My First Take on the Final Brief in the Adnan Syed Case Before Oral Arguments

On November 19th, Justin Brown filed the final brief before oral argument will occur at the Court of Appeals of Maryland in the Adnan Syed case. This brief both is and is not about the cell tower claim. So, what exactly does that mean?

As a refresher, Adnan claims that his trial counsel, Cristina Gutierrez, was ineffective based upon failing to cross-examine the State's cell tower expert with the AT&T disclaimer, which stated: 

In his opinion granting Adnan a new trial, Judge Welch concluded that (1) Adnan had not waived this cell tower issues; and (2) Adnan had proven that he received the ineffective assistance of counsel in connection with the AT&T disclaimer. Subsequently, the Court of Special Appeals of Maryland found that (1) Adnan had waived his cell tower claim; and therefore (2) did not reach the merits of that claim. And, as this new brief notes, that means that we could be waiting another few years before Adnan's appeal is resolved. Why?

While the Court of Special Appeals denied Adnan relief on his cell tower claim, it granted him relief on his alibi claim. After hearing oral argument on November 29th, the Court of Appeals of Maryland will issue its opinion by August 29, 2019. If the Court of Appeals affirms the Court of Special Appeals' alibi ruling, that will be the end of Adnan's appeal;* he will get a new trial.

But let's say that the Court of Appeals reverses the alibi ruling and also reverses the Court of Special Appeals' ruling that Adnan waived the cell tower issue. Would the court then address the merits of the cell tower claim? The answer is probably "no." As the defense notes in its new brief,

The Court of Special Appeals never reached the merits 0f Syed’s celltower claim, and the questions this Court took up on certiorari do not encompass the merits of this claim? Thus, the proper result is to reverse the finding of waiver and remand t0 the Court 0f Special Appeals for consideration of the merits. See Md. Rule 8—131(b)(1) (“[T]he Court 0f Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross—petition and that has been preserved for review by the Court of Appeals.”).

Ugh. I think this reasoning is right. In this scenario, (1) the Court of Appeals would remand the case back down to the Court of Special Appeals at some point next year; (2) the Court of Special Appeals would then spend some period of time reaching the merits of the cell tower issue; and then (3) the appeal would almost certainly go back up to the Court of Appeals to determine whether the Court of Special Appeals got it right. And that's why we could potentially be a few years out from Adnan's appeal being resolved. 

Of course, if the Court of Appeals affirms on the alibi issue, we'll know that Adnan is getting a new trial in less than a year.

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*Barring a Hail Mary appeal to the United States Supreme Court being allowed.

-CM