Wednesday, November 28, 2018
A Majority of the Court of Appeals Judges Who Decided the Kulbicki Case 4 Years Ago Will NOT Be Deciding the Adnan Syed Case
On Thursday, there will be oral arguments in the Adnan Syed case in the Court of Appeals of Maryland on two issues: (1) was trial counsel ineffective in failing to contact prospective alibi witness Asia McClain; and (2) was trial counsel ineffective in failing to use the AT&T disclaimer to cross-examine the State's cell tower expert (with emphasis on whether Adnan has waived this issue)? What's interesting is that the Court of Appeals addressed similar issues a mere four years ago in its 2014 opinion in Kulbicki v. State. In Kulbicki, the Court of Appeals of Maryland found that trial counsel was ineffective in failing to cross-examine the State's comparative bullet lead analysis (CBLA) expert with a report calling into question the reliability of CBLA.* And, importantly, the Court of Appeals did so despite the defendant previously abandoning that issue. So, Kulbicki and the Adnan Syed case both involve similar substantive issues and also both involve possible issues of waiver. In Kulbicki, 4 judges ruled in favor of the defendant and 3 dissenting judges ruled in favor of the State. So, a mere four years later, how many of those same judges will hear Adnan's case?
The 4 judges who ruled in favor of the defendant in Kulbicki were Judges Battaglia, Greene, Adkins, and Eldridge. 2 of these judges -- Judges Greene and Adkins** -- will hear the appeal in the Adnan Syed case. Judge Battaglia is no longer on the court, and Judge Eldridge was retired back in 2014 and serving by special assignment.
Meanwhile, the 3 judges who ruled in favor of the State in Kulbicki were Judges Harrell, McDonald, and Rodowsky. 1 of these judges -- Judge McDonald -- will hear the appeal in Adnan's case. Judge Harrell is no longer on the court, and Judge Rodowsky was retired back in 2014 and serving by special assignment.
So, despite only four years passing, only 3 judges remain from Kulbicki, and a majority of judges -- 4 -- are new to the court:
Honorable Mary Ellen Barbera, Chief Judge: In July 2013, Governor Martin O'Malley appointed Judge Barbera to the Court of Appeals of Maryland.
Honorable Shirley M. Watts, Judge: In July 2013, Governor Martin O'Malley appointed Judge Watts to the Court of Appeals of Maryland
Honorable Michele D. Hotten, Judge: In December 2015, Governor Larry Hogan appointed Judge Hotten to the Court of Appeals of Maryland
Honorable Joseph M. Getty, Judge: In June 2016, Governor Larry Hogan appointed Judge Getty to the Court of Appeals of Maryland.
*The United States Supreme Court later reversed this ruling on appeal.