Wednesday, June 20, 2018
Steve Klepper (@MDAppeal) has a great mega-thread on the appeal in the Adnan Syed case that coincides with a significant development in that appeal. So, where do we currently stand, and what can Klepper's thread tell us about the future of Adnan's case?
The seven judges of the Court of Appeals of Maryland have a monthly conference. Yesterday, the judges had their June conference. The July conference is on July 26th. In addition to conducting other business at these conferences, these judges receive appeals filings, like petitions for writs of certiorari and responses. As I've noted before, petitions for writs of certiorari (cer petitions) are filings in which the losing party at the Court of Special Appeals of Maryland asks the Court of Appeals of Maryland to hear their appeal. If three or more judges agree to hear the appeal (grant cert), the Court of Appeals will hear the appeal. If two or fewer judges agree to hear the appeal, cert is denied, i.e., the Court of Appeals will not hear the appeal and the opinion of the Court of Special Appeals stands.
As Steve Klepper reported, the appeal filings in the Adnan Syed case were distributed to the Court of Appeals judges yesterday. Over the next month, the judges will review these filings and decide whether to grant cert. Typically, the vote on whether to grant cert would occur at the July conference (July 26th), although sometimes such votes happen before the next conference. Assuming the vote occurs at the July conference, we should know whether the Court of Appeals granted or denied cert before the end of July. Again, if the Court grants cert, the appeal will be heard, with oral arguments likely taking place in the fall. If the Court denies cert, the opinion granting Adnan a new trial stands, and the State is out of appeals at the state level (they could still try a Hail Mary to the Supreme Court).
So, what's the likelihood that the Court of Appeals grants cert? Klepper and I are pretty much on the same page. He notes that, in recent criminal and civil cases with dissenting opinions, the Court of Appeals had granted cert 80% of the time. This is consistent with my finding that the Court of Appeals has granted cert in 80% of recent criminal cases with dissenting opinions. And yet, like me, Klepper ultimately concludes that the odds of a cert grant in this case are lower, only around 50%. Why?
Well, again, we seem to be on the same page. Here is a key section of Klepper's mega-thread:
I raised a similar argument in this post.
So, what does this all mean? The reason why the Court of Appeals often grants cert in cases with dissents is that there's a clear clash between the majority and the dissent at the Court of Special Appeals...and the losing party crafts a "question presented" to the Court of Appeals that argues for the position advanced by the dissenting opinion.
In this case, the State could have done a "question presented" that matched the position advanced by Judge Graeff's dissenting opinion. It would have gone something like:
Whether the Court of Appeals erred in finding that Mr. Syed met his burden to overcome the presumption that counsel’s failure to contact a potential witness was based on reasonable trial strategy under the Strickland test. the requirements of the performance prong of the Strickland test?
This is pretty close to the end of Judge Graeff's opinion, where she wrote:
[Mr. Syed] has failed to meet his burden to overcome the presumption that counsel’s failure to contact Ms. McClain was based on reasonable trial strategy, and therefore, he has failed to meet the requirements of the performance prong of the Strickland test.
Judge Graeff's listed about five or six reasons why she thought that Adnan had not overcome this presumption, and a broad "question presented" would have allowed the Court of Appeals to grant cert if it possibly agreed with any of those grounds.
But instead, the State listed the following "question presented" in its cert petition:
Whether the Court of Special Appeals erred in holding that defense counsel pursuing an alibi strategy without speaking to one specific potential witness of uncertain significance violates the Sixth Amendment’s guarantee of effective assistance of counsel.
The cert petition than explains the alibi/trial strategy:
As part of Syed’s overall trial strategy, his seasoned counsel developed and pursued an "alibi-by-routine" defense....
That's problematic for a few reasons. First, Judge Graeff said nothing about an "alibi-by-routine" defense in her dissenting opinion. Second, the State's cert petition doesn't cite any authority from any jurisdiction talking about an "alibi-by-routine" defense. Third, there is no authority from any jurisdiction talking about an "alibi-by-routine" defense. Fourth, there's no such thing as an "alibi-by-routine" defense; the phrase itself as an oxymoron.
And this is why we're in coin flip territory. The judges of the Court of Appeals might look at the question presented and its explanation, see no support for the "alibi-by-routine" claim, and decide against granting cert. After all, the "question presented" by the State is based upon a false premise: that defense counsel developed an "alibi-by-routine" defense that Asia McClain would have contradicted.
Or, the judges of the Court of Appeals could look beyond the State's cert petition, focus on the reasons given by Judge Graeff in her dissent, and grant cert to address the issues she raises in her dissent?
What will the Court of Appeals end up doing? We'll find out soon enough.