Wednesday, November 28, 2018
There will be oral arguments in the Adnan Syed case in the Court of Appeals of Maryland tomorrow, November 29, 2018, at 10:00 A.M. For those who want to attend in person, the arguments are open to the public, with limited seating. The Court of Appeals is at 361 Rowe Boulevard in Annapolis, with doors opening at 8:30 A.M.:
For those who can't attend in person, you can watch a live webcast of the oral arguments here.
Oral arguments will address two issues:
(1) Did Adnan Syed receive ineffective assistance of counsel based on his trial counsel's failure to contact prospective alibi witness Asia McClain?
(2) Did Adnan Syed receive the ineffective assistance of counsel based on his trial counsel's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert?
The pertinent portion of the AT&T disclaimer
To establish a claim of ineffective assistance of counsel, a defendant must prove two prongs derived from the United States Supreme Court's opinion in Strickland v. Washington: (1) deficient performance by trial counsel; and (2) prejudice, i.e., that trial counsel's deficient performance undermines confidence in the jury's verdict.
In his initial opinion granting Adnan a new trial, Circuit Court Judge Martin Welch concluded that
(1) trial counsel was deficient in not contacting Asia McClain but that this deficiency was not prejudicial; and
(2) trial counsel was deficient in not using the AT&T disclaimer, this deficiency was prejudicial, and Adnan had not waived this issue.
In its subsequent opinion affirming Judge Welch's decision to grant Adnan a new trial, two of the three judges who heard his case at the Court of Special Appeals of Maryland concluded that
(1) trial counsel was deficient in not contacting Asia McClain and this deficiency WAS prejudicial; and
(2) Adnan had waived the cell tower issue.
A dissenting judge agreed that Adnan had waived the cell tower issue but concluded that trial counsel was not deficient in failing to contact Asia McClain.
So, that takes us to tomorrow's oral arguments in the Court of Appeals of Maryland. All six current judges on the Court of Appeals of Maryland as well as a seventh recently retired judge will hear these arguments. Those judges are (1) Honorable Mary Ellen Barbera, (2) Honorable Clayton Greene Jr., (3) Honorable Robert N. McDonald, (4) Honorable Shirley M. Watts, (5) Honorable Michele D. Hotten, (6) Honorable Joseph M. Getty, (7) Honorable Sally D. Adkins (recently retired)
The Court of Appeals of Maryland is Maryland's highest court, the equivalent of state supreme courts in other states. Whoever wins here almost certainly wins the appeal, barring the unlikely possibility that the United States Supreme Court allows the losing party to appeal.* So, how do we decide who wins?
Majority rules. If four or more judges agree that Adnan received the ineffective assistance of counsel in connection with Asia McClain, he wins and will get a new trial...unless the State drops the case or negotiates a plea deal with him. If four or more judges find that Adnan did not receive the ineffective assistance of counsel in connection with Asia McClain, he loses this claim, and we turn to the cell tower claim.
If four or more judges agree that Adnan waived the cell tower claim, he loses, and his appeal is dead...but Adnan could then likely turn around and move to reopen his postconviction proceeding based on a claim of ineffective assistance of postconviction counsel. If a four or more judges agree that Adnan did NOT waive the cell tower claim, then...the Court of Appeals will probably remand the issue back to the Court of Special Appeals...because the Court of Special Appeals never reached the merits of the cell tower claim. This would then result in a new opinion by the Court of Special Appeals on the cell tower claim, followed by a new opinion by the Court of Appeals on the cell tower claim. Now, it's possible that the Court of Appeals does address the merits of the cell tower claim, and that leads to the first issue to watch for in tomorrow's oral arguments:
Oral Argument Preview
Intro: Oral arguments are 30 minutes a side. As was the case at the Court of Special Appeals, I expect a "hot bench," with the judges constantly interrupting the attorneys with questions. The attorneys can only discuss evidence in the record and cannot reference "new" evidence that is not on the record.
1. As noted, I expect that the Court of Appeals of Maryland will only address the waiver aspect of the cell tower claim. That all changes, however, if one or more judges tomorrow starts to ask questions about the AT&T disclaimer, the reliability of cell tower pings (on incoming calls), and/or the importance of the pings to the State's case. This would reveal that the judges are likely to address the merits of the cell tower claim. And there would certainly be reason for them to do so. The court likely has little interest in this appeal persisting for another few years. And yet, if the Court of Appeals does not address the merits of the cell tower claim, that is exactly what will happen, either in the form of a remand or a claim of ineffective assistance of postconviction counsel. Now, I still doubt that the court gets to the merits. But a question here or there could change that analysis.
2. Does anyone mention excusing waiver? As I've noted before, both the Court of Special Appeals and the Court of Appeals can excuse waiver of an issue. Will the defense mention excusing waiver? Will the judges broach the subject in questioning? If either of these is true, excusing waiver is on the table. If not, we're just looking at whether the cell tower issue was waived.
3. Are the judges defensive with regard to Curtis v. State? In his opinion finding NO waiver of the cell tower issue, Judge Welch said he was merely applying the Court of Appeals' opinion in Curtis v. State. In reversing this ruling, the judges of the Court of Special Appeals held that Curtis v. State was a more limited opinion than Judge Welch claimed it to be. They had to do this because the Court of Special Appeals cannot repudiate settled precedent from the Court of Appeals. So, do the judges grill the State about whether the Court of Special Appeals improperly repudiated Curtis v. State ...or do the judges grill the defense about trying to stretch the Curtis v. State decision beyond its limits? It can be tough to get a read on where judges stand based on their questions, but the tenor and type of these questions can be revealing.
4. How do the judges talk about Cullen v. Pinholster. The defense has made its intentions clear on the alibi claim. They've cited precedent from across the country to support their claim that failure to contact an alibi witness constitutes the ineffective assistance of counsel. In my mind, the most important opinions in this regard are: (1) In re Parris W. (Court of Appeals of Maryland); (2) Griffin v. Warden, Maryland Correctional Adjustment Center (Fourth Circuit case originating out of Baltimore); (3) Montgomery v. Petersen, (defense counsel actually contacted a dozen alibi witnesses); (4) Foster v. Wolfenbarger (nearly identical facts to Adnan's case, with defense counsel being found ineffective despite actually contacting the alibi letter writer).
In response, the State has pinned all its hopes on the Supreme Court's opinion in Cullen v. Pinholster, which was cited by the dissenting opinion in the Court of Special Appeals. Specifically, while Griffin says we shouldn't invent hypothetical reasons for why an attorney might not have contacted an alibi witness, the State claims that Cullen held that courts are supposed to entertain the possible reasons why an attorney might have acted in a certain way. Now, Cullen was not a case involving an alibi witness, and I would say that it is analogous to cases in which attorneys contacted but did not call alibi witnesses because the attorney in Cullen contacted but did not call an expert witness.
The defense in Cullen claimed a psychiatrist contacted by trial counsel should have been called at the sentencing hearing
Of course, the State believes otherwise. How will the judges feel? Again, it's tough to read the tea leaves of oral arguments, but I think we should get a pretty good sense of what the judges feel about the applicability of Cullen based on the questions that they ask to the State and the defense.
5. How much will the State and the judges focus on the prejudice prong of the ineffective assistance of counsel test. In its briefs to the Court of Appeals, the State has focused primarily on the deficiency prong and given short shrift to the prejudice prong. During oral arguments, will the State do more than make passing reference to the alleged "overwhelming" evidence of Adnan's guilt? Will the judges question the defense about how Asia's testimony might have changed things at trial? I think the case law is on Adnan's side on both prongs of the ineffective assistance test for the alibi claim...but even more so on the deficient performance prong. Thus, the less focus on the prejudice prong, the better the chances that Adnan gets a new trial.
6. Do the judges reference the ABA Standards for Criminal Justice, scoff at the idea of an "alibi by routine," etc.? As I've noted, there is a pretty compelling amici curiae (friend of the court) brief in this case written by Steven Klepper (@MdAppeal) on behalf of the Maryland Criminal Defense Attorneys' Association, the Maryland Office of the Public Defender, and various criminal defense attorneys from Maryland. It argues that trial counsel's behavior violated the ABA standards and that the State has created the concept of an "alibi by routine" as a viable alternative to contacting Asia McClain. If the judges mention some of the arguments from this brief during oral arguments, it's a very good sign for the defense.
*It takes four Supreme Court Justices to grant certiorari and allow a losing party to appeal. While it is unlikely that the Supreme Court would "grant cert," it did exactly that in the similar Kulbicki case three years ago.