appeals Excuse Any Possible Waiver of the Cell Tower Issue in the Adnan Syed Appeal?

I think that the most unpredictable issue on appeal in the Adnan Syed case is the issue of waiver. Quite honestly, I have no idea whether the Court of Special Appeals will find that Adnan did or did not waive his cell tower claim. The court could find that:

(1) Adnan was "freely allowed" to add the claim pursuant to Rule 4-402(c);

(2) Adnan did not intelligently and knowingly waive the claim pursuant to the test established in Curtis v. State;

(3) Adnan intelligently and knowingly waived the claim pursuant to the test established in Curtis v. State;

(4) Adnan intelligently and knowingly waived the claim, but such waiver is excusable pursuant to Rule 8-131(a); or

(5) the intelligent and knowing waiver test doesn't apply to Adnan's case based upon one of the arguments made by the State in its Brief of Appellant (e.g., "Curtis was decided when an unlimited number of post-conviction petitions could be filed....").

In this post, though, I want to look more closely at the possibility of the Court of Special Appeals finding waiver, but excusing that waiver.

Excuse

As noted, option #4 above is for the Court of Special Appeals to find that Adnand waive the cell tower claim but use its discretion to excuse such waiver, which would allow the court to hear the claim. I discussed this issue in a prior post, with the relevant Rule being Rule 8-131(a), which states:

The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

As far as I can tell, the Court of Appeals last discussed Rule 8-131(a) in the context of appellate waiver in State v. Adams, 958 A.2d 295, 314 (Md. 2008), concluding that

Were we writing on a cleaner slate, revisiting the evolution and basis of this discretion might be a principled undertaking; however, like the summer rule of golf ("play the ball as you find it"), we shall save that endeavor for another day, if at all.

In other words, the Court skirted around the issue of when a Maryland court may excuse waiver of an issue, leaving that issue for another day. Now, that day quite possibly could be the day that Adnan's appeal is heard.

That said, in my prior post, I cited to the prior opinion of the Court of Appeals of Maryland in Jones v. State, 843 A.2d 778 (Md. 2004), which held that

when presented with a plausible exercise of this discretion, appellate courts should make two determinations concerning the promotion or subversion of 8–131(a)'s twin goals.

First, the appellate court should consider whether the exercise of its discretion will work unfair prejudice to either of the parties....

Second, the appellate court should consider whether the exercise of its discretion will promote the orderly administration of justice. This simply means that the Rule seeks to prevent the trial of cases in a piecemeal fashion, thereby saving time and expense and accelerating the termination of litigation.

If the Court of Special Appeals applies this two pronged analysis, I think the second factor favors the defense while the first factor is mixed.

Under the second factor, I imagine that the Court of Special Appeals is cognizant of what happens if it  dismisses the cell tower claim on waiver grounds. Based upon the factual findings of Judge Welch, Adnan would have a very good claim of ineffective assistance of postconviction counsel (e.g., "Petitioner's counsel for the post-conviction proceedings did not advise Petitioner about the issue until shortly before August 24, 2015...."). This would create a scenario where (1) Adnan is eventually denied relief on the Asia and plea bargaining issues; and then (2) a subsequent claim of ineffective assistance of postconviction counsel is brought. This, of course, would be piecemeal litigation, as opposed to the Court of Special Appeals excusing waiver and hearing all three issues together.

Conversely, under the first factor, the State would have a good argument that the court's consideration of the cell tower issue would cause the State unfair prejudice. After all, the cell tower issue largely turns on the interpretation of the AT&T disclaimer, and the State has been tasked with disproving the applicability of this disclaimer more than a decade and a half after trial. The court could find that this is an unfair burden,

On the other hand, consider the defense's perspective. They just spent a good deal of time, money, and resources presenting expert testimony and arguments on the cell tower issue at the reopened PCR proceeding. Therefore, it would be hugely prejudicial for the Court of Special Appeals to say that all of this effort was for naught, despite Judge Welch concluding that this was a clear error by trial counsel that precluded the defense from undermining "the crux" of the State's case.

So, if the Court of Special Appeals found that Adnan waived the cell tower issue, would it excuse that waiver? I don't know. 

-CM