EvidenceProf Blog

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

Tuesday, April 4, 2017

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.


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. 



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Hi Colin. I'm pretty sure you've previously mentioned the cases which followed-up Curtis's issue in COA (Unger and Waine)? But it seems to me that COA must have "found it either necessary or desirable" as they gave a blanket excuse of waiver on that particular issue for all time and all petitioners. Wasn't that an application of rule 8-131, even if they didn't cite the reference?

Also this bit from the Waine opinion stood out,
"The State picks its way carefully around the analysis in both Stevenson and Unger to paint a picture of clear error, but neglects to include the full scope...."
Very familiar tactics. Almost like the State of MD makes a habit of pretending crucial bits of law (or case-law) don't exist when they try to defend the indefensible. Is that normal??? Court of Appeals didn't seem very impressed.

Posted by: Anonymouse | Apr 4, 2017 2:41:43 PM

Just to absolutely clarify, the waiver here, at the core, is some sort of stipulation on Gutierrez' part that the cell phone evidence was admissable in some form without challenge. I seem to remember hearing Guttierrez commenting something about not caring about the cell records in some sort of sidebar weith a judge (first trial? mistrial colloquy?). Therefore Syed, in the person of his attorney, had waived the sort of challenge to the admissability of the evidence that the unnoticed disclaimer might have mandated before the expert testimony was even given. I take it that the IAC claim that he won the retrial on was due to later lack of cross examination of the expert witness that would bring the discaimer to his, the court's, and the jury's attention. Therefore, there seems to be an argument that she might not have had the right (?) to question the disclaimer in this way since she had stipulated its admissibility, thus abandoning the right to question it on appeal in the manner that led to the. However, if it was found by COSA that the right to question the disclaimer had been waived; Syed might reasonably institute another IAC claim, yet to be litigated, arguing incompetence for agreeing to whatever was stipulated to when the cell phone records were admitted into evidence. Therefore the COSA, ignoring numerous other possibilities, might go ahead and decide both issues (hopefully in Syed's favor) in the interests of avoiding the loss of time and expense from deciding the issues piecemeal. Is this what we are talking about with "waiver", or am I totally off the mark? [If this is too much of a side issue, or I am way off the mark, or if you can explain things in 1/10 the verbiage, don't bother posting this and wasting everyone's time. My sense of self or ego is not involved. Also my apologies if I misuse terminology--stipulation, for example, derives from NYC landlord tenant disputes with a guy that could have served as Donald Trump's role model--and may be absurd here.]

Posted by: Hal | Apr 4, 2017 3:08:57 PM

Hal, I think it's not about Gutierrez, so much as about Adnan (and his previous appeal lawyers) having not brought the exact issue up at earlier stages of appeal.
I found this blog helpful (3rd para) http://www.marylandpostconviction.com/?p=29

Posted by: Anonymouse | Apr 4, 2017 4:36:28 PM

The legal argument may be fascinating and intriguing but surely the question must be whether the conviction of Adnan has been the proper outcome. If the Court of Appeal thinks otherwise it will find a way to to grant the appeal. Commonsense really. Sitting in Australia I'm sure that our legal system has it's problems but the Adnan case and the Joey Watkins case give me cause to think that the American legal system is failing in its obligation to deliver justice.

Posted by: John Hogg | Apr 5, 2017 2:43:12 AM

Thanks Colin. I understand at least the words people are using a little better. But still, it does remind me of the old logical conundrum that begins "If I think that he thinks that I think that he...."

Posted by: Hal | Apr 5, 2017 9:33:14 AM

As a mother of a 17 year old, this just gives me chills. Even now, I read your blog, I know the story but the legal stuff still goes over my head. But a 17 year old, with an incapacitated lawyer, was supposed to know what he was waiving? Sad and angry.

Posted by: JoAnn Stringer | Apr 5, 2017 1:21:06 PM

John Hogg, I read your comments with interest. You state that “the question must be whether the conviction of Adnan has been the proper outcome.” Then you later state that it “give[s] me cause to think that the American legal system is failing in its obligation to deliver justice.” It sounds like you believe that the goal of the court is to determine whether the conviction of Adnan was “just” as a “proper outcome.” Sadly, no, the role of the Court of Appeals is to determine whether the conviction of Adnan was consistent with law. While the general hope is that what is legal is also “just”, it is also quite clear that any conviction that is without legal error stands regardless of whether the person is actually innocent. See Justice Scalia’s comments on whether actual innocence is a bar to executing someone (“mere factual innocence is no reason not to carry out a death sentence properly reached.”, Herrera v Collins). Judge Welch found that Adnan’s conviction was based on legal error (ineffective assistance of counsel in violation of the 6th Amendment). The Court of Special Appeals could find there was no legal error (even if the judges might have personally found Adnan not guilty if they had been jurors at the trial). Scalia would say there are other avenues under the law (commutations or pardons, for example) for actual innocence, and it is not their role to provide relief for “actual innocence” where there is no error of law in the conviction. [Nevermind whether commutations or pardons are actually performed in such cases by the relevant executive (president or governor), who generally has complete discretion whether to give a pardon to someone actually guilty, or deny such pardon to someone actually innocent.]

Posted by: FormerAgent | Apr 7, 2017 4:59:57 PM

@FormerAgent... I'd say John Hogg's statement would be a pretty good response to the kind of legal craziness you have just summarised. It may be legally 'correct', but it's sure as hell evidence that the American legal system is failing people.

Posted by: Cupcake | Apr 8, 2017 4:38:11 AM

@cupcake… I certainly agree that there are too many cases where the American legal system is not providing just outcomes. As a former state and federal law enforcement officer, I’ve seen it work well when officers and prosecuting attorneys use their considerable discretion to actually pursue justice (I’d say that was true of most of the people I worked with in my career). However, I’ve also seen it fail when officers and prosecuting attorneys don’t see justice as the desired outcome, but rather “winning” their case, improving their arrest statistics, etc. I’ve also seen it fail when, through either laziness, incompetence or even malice, officers and prosecuting attorneys seek a conviction with whomever they can get. Without any meaningful consequences for this kind of behavior (i.e. Urick’s prosecutorial misconduct in dissuading Asia McClain from testifying, and then never having any consequence for doing so), there isn’t much incentive for officers / prosecuting attorneys to avoid acting in these latter ways if they don’t have the internal moral compass to seek truth and justice. All that said, the law does provide relief when you can actually show legal error, as in Adnan’s case. The real tragedy is that there are a lot of other Adnans out there who don’t have the visibility and resources to find such legal error.

Posted by: FormerAgent | Apr 9, 2017 1:27:09 PM

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