EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, March 10, 2019

The New Route for Adnan Syed Getting a New Trial

On Friday, the Court of Appeals of Maryland issued a 4-3 opinion denying Adnan Syed a new trial. I titled my first post on the opinion "Justice Delayed" because I regard this as a speed bump* on the route to a new trial rather than a road block. In this post, I will lay out my complete reasoning for why I believe that Adnan will eventually get a new trial.

Section 7-103(a) of the Maryland Code of Criminal Procedure states that

For each trial or sentence, a person may file only one petition for relief under this title.

For Adnan, this was the petition for postconviction relief that he filed on May 28, 2010. That said, Section 7-104 of the Maryland Rules of Criminal Procedure states that

The court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.

We've already seen Section 7-104 in action in Adnan's postconviction proceeding. On May 18, 2015, the Court of Special Appeals of Maryland remanded Adnan's case down to the Circuit Court so that Adnan could file a motion to reopen based on the allegation that trial prosecutor Kevin Urick had dissuaded prospective alibi witness Asia McClain from testifying at Adnan's first postconviction proceeding.

The defense subsequently filed a motion to reopen the alibi issue and a supplement to the motion to reopen asking the Circuit Court to consider a new claim that was not included in Adnan's first petition for postconviction relief: that trial counsel was ineffective based on failing to use the AT&T disclaimer to cross-examine the State's cell tower expert. Judge Welch of the Circuit Court subsequently granted the motion to reopen on both the alibi and cell tower issues.

Then, after a five day evidentiary hearing, Judge Welch ruled that:

(1) Adnan had not waived his cell tower claim and had proven ineffective assistance of counsel (deficient performance and prejudice) in connection with the cell tower claim; and

(2) Adnan had established the deficient performance prong of the ineffective assistance/alibi claim but had not proven the prejudice prong.

Subsequently, the Court of Special Appeals ruled that:

(1) Adnan had waived his cell tower claim by not including it in his first petition for postconviction relief (and did not otherwise address the substance of Judge Welch's cell tower ruling); and

(2) Adnan had proven ineffective assistance of counsel (deficient performance and prejudice) in connection with the alibi claim.

Finally, the Court of Appeals ruled that:

(1) Adnan had waived his cell tower claim by not including it in his first petition for postconviction relief (and did not otherwise address the substance of Judge Welch's cell tower ruling); and

(2) Adnan had established the deficient performance prong of the ineffective assistance/alibi claim but had not proven the prejudice prong.

As I noted yesterday, this means that the next steps for Adnan are (1) a motion for reconsideration with the Court of Appeals; and (2) a petition for writ of certiorari with the United States Supreme Court, neither of which are likely to be successful.

That then takes us to the third step. As noted, under  Section 7-104 of the Maryland Rules of Criminal Procedure, a defendant can file a motion to reopen a postconviction proceeding. One clearly recognized ground for reopening a postconviction proceeding in Maryland is ineffective assistance of postconviction counsel. Indeed, the Court of Special Appeals in Adnan's case cited Stovall v. State, 800 A.2d 31, 34 (Md.App. 2002) for the proposition "that a defendant may petition to reopen a post[-]conviction proceeding if post[-]conviction counsel was ineffective."

Stovall v. State was the Maryland case recognizing a claim of ineffective assistance of postconviction counsel, and its test is pretty straightforward:

We hold that a post conviction petitioner (1) is entitled to the effective assistance of post conviction counsel, and (2) has a right to reopen a post conviction proceeding by asserting facts that-if proven to be true at a subsequent hearing-establish that post conviction relief would have been granted but for the ineffective assistance of the petitioner's post conviction counsel.

What this means is that, for Adnan to be able to reopen his postconviction proceeding and win on a claim of ineffective assistance of postconviction of counsel, he must prove four elements:

(1) his trial counsel rendered deficient performance in connection with the AT&T disclaimer;

(2) this deficient performance was prejudicial, i.e., undermines our confidence in the jury's verdict;

(3) postconviction counsel rendered deficient performance in connection with the cell tower claim by not including it in the first petition for postconviction relief; and

(4) this deficient performance was prejudicial, i.e., Adnan would have won a new trial on the cell tower claim if it had been included in his first petition for postconviction relief.

The judge deciding whether these elements have been proven would usually be Judge Welch or his successor:

Screen Shot 2019-03-10 at 11.28.15 AM

Simply put, elements 1, 2, and 4 should be slam dunks for Adnan. For elements 1 & 2, as noted, after a five day hearing, Judge Welch already concluded that failure to use the AT&T disclaimer was ineffective assistance of trial counsel (deficient performance and prejudice). And, as noted, neither the Court of Special Appeals nor the Court of Appeals disturbed these findings on appeal.

Indeed, Friday's ruling by the Court of Appeals only strengthened Judge Welch's findings by agreeing with him that the "crux" of the State's case centered around the Leakin Park pings:

Screen Shot 2019-03-10 at 11.36.18 AM

With confirmation that the "crux" of the State's case was the Leakin Park pings, this makes it even clearer that the failure to use the AT&T disclaimer was (1) deficient performance ("How could you not use evidence that would have undermined the 'crux' of the State's case?"); and (2) prejudicial ("The disclaimer would have undermined the 'crux' of the State's case."). Moreover, the broad theme of the Court of Appeals's opinion was deference to Judge Welch, who of course found (1) and (2) in his opinion.

Then... a finding of (1) and (2) also means a finding of (4). Clearly, if Adnan had included the cell tower claim in his first petition for postconviction relief, he would won a new trial because he would have proven ineffective assistance of trial counsel. Again, this finding is bolstered by the Court of Appeals's ruling and specifically its finding that it was deficient performance not to contact Asia. It seems clear from that court's ruling that the failure to undermine the Leakin Park pings was prejudicial, and the finding of deficient performance in connection with Asia would also allow for a cumulative prejudice analysis.

This leaves only (3) as a question mark: Was it deficient performance to fail to include the cell tower claim in the first petition for postconviction relief? There doesn't appear to be any Maryland precedent directly on point, but the opinion of the Court of Special Appeals of Maryland in Stovall did cite to the opinion of the Supreme Court of Nevada in Crump v. Warden, Nevada State Prison, 934 P.2d 247 (Nev. 1997). In Crump, the defendant brought a claim of ineffective assistance of postconviction counsel, alleging that his postconviction counsel "failed to raise all available issues in his first petition and that this constitutes ineffective assistance of counsel."

The Supreme Court of Nevada acknowledged that this was a possible winning claim and "remand[ed] this matter to the district court for an evidentiary hearing to determine whether [counsel]'s omissions constitute ineffective assistance of counsel."

In Adnan's case, however, it seems like we already have findings by Judge Welch on this issue:

The disclaimer and the subject page were found in trial counsel's file, and the State disclosed these documents as part of pretrial discovery and conveyed its intention to introduce these records at trial.

More importantly, Petitioner was never advised that trial counsel may have been ineffective for her alleged failure to challenge the State's cell tower expert at trial with the disclaimer in prior proceedings.

In fact, Petitioner's counsel for the postconviction proceedings did not advise Petitioner about the issue until shortly before August 24, 2015, when counsel consulted with a cell tower expert about the potential ramifications of the disclaimer.1

Since Petitioner did not know about the potential implications of trial counsel's failure to challenge the cell tower evidence, he could not have knowingly waived his right to raise the allegation.

The record also shows that at Petitioner never completed his high school education.

Requiring a layman who lacks a complete high school education to understand the intricacies of cellular network design and the legal ramifications of trial counsel's failures to challenge the evidence would be inconsistent with the spirit of the Sixth Amendment.

Moreover, Adnan's postconviction counsel has ostensibly indicated that he would encourage and support a claim of ineffective assistance of postconviction counsel:

Screen Shot 2019-03-10 at 1.25.44 PM

Therefore, it seems like there's a really good chance that Adnan could establish element (3).

Now, none of this is to say that anything is guaranteed, as shown by Friday's ruling. But Friday's ruling also makes clear that the Court of Appeals of Maryland denied Adnan relief on the alibi issue because (1) the "crux" of the State's case was the Leakin Park pings; and (2) Adnan have waived the winning but complicated claim that was directly related to those pings because his postconviction counsel didn't inform him of this claim until 2015. That ruling thus provides a pretty clear roadmap to relief. Stay tuned...

______________________

*Albeit a lengthy and costly speed bump.

-CM

https://lawprofessors.typepad.com/evidenceprof/2019/03/on-friday-the-court-of-appeals-of-maryland-issued-a-4-3-opinion-denying-adnan-syed-a-new-trial-i-titled-my-first-post-on-th.html

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Comments

Could they also reopen the Brady claim about the cell tower pings as well? I may be misremembering but I thought Judge Welch never reached the merits of that because he found ineffective assistance.

Posted by: Ethan | Mar 10, 2019 9:40:47 PM

Why do you say that it is a slam dunk that “Adnan would have won a new trial on the cell tower claim if it had been included in his first petition for postconviction relief”? Why wouldn’t COA find it probable that the jury wouldn’t have come to a different verdict even after being presented with the AT&T disclaimer? For example, COA could say that the jury would have considered outgoing calls and Jay and Jen’s testimony together to conclude that it was unlikely that Jay and Adnan were anywhere else than Leakin park at the presumed time of burial.

Posted by: BobbyP | Mar 14, 2019 9:22:10 AM

BobbyP: Judge Welch found that the failure to contact Asia McClain was not prejudicial because “The potential alibi witness…would not have undermined the crux of the State's case: that Petitioner buried the victim's body in Leakin Park at approximately 7:00 p.m. on January 13, 1999. The Leakin Park burial marked the convergence point between Wilds's testimony and Petitioner's cell phone records. According to Wilds, Petitioner received two incoming calls while burying the victim's body in Leakin Park at about 7:00 p.m. The State corroborated Wilds testimony with Petitioner's cell phone records, which showed that his cell phone received two incoming calls at 7:09 p.m. and 7:16 p.m. The cell phone records also reflected that the two incoming calls connected with cell site ‘L689B,’ which the State's cell tower expert identified as the cell site that provided coverage to an area that encompassed Leakin Park.” For the same reasons, Judge Welch found that the failure to use the AT&T disclaimer to cross-examine the State’s cell tower expert was prejudicial.

In finding that the failure to contact Asia was not prejudicial, the Court of Appeals held that Judge Welch “reached the same conclusion as we do here. That court viewed Ms. McClain’s testimony in light of ‘the crux of the State’s case’ which ‘did not rest on the time of the murder.’ The post-conviction court reasoned that the State placed Mr. Syed in Leakin Park at approximately 7:00 p.m. on January 13, 1999 through the testimony of Mr. Wilds and the cell phone location evidence. With this theory in mind, the post-conviction court concluded that Ms. McClain’s testimony ‘would not have been able to sever this crucial link’ between Mr. Syed burying Ms. Lee’s body and the State’s evidence supporting that allegation.”

The Court of Appeals didn’t address the substance of Judge Welch’s cell tower ruling based on a finding of waiver. But the court’s conclusion seems entirely consistent with Judge Welch’s finding that the failure to use the AT&T disclaimer was prejudicial.

Posted by: Colin Miller | Mar 14, 2019 10:03:06 AM

While I want to believe, I’m not so certain this is so straightforward. I’m not a lawyer but in reading the Court of Appeals opinion, the judges seem to go to great lengths to show how high a bar the deficiency prong is. In the hypothetical ineffective assistance claim described in this post, you’d have to say that post-conviction counsel’s performance was deficient by not including that Gutierrez didn’t use the fax cover sheet to cross-examine the state’s expert as one of the issues in the initial PCR petition. However, unlike with the Asia claim, counsel didn’t have the fax cover sheet and no one pointed out the disclaimer to him. With Asia, counsel had two memos from her and Adnan asked Gutierrez to look into her as a possible alibi and followed up to inquire as to the result at least once. When trial counsel just ignored her existence, that seems like textbook negligence. However with his appeal, counsel didn’t have the fax cover sheet at the time of the appeal and no one pointed him to the disclaimer so it wasn’t so much that his performance was deficient but that the evidence he needed to make that claim wasn’t yet apparent. On the second prong, it seems much more clear cut that not including this claim was prejudicial as it seems almost certain it would have led to a different post-conviction result - at least if you take the Court of Appeals’ opinion as a guide. I hope this isn’t the result but what makes you so sure that not using a document he didn’t have would lead to a finding of deficient performance?

If I’m right and this strategy of appeal doesn’t succeed either, it leads to an almost illogically absurd result (which is why I’m hoping I’m wrong): that wrt the two exculpatory pieces of evidence for Adnan, not investigating Asia was deficient but not prejudicial and the cell tower pings cross-examination was deficient but the issue was initially waived and the waiver can’t be challenged because not bringing it up initially wasn’t deficient but probably was prejudicial.

Hopefully logic will prevail but COA - in finding waiver - must have realized that there were opening the door to this type of claim and decided that they didn’t believe it merits relief either. Or so it would seem. What am I missing here?

Posted by: Ethan | Mar 16, 2019 8:52:04 PM

Ethan: Judge Welch found that "The disclaimer and the subject page were found in trial counsel's file, and the State disclosed these documents as part of pretrial discovery and conveyed its intention to introduce these records at trial." Moreover, postconviction counsel had trial counsel's file.

Posted by: Colin Miller | Mar 17, 2019 5:25:07 AM

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