EvidenceProf Blog

Maryland Court Finds Evidence & Testimony Related to Cell Tower Drive Test Unreliable and Inadmissible

Two days ago, the Court of Special Appeals of Maryland issued an interesting opinion in Phillips v. State. In Phillips, Bashunn Phillips was charged with the first-degree murder of Shar-Ron Mason and related crimes. 

The State notified Phillips that it intended to offer at trial a radio frequency (“RF”) signal propagation map purporting to establish the approximate location of Phillips’s phone on the morning of December 10, 2013 [the day of the murder]. The propagation map represented data obtained through a drive test conducted by Special Agent Richard Fennern, a member of the Federal Bureau of Investigation’s Cellular Analysis and Survey Team, on October 23, 2014.

In response, Phillips filed a motion in limine, "seeking to exclude the RF signal propagation map and related testimony."

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Oral Arguments in the Adnan Syed Case & Another Reason the 3:15 P.M. Call Doesn't Work

Throughout the appeal in the Adnan Syed case, the State has claimed that the prosecution's argument at trial that Adnan Syed killed Hae Min Lee by 2:36 P.M. was just its "best" theory of the case and that it just as easily could have argued a different theory of the case. The only alternate theory of the case that it has advanced, however, is that the 3:15 P.M. call on Adnan's call log was the "come and get me" call as opposed to the 2:36 P.M. call. Judge Welch, of course, refuted this argument in footnote 9 of his opinion granting a new trial based upon the number of events in Jay's narrative between the "come and get me" call and the 3:21 P.M. call he made to Jenn, ostensibly to look for Patrick. Until re-listening to the oral arguments in the case today, however, I hadn't noticed an even bigger problem for the State.

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How COSA Could Find That Adnan Syed Waived the Cell Tower Claim & Still Use it to Grant Him a New Trial

While I think that the Court of Special Appeals of Maryland will affirm Judge Welch's order granting Adnan Syed a new trial, I think the State's best chance at a reversal is the possibility that the Court of Special Appeals will

-agree with Judge Welch that the failure to contact prospective alibi witness Asia McClain was not prejudicial, in and of itself; and

-disagree with Judge Welch and conclude that Adnan waived his ineffective assistance/cell tower claim.

But what if the Court of Special Appeals and/or the Court of Appeals of Maryland reached both of these conclusions and still granted Adnan a new trial? Based upon the opinion of the Court of Appeals of Maryland in Lawson v. State, 886 A.2d 876 (Md. 2005), this seems like a real possibility.

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What the Court of Special Appeals Can and Can't Do With Waiver in the Adnan Syed Case

Last Friday, I predicted that the Court of Special Appeals will grant Adnan a new trial on the alibi issue and not address the portion of Judge Welch's order dealing with the cell tower issue, and specifically the waiver issue. Part of the reason for this is that the Court of Special Appeals is quite limited in what it can do on the waiver issue. Judge Welch, of course, ruled that (1) the Court of Appeals of Maryland found in Curtis v. State, 284 Md. 132 (1978), that the right to the effective assistance of counsel is a "fundamental right;" (2) as such, a claim of ineffective assistance of counsel must be knowingly and intelligently waived; and (3) Adnan did not knowingly an intelligently waive his claim that he received the ineffective assistance of counsel based upon Cristina Gutierrez's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert. 

A big part of the State's claim on appeal is that Curtis v. State is outmoded because, inter alia, it was issued when a petitioner could file an unlimited number of PCR petitions. For instance, the State argues:

The problem for the State, however, is that the Court of Special Appeals has no authority to overrule Curtis on the ground that it's outmoded.

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Assessing the State's Claim of "Overwhelming" Evidence in the Adnan Syed Case in Light of Wearry v. Cain

Maybe the most important exchange from the recent oral arguments in the Adnan Syed case was this one:

State 17

With her question, Judge Graeff clearly appears to be referencing the Supreme Court's recent opinion in Wearry v. Cain, which (1) was issued after the reopened PCR proceedings in Adnan's case; and (2) was cited by the defense in its Brief of Appellee/Cross-Appellant to the Court of Special Appeals. Wearry was the case in which the Supreme Court found that strong evidence of a defendant's involvement in post-murder events should not prevent a court from finding prejudice based upon evidence that undermines the State's theory of the actual murder itself.

This conclusion is, of course, hugely relevant to Adnan's case given that Judge Welch concluded that (1) Cristina Gutierrez unreasonably failed to contact prospective alibi witness Asia McClain; but that (2) the "crux" of the State's case was the intersection between Jay's testimony about the burial and the Leakin Park pings.

Those pings are part of what the State has claimed is "overwhelming" evidence of Adnan's guilt, which it asserts should prevent the Court of Special Appeals from finding that the failure to contact Asia McClain was prejudicial, or undermines our confidence in the jury's verdict. The State laid out this evidence in its Reply Brief and Appendix of Cross-Appellee.

In a prior post, I assessed the overall strength of this evidence in a general sense. In this post, I will assess this evidence under the Wearry v. Cain standard. In other words, I will assess whether the evidence actually supports the State's theory as to how Adnan murdered Hae or merely shows that Adnan might have been involved in post-murder events.

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My Prediction for How the Court of Special Appeals Rules in the Adnan Syed Case

Last Thursday, the Court of Special Appeals of Maryland heard oral arguments in the Adnan Syed case. Steve Klepper, an expert in Maryland appellate law, has predicted that the Court of Special Appeals will issue its opinion in the case 3-12 months from now (possibly earlier, possibly later). Here's how I think the court will rule and why.

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Oral Arguments in the Adnan Syed Case and the Importance of Opening Statements/Closing Arguments

Last night, we debuted our Undisclosed episode about the oral arguments in the Adnan Syed case. For me, possibly the most interesting part of the oral arguments was the back-and-forth regarding how much weight the judges should give to closing arguments from trial in assessing the prejudice caused by Cristina Gutierrez's failure to contact prospective alibi witness Asia McClain. In other words, given that Asia offered credible testimony at the PCR hearing about seeing Adnan at the Woodlawn Public Library until about 2:40 P.M., how important was it that the State claimed in closing that Adnan had killed Hae before making the "come and get me" call from Best Buy at 2:36 P.M.?

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Does the Pennsylvania Case Cited by the State on Waiver Actually Help Adnan Syed?

On Wednesday, Undisclosed will have a special episode on the oral arguments in the Court of Special Appeals of Maryland regarding the Adnan Syed case. When we recorded the episode, I hadn't yet looked into a case cited by the State in its Reply Brief and used by the State during oral arguments. I will address that case here.

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A Preview of Today's Oral Arguments in the Adnan Syed Case

Today at 2:00 P.M., there will be oral arguments before the Court of Special Appeals of Maryland (COSA) in the Adnan Syed case. Steve Klepper has noted that a decision might come about 3-12 months after these oral arguments. Again, COSA is addressing three issues:

(1) Did Adnan Syed receive the ineffective assistance of counsel (unreasonable performance + prejudice) based upon his trial counsel's failure to contact prospective alibi witness Asia McClain;

(2) Did Adnan Syed receive the ineffective assistance of counsel based upon his trial counsel's failure to ask about a plea deal; and 

(3) Did Adnan Syed receive the ineffective assistance of counsel based upon his trial counsel's failure to use an AT&T disclaimer to cross-examine the State's cell tower expert, an issue that COSA will need to reach only if it finds that

(a) Judge Welch did not abuse his discretion by interpreting COSA's remand order as allowing this issue to be raised; and

(b) this issue was not waived (or if it excuses such waiver).

Given that the losing party will almost certainly appeal to the Court of Appeals of Maryland (Maryland's supreme court), what are the key points to consider before oral arguments and COSA's ultimate opinion?

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Supreme Court of Georgia Uses "Course of Conduct" Exception to Turn Aside Spider-Man Objection

Today marks the release of the "Wonder Woman" movie, but it was a Spider-Man objection that was the subject of a recent appeal in Georgia.

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