Friday, June 16, 2017
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.
I think the Court of Special Appeals will (1) agree with Judge Welch that Cristina Gutierrez acted unreasonably by failing to contact prospective alibi witness Asia McClain; and (2) reverse Judge Welch and conclude that Gutierrez's failure to contact Asia McClain was prejudicial, i.e., undermines our confidence in the jury's verdict. As a result, the Court of Special Appeals will grant Adnan a new trial on this claim and not disturb Judge Welch's conclusion that Adnan received ineffective assistance of counsel based upon Gutierrez's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert. This is the theory I proposed in Wednesday's episode of Undiclosed, but this post allows me to explain this theory is more detail. Here is my reasoning:
1. The bulk of the oral arguments dealt with the alibi issue. Indeed, the State never addressed the merits of the cell tower claim and only briefly touched upon one part of the waiver analysis (whether waiver is even a possibility given that the PCR petition was never "finally litigated"). The State never addressed whether Gutierrez should have used the AT&T disclaimer, whether her failure to do so was prejudicial, whether Curtis v. State is still good law, or whether Curtis v. State applies to Adnan's case. Moreover, this wasn't just the attorneys' choice. The judge seemed solely concerned with the alibi issue, implying that they might only want to address the alibi issue and not the cell tower issue.
2. A ruling on the alibi issue wouldn't create any new law. In In re Parris W., the Court of Appeals of Maryland found that defense counsel was ineffective in his handling of prospective alibi witnesses. As the defense and Judge Welch have noted, the Parris W. court cited several cases for the proposition that failure to contact an alibi witness is unreasonable. Moreover, Parris W. was a case where the court found prejudice based upon an alibi witness who merely might have contradicted the State's unclear timeline. It would therefore be pretty easy for the Court of Special Appeals to grant Adnan relief by just applying Parris W. Doing so wouldn't risk opening the floodgates to a bevy of new ineffective assistance/alibi claims or closing the door on possibly meritorious ineffective assistance/alibi claims.
3. I don't think that the Court of Special Appeals wants to touch the waiver issue. A ruling affirming or reversing Judge Welch's cell tower ruling means that the Court of Special Appeals has to address the waiver issue. Does it rule in favor of Adnan on the waiver issue? In that case, as the Court of Special Appeals noted during oral arguments, it could open the floodgates for petitioners bringing successor PCR petitions years and even decades after their convictions, alleging new claims of ineffective assistance of trial counsel. Alternatively, does it rule against Adnan on the waiver issue? In that case, it could close the door on possibly meritorious claims of ineffective assistance of counsel where defendants had bad trial and post conviction attorneys (or missed something while proceeding pro se on appeal).*
Now, both the State and defense would claim that Adnan's case could be limited to its facts, but that wouldn't stop future litigants from arguing that Syed v. State should be read expansively. That's the beauty of the Court of Special Appeals not touching Judge Welch's cell tower ruling: Again, it doesn't create new law. Whereas opinions of the Court of Special Appeals are precedential opinions by Circuit Court judges are not. If the Court of Special Appeals merely lets Judge Welch's cell tower ruling stand, subsequent litigants couldn't cite it for the waiver issue. They also couldn't cite it on the question of whether Gutierrez was ineffective in her handling of the AT&T disclaimer. While that issue is less of a hot potato issue than the waiver issue, it's still easy to imagine the Court of Special Appeals being gun-shy about addressing it in the wake of Kulbicki.
4. If I'm right about how the Court of Special Appeals will rule, I think it will issue its opinion sooner rather than later, i.e., closer to 3 months after oral arguments than 12 months. This is because the court would just need to address the alibi issue and not the cell tower issue. Also, in this event, I think it is less likely that the Court of Appeals would allow the State to appeal for two reasons: (1) as Susan noted on Undisclosed, a ruling on the alibi issue is less groundbreaking than a ruling on the cell tower issue, meaning that the Court of Appeals would feel less need to intervene; and (2) there would now be two ground for a new trial, IAC/alibi (COSA) and IAC/cell tower (Judge Welch), meaning that the Court of Appeals would need to think there was a decent chance of the State winning both of these issues on appeal to take that appeal.
5. Of course, this is just a prediction, and I could easily see things going another way. That said, at this point, I do feel pretty confident based on the briefs and oral arguments that the Court of Special Appeals won't rule against Adnan on the following issues (1) the prejudice prong on the cell tower claim; (2) the deficient performance prong of the alibi claim (the State couldn't cite a single case to the contrary); and (3) whether Judge Welch exceeded the scope of the remand order in considering the cell tower claim.
That leaves three issues that the State might win, and it has to win two of them to get a reversal of Judge Welch's order granting a new trial: (1) the prejudice prong of the alibi claim; and either (2)(a) the waiver claim; or (b) the deficient performance prong of the cell tower issue. In other words to win the State needs to win issue (1) and also win issue (2)(a) or (2)(b). Should the Court of Special Appeals reach the waiver issue, I think that issue is a complete toss-up. In terms of deficient performance on the cell tower issue, I think the defense had the stronger arguments in the briefs, but it's tough to get much of a read on the judges given that this was barely touched upon in oral arguments and not touched upon at all in the State's presentation. Finally, in terms of the prejudice prong of the alibi claim, it seemed to me like the judges were siding with the defense given Wearry v. Cain and the timeline argued by the State in closing (and opening), but I could still possibly see them buying the State's claim of "overwhelming" evidence if the cell tower argument falls by the wayside.
*Of course, there's the possibility of bringing a claim of ineffective assistance of post conviction counsel. But, to the extent that the Court of Special Appeals recognizes this option, what would be the point of reversing Judge Welch's order granting a new trial solely on waiver grounds? It would just mean that it would be hearing the cell tower claim in repackaged form in a few years.