Thursday, June 8, 2017
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?
Maryland Court Rule 8-131(a) provides that
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 I've noted before, even if COSA finds that Adnan waived the cell tower issue, it could excuse that waiver and consider the merits of the issue. Indeed, about a month and a half ago, COSA excused waiver of an issue because "both parties ha[d] fully briefed the issue on appeal." Significantly, "the Court of Special Appeals and th[e Court of Appeals] each have 'independent discretion' to excuse the failure of a party to preserve an issue for appellate review."
The significance of this independent discretion is that the Court of Appeals would have no authority to reverse COSA's decision to excuse waiver. If COSA rules in Adnan's favor, the issue is resolved. So, the question here is whether the Rule 8-131(a) issue is raised by either side or the court during oral arguments. Obviously, the State would be wary of suggesting the idea, and the defense might not want to argue anything other than lack of waiver. But will one of the judges ask the attorneys why COSA should or shouldn't excuse waiver in this case? We'll see.
In answering the question of whether Judge Welch abused his discretion by interpreting the remand order to allow consideration of the cell tower issue, COSA is of course interpreting its own remand order. COSA's conclusion on this issue will be subject to de novo/clean slate review, but it's still tough to see the Court of Appeals reversing COSA on this issue. Of course, it's important to keep in mind that COSA itself is deciding whether Judge Welch abused his discretion, which means that the court could still find in the defense's favor even if it finds that Judge Welch reasonably, but incorrectly, interpreted the remand order. In other words, COSA could find that it intended to limit the remand to the Asia/alibi issue but acknowledge that its remand order was ambiguous enough to allow a reasonable person to conclude that it allowed for consideration of additional issues.
It can often be tough to deduce from judges' questions where they stand on particular issues. But I have a feeling that we'll get a pretty good sense from the judges' questions (or lack thereof) on this issue where COSA stands.
As I've noted, the State spent a good chunk of its brief arguing against Judge's Welch's factual findings, especially on the cell tower issue. This is a tough row to hoe because COSA will only reverse factual findings if they were clearly erroneous, i.e., lacking in evidentiary support. This prompts two questions: (1) How much will the State argue facts during oral arguments; and (2) How much will the judges question the defense about Judge Welch's factual findings?
If the answer to either question is "not much," I wouldn't expect COSA to disturb any of Judge Welch's factual findings. If the answer to both questions is "a good deal," then the specific facts being addressed becomes very important and could suggest a more thorough review of the record.
I've noted before that the case law seems to support the defense pretty strongly in this case on the alibi and cell tower issues (but not the plea bargain issue). The question then becomes whether the State will cite any new precedent during oral arguments and/or whether the judges question the defense about some case that hasn't been cited by the parties. If either of these happens, we'll have to see the case(s) cited to get a sense of importance.
Of course, the State has placed most of its eggs in the Maryland. v. Kulbicki basket, and maybe my biggest question is how the judges handle this case at oral arguments. Do they primarily push back on the State and imply that the two cases are very different? Do they rigorously question the defense about whether this case is in fact different than Kulbicki? Or is the questioning pretty evenhanded? This line of questioning, more than any other, might help us read the tea leaves.
This really isn't important to today's oral arguments, but one final question is whether the Court of Appeals of Maryland actually will allow the losing party to appeal in this case. I think so. First, the waiver issue and the continuing viability of Curtis v. State is an issue of Constitutional significance and something that could have an impact on most future PCR cases in Maryland. Second, this would be the first chance for the Court of Appeals to address the standard for ineffective assistance of counsel in connection with expert evidence since it was overruled by the Supreme Court in Kulbicki. Third, after the Court of Appeals was reversed by the Fourth Circuit in Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), it seemed to create a pretty broad basis for IAC relief in connection with alibi witnesses in In re Parris W., 770 A.2d 202 (Md. 2001). That said, Parris W. had pretty unique facts (subpoenaing alibi witnesses for the wrong day), and it's the only real Maryland case on the issue in the 25 years since Griffin was decided.
Therefore, I think the Court of Appeals will allow for an appeal in this case, but, if it doesn't, then COSA's opinion will be the final word on these issues.