EvidenceProf Blog

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

Thursday, March 29, 2018

My First Take on COSA's Opinion Affirming a New Trial for Adnan Syed

Today, the Court of Special Appeals of Maryland issued an opinion affirming Judge Welch's order granting Adnan Syed a new trial. It was a split decision, with two judges -- Chief Judge Woodward and Judge Wright -- affirming Judge Welch's order and one judge -- Judge Graeff -- dissenting. Judges Woodward and Wright, however, reversed Judge Welch's reasoning, finding that (1) the cell tower issue was waived; and (2) Cristina Gutierrez's failure to contact alibi witness Asia McClain was prejudicial, meaning that contacting her would have created the reasonable probability of a different outcome at trial.

The opinion by Judges Woodward and Wright isn't a declaration that Adnan is actually innocent, but it does a pretty good job of showing the weakness of the State's case against him at trial.

Judges Woodward and Wright didn't reject Judge Welch's conclusion that evidence connected to Hae's burial was the crux of the prosecution's case, but did find that

the State had to establish that Syed “caused the death” of Hae, and the State’s theory of when, where, and how Syed caused Hae’s death was critical to proving this element of the crime.

And, on that front, the judges found the State's case lacking:

With little forensic evidence, the case was largely dependent on witness testimony of events before and after Hae’s death. Testimony of these witnesses often conflicted with the State’s corroborating evidence, i.e., the cell phone records and the cell tower location testimony by its expert, Waranowitz. The State’s key witness, Wilds, also was problematic; something the State readily admitted during its opening statement. Wilds had given three different statements to police about the events surrounding Hae’s death.

The State’s case was weakest when it came to the time it theorized that Syed killed Hae. As the post-conviction court highlighted in its opinion, Wilds’s own testimony conflicted with the State’s timeline of the murder. Moreover, there was no video surveillance outside the Best Buy parking lot placing Hae and Syed together at the Best Buy parking lot during the afternoon of the murder; no eyewitness testimony placing Syed and Hae together leaving school or at the Best Buy parking lot; no eyewitness testimony, video surveillance, or confession of the actual murder; no forensic evidence linking Syed to the act of strangling Hae or putting Hae’s body in the trunk of her car; and no records from the Best Buy payphone documenting a phone call to Syed’s cell phone. In short, at trial the State adduced no direct evidence of the exact time that Hae was killed, the location where she was killed, the acts of the killer immediately before and after Hae was strangled, and of course, the identity of the person who killed Hae. (emphasis added).

The State's weaknesses on these fronts therefore allowed the judges to conclude as follows:

It is our opinion that, if McClain’s testimony had been presented to the jury, it would have “alter[ed] the entire evidentiary picture,” because her testimony would have placed Syed at the Woodlawn Public Library at the time the State claimed that Syed murdered Hae....Such testimony would have directly contradicted the State’s theory of when Syed had the opportunity and did murder Hae. The State even implicitly conceded the strength of McClain’s testimony and its potential impact on the jury when it attempted to present a new timeline for the murder at the second hearing. The post-conviction court aptly noted that the new timeline “would [have] negate[d] the relevance of the potential alibi.” 

What's interesting is that the State's attempt to shift the "come and get me" call from 2:36 P.M. to 3:15 P.M. came back to bite it again...because the judges found this attempt only underscored the importance of Asia McClain's alibi testimony and the prejudice caused by Cristina Gutierrez's failure to contact her.

So, what's next? As noted by Steve Klepper:

-The State can file a motion for reconsideration with the Court of Special Appeals within 30 days (April 30);

-On April 30, if there has been no motion for reconsideration, the Court of Special Appeals will issue its mandate, which will make its opinion final;

-Within 15 days after the mandate issues, the State can file a petition for certiorari with the Court of Appeals of Maryland, which is the state’s highest court. Assuming the mandate issues on April 30, that deadline will be May 15;

-Syed will have 15 days to file a conditional cross-petition on any issues where he lost;

-There are seven active judges on the Court of Appeals, and it takes three votes to grant cert for the court to allow the State to appeal (or two if multiple judges recuse themselves.

If the Court of Appeals doesn't grant cert, the order granting a new trial takes effect and there will be a new trial, a decision not to re-prosecute, or a negotiated plea deal.



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How do you feel about their ruling on the cell tower evidence? Was it just a move to avoid a flood of appeals based on AT&T disclosure?

Judge Graeff sounds like a real tool. His dissent seemed poorly written.

Posted by: Robert | Mar 29, 2018 1:24:21 PM

When there is a dissenting opinion at COSA, is it typical for COA to allow an appeal through?

Posted by: Ben | Mar 29, 2018 1:33:11 PM

Thanks for always breaking down the info into simpler terms, Colin!

Posted by: AH | Mar 29, 2018 1:44:49 PM

thank you - -very clear summary

Posted by: Sally Smith | Mar 29, 2018 1:52:48 PM

First off, congrats to all of you! I’m elated and feel you all have had huge impact on this case. My question is, what’s next? I know the State of Maryland will probably appeal if only to save face but do you also think an Alford Plea will be talked about? Also, now that the conviction has been vacated, will he have a bail hearing?

Posted by: KimberlyAlcione | Mar 29, 2018 2:17:18 PM

Bravo to all.

Posted by: Barbara Santry | Mar 29, 2018 2:18:50 PM

Great insight, Colin! Will they seek bail again now that this opinion is issued?

Posted by: Elizabeth | Mar 29, 2018 2:19:45 PM

(Cel-e-brate good times, come on! Doo doo doo doo doo doo doo dah. Woo-hoo!)

Now can we please know what the latest don details are? I bet someone finally was able to talk to Debbie, and we found out what the whole “new boyfriend assaulted Debbie” line in the police notes was about.

... And im guessing it wasn’t that Ritz misspoke—err-miswrote? “Assaulted” but really he meant “insulted” (this theory came courtesy of Seamus Duncan, as you might have guessed)

Posted by: Paul | Mar 29, 2018 4:19:33 PM

Robert: I still need to read that portion of the opinion.

Ben: My inclination would be that it makes a cert grant more likely, but I don’t know if there are any statistics on it.

AH: You’re welcome.

Sally: You’re welcome.

Kimberly: The State will probably try to appeal. If they fail, I’m sure an Alford Plea will be discussed.

Barbara: Thanks.

Elizabeth: The defense can renew the bail application. I don’t know how much play it will get.

Posted by: Colin Miller | Mar 29, 2018 4:37:19 PM

And of course there is also the not so secret weapon if there is a retrial. The lividity evidence which blows Jay and the state’s case out of the water.

Posted by: Abby | Mar 29, 2018 5:23:47 PM

Great blog, and great work. How long does the higher court generally take to make a decision on whether to hear a case or not?

Posted by: Hannah | Mar 29, 2018 11:45:34 PM

Congratulations to you and all of the team fighting for Adnan's release! I'm so thrilled with this -- and I really hope Jay and Don do get questioned in the new trial.....

Posted by: Lisa | Mar 30, 2018 5:04:25 AM

Judge Graeff comes from the Attorney Generals office of Criminal appeals, no wonder she dissent. Judge Woodward on the other hand, served as a trial judge for I think about 20 years, starting out at the District Court level. He knows what it should take to prove a case. Bravo to all!

Posted by: Linnette Garber | Mar 30, 2018 6:06:10 AM

Thanks for this update. I'd be interested to hear your take on the Graeff dissent. She seems to be saying (indirectly!) that a). if your attorney's dead you can never prove IAC; and b). once a strategic reason has been thought of then reasonable performance has occurred. Both of these seem ridiculous to me. Surely the former is not in the interests of justice, and surely there must be some strategic reasons that are sub-par?

Posted by: Cupcake | Mar 30, 2018 8:05:42 AM

In this reversal of Judge Welch's reasoning, does this mean that the cell tower issue / waiver is now eliminated for any further consideration?

Posted by: AL | Mar 30, 2018 12:46:48 PM

I'm interested in any further thoughts you have on the cell tower claim waiver. For me, Judge Welch's reasoning that the cell tower evidence was the "crux" of the case, and was not waived, made intuitive sense. It seems COSA has brushed this line of reasoning aside?

Posted by: Jonathan | Mar 30, 2018 1:24:41 PM

Let me add my note of thanks for your commitment over the years. I understand the system much better, and you have played a longer term role in (hopefully) alleviating human suffering and injustice.

Posted by: Hal | Mar 30, 2018 2:14:31 PM

Judge Graeff's dissent is disappointing. Her conclusion is that there must be a presumptively reasonable strategy not to investigate an alibi witness, unless the defense can prove on the record that there was no strategy. Also, she completely disregards Wearry v Cain in stating that, even if CG’s performance were deficient, it wouldn’t have mattered to the prejudice prong because the trial court stated in its opinion that the crux of the State’s case was the burial. The crux of a murder case is the murder! Finally, she repeatedly went back to the trial court’s initial ruling (when Adnan’s PCR was originally denied) repeatedly, picking only the statements that were most favorable to the State in the initial and second rulings.

Posted by: FormerAgent | Mar 31, 2018 2:48:36 PM

If this ruling stands, it doesn’t mean that Adnan can’t raise the unreliability of the cell tower evidence at a new trial. Same arguments used before COSA and at PCR hearing regarding its unreliability would be made at trial to keep that evidence from ever reaching the jury.

Posted by: Kelly | Apr 1, 2018 5:00:43 AM

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