Thursday, January 10, 2019
Today, the defense team in the Adnan Syed case filed (1) a Motion for Leave to Submit a Supplemental Authority Memorandum; and (2) a Supplemental Authority Memorandum. So, what does this mean? Let's break it down.
Sometimes, after briefing and oral arguments in an appeal, some other court issues a new opinion that has bearing upon that appeal. When that appeal is in federal court, Federal Rule of Appellate Procedure 28(j) provides that
If pertinent and significant authorities come to a party's attention after the party's brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.
In other words, Rule 28(j) provides a specific mechanism for parties to supplement the record with new opinions that are issued after oral arguments.
As Adnan's team notes in its brief, (1) Maryland does not have a specific counterpart to Federal Rule of Appellate Procedure 28(j); but (2) Maryland Rule 8-431 gives the court general authority to consider additional filings, such as the filing of a supplemental memorandum. In its Motion for Leave to Submit a Supplemental Authority Memorandum, the defense is asking the Court of Appeals of Maryland to use its general authority under Maryland Rule 8-431 to consider its Supplemental Authority Memorandum.
In that Memorandum, the defense calls the court's attention to the new opinion by the Court of Appeals of Alabama in the Emanuel Aaron Gissendanner, Jr. case, which I discussed in this blog post. The defense gives three reasons for the Court of Appeals of Maryland considering this new opinion:
(1) the dissenting opinion by Court of Special Appeals Judge Graeff and the State's briefs to the Court of Appeals placed central importance on the opinion of the Court of Criminal Appeals of Alabama in Broadnax v. State, 130 So.3d 1232, 1236 (Ala. Crim. App. 2013).;
(2) in Gissender, the Supreme Court of Alabama found that it was deficient performance to fail to contact alibi witnesses, even though they contradicted the defendant's version of events; and
(3) in Gissender, the Supreme Court of Alabama held that there was prejudice in failing to contact these alibi witnesses because "[t]here is nothing as dangerous as a poorly investigated alibi."
In other words, the defense is saying that (1) the Court of Appeals of Maryland should not rely on Broadnax, which did not involve an alibi witness and which was not decided by the Supreme Court of Alabama; and (2) the Court of Appeals of Maryland should rely on Gissender, which involved the failure to contact alibi witnesses and was decided by the Supreme Court of Alabama.
So, will the Court of Appeals allow the Supplemental Authority Memorandum under Maryland Rule 8-431? I don't think it really matters. The goal of the Memorandum is to make sure that the Court of Appeals is aware of this important new opinion. And, regardless of whether that Court "accepts" or "rejects" this Memorandum, it is now aware of the Gissender opinion.