EvidenceProf Blog

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

Friday, June 23, 2017

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.

Let's start with the opinion of the Court of Special Appeals of Maryland in Lawson v. State, 865 A.2d 617 (Md.App. 2005). Joseph Lawson was charged with sexual crimes against his cousin. During closing argument, the prosecutor made certain statements that were arguably objectionable, such as

What does a monster look like? Looks like different things to different people. What does a sexual molester look like? He looks like someone you know. He looks like your uncle, your brother, your sister, your cousin. It's possible. But there is no certain way that someone who molests children looks. But they do ingratiate themselves. They make themselves indispensable. They are friendly, always there to watch.

Defense counsel objected to some of these statements, but not others, including the above statement. In denying Lawson relief, the Court of Special Appeals concluded that

after these remarks were made, appellant did not object to them, ask that they be stricken, request a mistrial or demand some other form of remedial action. Generally, a timely objection must be made to preserve an issue for appeal, otherwise it is waived....The only exception to that rule is when the closing argument constitutes plain error.

Finding no plain error, the Court of Special Appeals affirmed Lawson's convictions.

The Court of Special Appeals disagreed and granted Lawson a new trial, concluding as follows:

The Court of Special Appeals determined that petitioner failed to preserve some of the issues for review because he only objected to two of the statements and did not move for a mistrial as to those issues at the end of closing arguments....The intermediate court then found that when an issue is not preserved, it must find that there was plain error in order to reverse the conviction. The court noted that plain error is invoked "only in instances which are compelling, extraordinary, exceptional, or fundamental to a fair trial."...In the intermediate court's opinion, each statement when considered in isolation, was not so harmful to the petitioner as to amount to plain error.

That court erred in limiting a plain error issue to each inappropriate statement separately. Once error is determined during a “plain error” review, prejudice can only be determined by a consideration of the error in the context of the entire case including the cumulative effect of all errors on the ability of a jury to render a fair and impartial verdict in the context of the case.

In a concurring opinion, Judge Harrell agreed with the majority's result, but disagreed with its reasoning, noting:

I write separately because I am leery of the Majority opinion's approach to factoring into its closing argument "cumulative effect" analysis (Maj. op. at 589–606, 886 A.2d at 887–97) the unpreserved (and therefore waived) arguments as to the improprieties in the prosecutor's rebuttal arguments.

Now, let's start with ways that Lawson can be distinguished from Adnan's case. First, the contexts are different: In Lawson, the defense waived/didn't preserve an issue by failing to object at trial while PCR counsel in Adnan's case (arguably) waived the cell tower claim by failing to raise it in the initial PCR petition. Second, defense counsel did object to some of the prosecution's closing argument in Lawson while there was no claim of ineffective assistance of trial counsel in connection with cell phone evidence in the initial PCR petition (although there were claims of ineffective assistance of trial counsel generally and ineffective assistance of appellate counsel in connection with cell phone evidence specifically).

That said, the parallel here seems pretty clear. In Lawson, (1) the prosecutor made several comments during closing argument; (2) the Court of Appeals of Maryland found the prosecutor's comments that were followed by defense objections were not enough, in and of themselves, to prove prejudice; and (3) the Court of Appeals found that any claim regarding the prosecutor's other comments was waived/unpreserved but nonetheless factored those statements into a cumulative prejudice analysis that led it to grant a new trial.

In Adnan's case, even if the Court of Special Appeals/Court of Appeals found waiver, the analogous situation would be that (1) trial counsel was deficient with regard to both prospective alibi witness Asia McClain and the cell tower records; (2) the Court of Special Appeals/Court of Appeals finds that failure to contact Asia McClain is not enough, in and of itself, to prove prejudice; and (3) the Court of Special Appeals/Court of Appeals finds that any claim regarding the cell tower evidence was waived but nonetheless factors trial counsel's failure with regard to the cell tower evidence into a cumulative prejudice analysis that leads it to grant a new trial.



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This is a followup to the answer you gave me on the previous post about waiver. Thank you very much for that--it was very helpful.

So it seems that there are two aspects to the waiver issue. One is that the fax cover sheet was not brought up during the initial pcr hearing by adnans appellate counsel. The second is whether adnan himself intelligently and knowingly waived the issue of the fax cover sheet.

What if the court finds that the issue was waived based on the former but was not waived on the latter?

Posted by: Teeter | Jun 24, 2017 6:42:40 AM

Teeter: I think there’s only one issue: Did Adnan knowingly and intelligently waive the cell tower issue? If so, Adnan loses the cell tower issue unless COSA excuses the waiver. The State is claiming that the law of the case doctrine also means that Adnan “waived” the cell tower issue when he didn’t include it before Judge Welch’s initial ruling. But I don’t think that’s really a waiver argument, and I also don’t think the State has any chance of winning that argument.

Posted by: Colin Miller | Jun 24, 2017 11:22:44 AM

Colin, in relistening to the PCR Hearing episode 5 Closing Thoughts, you indicated that Justin's argument was that only after cross referencing documents was he able to determine that the State had withheld documents and upon discovering this, that is when the 10 year period begins for waiver. Yet in your posts after the oral arguments in front of CoSA, you argue something different, and that is that it can't be waived until it is finally litigated. To me those are two different arguments. Has the waiver argument changed, or am I misunderstanding something?

Posted by: Sean | Jun 28, 2017 7:25:01 AM

Sean: The defense argued that point in the alternative. The defense’s claim was that either (1) the importance of the AT&T disclaimer should have been clear to Gutierrez, making her failure to use it ineffective assistance of counsel; or (2) the State was misleading in its disclosure of the disclaimer, which constituted a Brady violation that only could have been discovered recently. If Judge Welch went with option #2, there wouldn’t have been a waiver issue for the reason you mentioned. Judge Welch, however, went with option #1, which potentially creates waiver issues that might be resolved by the “finally litigated” requirement.

Posted by: Colin Miller | Jun 28, 2017 9:10:18 AM

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