Sunday, March 17, 2019
As I noted in a prior post, the next option for Adnan Syed after the Court of Appeals of Maryland denied him a new trial is to file a motion for reconsideration with the Court of Appeals of Maryland. Two grounds for such a motion under Maryland Rule 8-605(b) are
(1) whether the Court's opinion or order did not address a material factual or legal matter raised in the lower court and argued by a party in its submission to the Court, and if not raised or argued, a brief statement as to why it was not raised or argued;...
(5) if the motion or response is filed in the Court of Appeals, whether and how the Court's opinion or order is in material conflict with a decision of the United States Supreme Court or a decision of the Court of Appeals
As I noted in my prior post, a motion for reconsideration is a real long shot, but I will use this post to articulate a strong argument for such a motion in the Adnan Syed case.
Let's start with the law. In State v. Jones, 771 A.2d 407, 425 (Md.App. 2001), the Court of Special Appeals of Maryland held that
The standard of review of the lower court's determinations regarding issues of effective assistance of counsel “is a mixed question of law and fact...."...We "will not disturb the factual findings of the post-conviction court unless they are clearly erroneous."...But, a reviewing court must make an independent analysis to determine the "ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed."
The Court of Appeals of Maryland later cited this language with approval in State v. Sanmartin Prado, 141 A.3d 99, 108 (Md. 2016).
So, what does this mean? Judge Welch made three legal conclusions with regard to Adnan's ineffective assistance/alibi claim: (1) trial counsel rendered deficient performance by failing to contact prospective alibi witness Asia McClain; (2) this failure to contact was not prejudicial; and therefore (3) Adnan did not receive the ineffective assistance of counsel. These are the conclusions that go to the ultimate question of whether there was a violation of the right to counsel.
And, as noted in Jones, the Court of Special Appeals and the Court of Appeals do an independent analysis of these legal conclusions using what's known as de novo or clean slate review. In other words, the Court of Special Appeals and the Court of Appeals owe no deference to Judge Welch's three legal conclusions and are free to look at these conclusions with fresh sets of eyes.
Conversely, Judge Welch made several factual findings, such as whether trial counsel contacted Asia McClain and how she would have testified at trial. As noted in Jones, the Court of Special Appeals and the Court of Appeals should not reverse these factual findings unless they are clearly erroneous. In State v. Brooks, 812 A.2d 342 (Md.App. 2002), the Court of Special Appeals held that
A finding of fact should never be held to have been clearly erroneous simply because its evidentiary predicate was weak, shaky, improbable, or a "50–to–1 long shot." A holding of "clearly erroneous" is a determination, as a matter of law, that, even granting maximum credibility and maximum weight, there was no evidentiary basis whatsoever for the finding of fact. The concern is not with the frailty or improbability of the evidentiary base, but with the bedrock non-existence of an evidentiary base.
In this post, I will address two significant factual findings by Judge Welch: (1) "[t]he trial record is clear,...that the State committed to the 2:15 p.m. — 2:45 p.m. window as the timeframe of the murder and the 2:36 p.m. call as the call from the Best Buy parking lot;" and (2) the State's suggested "new timeline that would have allowed Petitioner to commit the murder after 2:45 p.m. and then call Wilds at 3:15 p.m. instead of 2:36 p.m" was practically impossible "[b]ased on the facts and arguments reflected in the record":
These were clearly factual findings based upon Judge Welch's review of the trial record and distinct from Judge Welch's ultimate legal conclusion that the failure to contact Asia McClain was not prejudicial and therefore not ineffective assistance of counsel (because the "crux" of the State's case was the Leakin Park pings/the burial). Both of these factual findings simply involved Judge Welch combing the trial record and determining (1) what evidence/argument/timeline they presented; and (2) whether their evidence/argument would have supported a different timeline.
Subsequently, the Court of Special Appeals of Maryland agreed with Judge Welch's factual finding, concluding:
We agree with the post-conviction court’s rejection of the State’s attempt to alter its timeline of the murder and will analyze the prejudice prong relating to McClain’s alibi testimony based on the State’s timeframe of Hae’s murder: between 2:15 p.m. and 2:35 p.m. on January 13, 1999.
The Court of Special Appeals, however, disagreed with Judge Welch's legal conclusion, finding that:
It is our opinion that, if McClain’s testimony had been presented to the jury, it would have "alter[ed] the entire evidentiary picture," because her testimony would have placed Syed at the Woodlawn Public Library at the time the State claimed that Syed murdered Hae....Such testimony would have directly contradicted the State’s theory of when Syed had the opportunity and did murder Hae. The State even implicitly conceded the strength of McClain’s testimony and its potential impact on the jury when it attempted to present a new timeline for the murder at the second hearing.
In its opening brief to the Court of Appeals of Maryland, the defense advanced this same argument regarding the timeline, noting that
the testimony of the witness no one contacted would have punctured both the “When” and the “Where” of the State’s core theory.[FN6]
[FN6] Indeed, as the majority observed, the State “implicitly conceded the strength of McClain’s testimony and its potential impact on the jury when it attempted to present a new timeline for the murder at the second hearing.” Op. 102—03. This rightly “solidifie[d] [the majority’s] conclusion” that trial counsel’s failure t0 investigate the McClain alibi was prejudicial. Id. at 103.
Finally, in its opinion denying Adnan a new trial on the ineffective assistance/alibi issue, the Court of Appeals of Maryland agreed with Judge Welch's legal conclusion that the failure to contact Asia McClain was not prejudicial:
Trial counsel’s deficient performance, therefore, could not have prejudiced Mr. Syed in light of the totality of the evidence presented to the jury.
But the problem for the Court of Appeals is that it did so by disturbing Judge Welch's factual finding regarding the State's timeline at trial, concluding that
the jury could have disbelieved that Mr. Syed killed Ms. Lee by 2:36 p.m., as the State’s timeline suggested, yet still believed that Mr. Syed had the opportunity to kill Ms. Lee after 2:40 p.m. Ms. McClain’s testimony, according to her affidavit, failed to account for Mr. Syed’s whereabouts after 2:40 p.m. on January 13, 1999.
First, this conclusion clearly disturbs Judge Welch's factual fining that the State at trial committed to the 2:15-2:45 window as the timeframe of the murder, with its arguments and evidence making the 2:45-3:15 window practically impossible. Second, this becomes even clearer when we look at what the Court of Appeals characterized as some of the crucial evidence against Adnan that negated a finding of prejudice:
Various witnesses, including Ms. Pusateri, Nisha Tanna, and Kristina Vinson, testified to either seeing or speaking by cell phone with Mr. Wilds and Mr. Syed together at various times throughout the afternoon and evening on January 13, 1999.
Now, take another look at the key footnote from Judge Welch's opinion. He found the 2:45-3:15pm timeline practically impossible precisely because it would have made the afternoon calls, such as the 3:21pm call to Jennifer Pusateri, practically impossible based upon Jay's version of events.
So, what does this mean? It means that before the Court could have disturbed Judge Welch's factual finding regarding the State's trial timeline, it needed to determine that this factual finding was "clearly erroneous." It didn't do that. Instead, the court simply made a conclusory statement that the jury could have disbelieved the State's timeline and believed a later timeline without addressing Judge Welch's factual finding to the contrary.
Therefore, the defense seems to have grounds for a viable motion for reconsideration under Maryland Rule 8-605(b)(1) and/or (5). Under Rule 8-605(b)(1),
-Judge Welch (and the Court of Special Appeals) made the material factual finding that the State committed to the 2:15-2:45 timeline at trial, with its evidence and arguments being inconsistent with the 2:45-3:15 timeline;
-the defense raised this timeline argument in its brief to the Court of Appeals; and
-the Court of Appeals found that the jury could have believed the 2:45-3:15 timeline without addressing Judge Welch's factual finding to the contrary.
Alternatively, if you believe that the Court of Appeals's finding did address Judge Welch's factual finding, the motion for reconsideration could argue under Rule 8-605(b)(5) that the Court of Appeals improperly disturbed Judge Welch's factual finding without a determination that his finding was "clearly erroneous," as required by Court of Appeals decisions like State v. Sanmartin Prado, 141 A.3d 99, 108 (Md. 2016).
Again, such a motion would be a long shot because it requires the justices to admit they made an error, but it seems abundantly clear that they made a fundamental error here. Under Rule 8-605(f),
A motion for reconsideration shall be granted only with the consent of at least half the judges who concurred in the opinion. If a motion for reconsideration is granted, the Court may make a final disposition of the appeal without reargument, restore the appeal to the calendar for argument, or make other orders, including modification or clarification of its opinion, as the Court finds appropriate.
-the State's case was corroborated by the testimony of Becky Walker and Inez Butler Hendricks, who both said they saw leaving school in a hurry between 2:15 and 2:20pm;-Jenn's testimony that Jay received the "come and get me" call at her place was corroborated by the 2:36pm call pinging tower L651B, which covered her house; and-the State's case was corroborated by the testimony of witnesses such as Jennifer Pusateri and Nisha Tanna regarding the afternoon calls on Adnan's call log because a 2:36pm "come and get" me call allowed these calls to occur as described in Jay's narrative.
-the jury would have needed to reject the testimony of Becky Walker and Inez Butler Hendricks, who both said they saw leaving school in a hurry between 2:15 and 2:20pm;-the jury would have needed to reject the State's arguments/evidence that the 2:36pm call was the "come and get me" call and believe instead that it was the 3:15pm call despite the State presenting no arguments/evidence in support of that theory;-the jury would have needed to believe either that Jenn was wrong about Jay receiving the "come and get me" call at her house or that the cell tower ping was inaccurate because the 3:15pm call pinged tower L651C, which did not cover her house; and-the jury would have needed to believe that Jay's narrative of the events of the afternoon of January 13th or the testimony of witnesses like Jennifer Pusateri and Nisha Tanna concerning calls like the 3:21 and 3:22pm calls, but not both (no corroboration).
Again, motions for reconsideration are long shots, so I don't think that anyone should get their hopes up. But there is a clear error here, and it's one that the Court of Appeals should seek to correct...even if it leads to the same outcome.