A Primer on the State's Petition for Writ of Certiorari in the Adnan Syed Case

Yesterday, the State filed its Petition for Writ of Certiorari in the Adnan Syed case. In this first post on the Petition, I will break down what it means. 

Let's start with background. On June 30, 2016, Judge Welch of the Baltimore City Circuit Court entered an order and opinion granting Adnan a new trial on the ground that he received the ineffective assistance of counsel based on his trial attorney's failure to use the AT&T disclaimer to cross-examine the State's cell tower evidence. Conversely Judge Welch found that Adnan failed to prove that he received ineffective assistance of counsel in connection with his trial attorney's failure to contact prospective alibi witness Asia McClain, concluding that (1) the failure to contact was deficient performance; but (2) the failure to contact was not prejudicial. Adnan only needed to win on one of these issues to WIN, so he was granted a new trial.

Maryland, however, has two levels of appellate courts: (1) its intermediate appellate court: the Court of Special Appeals of Maryland; and (2) its state supreme court, the Court of Appeals of Maryland. As the losing party on the cell tower issue, the State appealed to the Court of Special Appeals; as the party which lost on the alibi issue, the defense cross-appealed on the alibi issue. On March 29, 2018, the Court of Special Appeals issued an opinion affirming Judge Welch, i.e., agreeing that Adnan was entitled to a new trial. The Court of Special Appeals, however, flipped Judge Welch's reasoning.

Specifically, the Court of Special Appeals found that (1) Adnan had waived the cell tower issue; but (2) Adnan had proven ineffective assistance of counsel in connection with failure to contact prospective alibi witness Asia McClain. With regard to the alibi claim, two of the three judges now found that the failure to contact was both deficient performance and prejudicial. The third judge dissented, finding that the failure to contact was not deficient performance and did not reach the prejudice issue. Again, Adnan only needed to win on one of these issues to WIN, so the order granting a new trial was upheld.

This takes us to the Court of Appeals of Maryland. There is no right to appeal to the Court of Appeals, which, in its discretion, decides which appeals to hear. The method for asking the Court of Appeals to hear an appeal is by filing a petition for writ of certiorari, which is what the State files yesterday. Certiorari is Latin for "(we wish) to be informed," and that's the point of a petition for writ of certiorari: The losing party is trying to convince the court that it wants to be informed of an error by the lower court. Specifically, in its petition, the State is claiming that the Court of Special Appeals made errors (and created law) in its alibi ruling.

With the State having filed its petition on May 14th, the defense now has 15 days -- until May 29th -- to file a cross-petition for writ of certiorari with the Court of Appeals, asking it to review the Court of Special Appeals's ruling on the cell tower. That leaves three possibilities:

(1) the Court of Appeals denies certiorai;

(2) the Court of Appeals grants the State's petition and the defense's cross-petition; or

(3) the Court of Appeals grants the State's petition and denies the defense's cross-petition

The Court's vote on certiorari will probably take place in July or August. There are seven active justices on the Court of Appeals. Assuming that two or more of those justice don't recuse themselves, it takes three votes to grant certiorari. So, if two or fewer judges vote to grant the State's petition, the State's appeal is in dead in Maryland, and the State is left with 90 days to file a petition for writ of certiorari with the United States Supreme Court, which is almost certain to fail.

But if say, three justices vote to grant the petition and the cross-petition, the appeals by both the State and the defense will be heard. If, say, three justices vote to grant the State's petition but only two vote to grant the defense's cross-petition, only the State's appeal will be heard. Oral arguments will likely be held (and live streamed) this fall. The Court of Appeals's decision would be issued by August 31, 2019. Again, the losing party could file a petition for writ of certiorari with the United States Supreme Court within 90 days, but that petition is almost certain to fail.

I will follow up with posts on the substance of the State's petition.

-CM