EvidenceProf Blog

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

Thursday, July 12, 2018

Court of Appeals of Maryland Grants Cert in the Adnan Syed Case

Today, the Court of Appeals of Maryland granted cert (agreed to hear the appeal(s)) in the Adnan Syed case. So, what does this mean going forward?

Here is the Court's cert grant:

Screen Shot 2018-07-12 at 11.17.04 AM

In other words, the Court (1) is allowing the State to argue that the Court of Special Appeals got it wrong on the alibi issue and should have found that the failure to contact Asia McClain was not ineffective assistance of counsel; and (2) is allowing the defense to argue that the Court of Special Appeals got it wrong when it found that Adnan waived his cell tower claim, which Judge Welch had previously found supported a finding of ineffective assistance of counsel.

The Court also issued a briefing order:

Screen Shot 2018-07-12 at 11.39.46 AM

In other words, (1) the State has to file its brief on the alibi issue by August 21st; (2) the defense has to file its brief on the cell tower issue and its reply to the alibi issue by September 20th; and (3) the State has to file its reply brief on the cell tower issue by October 22nd. And then, even though it's not listed, the defense would have 20 days after the State's last brief to file its reply on the cell tower issue (Rule 8-502(a)(6)).

Oral arguments before the seven justices of the Court of Appeals of Maryland will then be held on (1) November 29th; (2) November 30th; (3) December 3rd; or (4) December 4th. The oral arguments will be open to the public and will also be live streamed on the Court of Appeals website. The Court of Appeals will ultimately its opinion no later than August 31, 2019, meaning the opinion could come on that date or could come in, say, March or April 2019. But the opinion won't come after August 31, 2019.

If Adnan wins either the alibi or the cell tower issue, he gets a new trial, except in the exceedingly unlikely scenario in which the United States Supreme Court agrees to hear the State's appeal and reverses. If Adnan wins on neither issue, he doesn't get a new trial, again except in the exceedingly unlikely scenario in which the United States Supreme Court agrees to hear the State's appeal and reverses.*


*Notably, if the Court of Appeals affirms COSA's finding of waiver on the cell tower issue and does not disturb Judge Welch's conclusions on the merits of that issue, Adnan would immediately file a motion to reopen his postconviction proceeding and would probably have a winning argument.



| Permalink


So in the unlikely case Adnan doesn't get a new trial, he is still able to reopen his proceeding? I thought this was already the final round of all the appeals. What would be the winning argument in that case, or is that something that the defence has yet to put on the table.

Posted by: Martin | Jul 12, 2018 2:55:55 PM

I am not surprised. Not only are the legal issues complex there is also the fact of the national attention the case has received. It makes sense given that context that the Supreme Court wants to have the final say.

FWIW I still consider the cell phone tower issue to be the stronger argument. Yet given the way this has gone in the lower courts I wouldn't rule anything out in terms of what the high court actually says/does.

Posted by: Daniel | Jul 12, 2018 5:24:18 PM

Martin: Ineffective assistance of postconviction counsel is a ground for reopening a postconviction proceeding. If COA affirms the finding of waiver and doesn't disturb Judge Welch's substantive finding of IAC on the cell tower claim, there would be grounds for reopening based on ineffective assistance of postconviction counsel.

Daniel. I think the alibi claim is slightly stronger on the merits.

Posted by: Colin Miller | Jul 12, 2018 5:44:11 PM

i don't see how the alibi issue isn't clearly settled, black letter law. Each pathetic case Graeff brought up in her dissent had little to no factual relation to Adnan's case, in that for him literally every single variable is strong for an innefective assistance based on failure to contact an alibi witness claim. If this isnt a prime winning example of a failure to contact alibi witness resulting in a new trial, then I dont think there could exist a case that would be.

Posted by: Paul | Jul 12, 2018 6:51:38 PM

Argh....all I could think while reading this is ....August 2019...over another year in prison for an innocent man....and I started to fight back tears.... still it’s not all bad, right? We’re still fighting the fight. #FreeAdnan

Posted by: Elaine | Jul 13, 2018 4:02:44 AM

Maybe the Supreme Court desires to establish the novel "alibi by routine" principle so far lacking in the law.... Lordy..

Posted by: John bocum | Jul 13, 2018 7:53:35 AM

I can only hope they granted cert for an opportunity to lecture graeff for writing such a state-biased unsubstantiated dissent and to set some form of precedent to help future claims of innocence proceed more smoothly.

Posted by: Jeff | Jul 13, 2018 9:04:48 PM


Can another bail application be made for Syed? With his original conviction vacated I don't see any obvious reason to continue his incarceration.

Posted by: Jonathan | Jul 14, 2018 6:35:30 AM

I think the state will win. Third time lucky.

Posted by: Ben | Jul 16, 2018 4:01:41 AM

Colin, if it does get to the point where Adnan does claim IAC against Justin brown for the fax cover issue, would Adnans new PCR attorney need to get new expert witnesses in front of the court or would the findings by Welch be able to be used?

Posted by: Ben | Jul 19, 2018 3:13:57 AM

Paul: I agree that this seems to be black letter law territory.

Elaine: Hopefully, the opinion comes earlier.

John Bocum: If the court reverses, I think it will be in spite of the arguments made by the State, not because of them.

Jeff: Some clarity on this matter in Maryland certainly seems like a good thing.

Jonathan: It could be made, but Adnan is basically in the same position he was in when his prior bail motion was denied: he’s been granted a new trial, but the State’s appeal is pending.

Ben: (1) I think the State’s chances to win decreased significantly when the court granted cert on the cell tower issue. This both limits what the State can argue under the prejudice prong of the alibi claim and creates a decent possibility that the court excuses waiver of the cell tower claim even if it finds waiver. (2) Possibly both. The defense could certainly use what transpired before Judge Welch, but both the defense and the State might have new evidence/witness on the issue.

Posted by: Colin Miller | Jul 19, 2018 5:35:29 AM

Post a comment