EvidenceProf Blog

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

Friday, March 8, 2019

Justice Delayed: Court of Appeals of Maryland Issues 4-3 Opinion Denying Adnan Syed a New Trial

Today, the Court of Appeals of Maryland did exactly what I did not expect it to do. The Court (1) reversed the portion of the opinion of the Court of Special Appeals of Maryland finding ineffective assistance of counsel based on failure to contact prospective alibi witness Asia McClain; and (2) affirmed the portion of the opinion of the Court of Special Appeals of Maryland finding that Adnan has waived his cell tower claim. The reason I find this ruling so bizarre is that it means that we are likely to have this same appeal cycle through the Maryland appellate process over the next few years.

Let's start at the beginning. In his opinion granting Adnan a new trial, Judge Martin Welch found that (1) Adnan had not waived his cell tower claim and had established that his trial counsel was ineffective by failing to cross-examine the State's cell tower expert with the AT&T disclaimer; and (2) Adnan had proven that trial counsel rendered deficient performance based on failure to contact prospective alibi witness Asia McClain but had failed to establish prejudice, i.e., the reasonable probability of a different outcome at trial, because the "crux" of the State's case was the Leakin Park pings. Thereafter, the Court of Special Appeals of Maryland found that (1) Adnan had waived his cell tower claim; and (2) Adnan had proven that trial counsel was deficient in failing to contact prospective alibi witness Asia McClain and that this failure was prejudicial.

In today's ruling, four justices of the Court of Appeals of Maryland effectively reinstated Judge Welch's opinion on the alibi issue, finding a lack of prejudice in part due to the cell tower pings.

And so now where does that leave us? Adnan no longer gets a new trial. The defense can now file a motion for reconsideration with the Court of Appeals of Maryland, but it is highly likely that the court would deny such a motion. Then, the defense can file a petition for writ of certiorari with the United States Supreme Court, which is highly likely to deny that petition.

And then? Well, this is why I find today's ruling so weird.* Neither the Court of Appeals nor the Court of Special Appeals disturbed Judge Welch's finding that trial counsel was ineffective by failing to cross-examine the State's cell tower expert with the AT&T disclaimer. Instead, they both simply found that the issue was waived. In other words, both courts found that Adnan had a winning substantive argument for his conviction being tossed but found that they couldn't consider it on procedural grounds. 

And so...Adnan can now file a motion to reopen his postconviction proceeding. The Court of Appeals of Maryland has found that ineffective assistance of postconviction counsel is grounds for reopening a postconviction proceeding. Gray v. State, 879 A.2d 1064 (Md. 2005). And the test for determining whether to reopen a postconviction proceeding is whether the defendant can "establish that postconviction relief would have been granted but for the ineffective assistance of...postconviction counsel." Harris v. State, 862 A.2d 516 (Md. 2004).

Such a claim in Adnan's case is fairly straightforward:

(1) the Court of Appeals of Maryland found that I waived my cell tower claim because my postconviction counsel did not include it in my first PCR petition; and

(2) if my PCR counsel included the cell tower claim in my first PCR petition, I would have been awarded a new trial, as established by Judge Welch's opinion granting me a new trial.

What makes this odd is that the Court of Appeals of Maryland has to see this coming...and they could have avoided this delay by simply excusing waiver of the cell tower issue. And that's why I titled this post "Justice Delayed." I still think Adnan is getting a new trial...but now, it might be another few years before he gets relief.


*And, of course, disheartening. 



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Just because the courts didn’t address Welch’s finding on the cell tower issue doesn’t mean they agreed with it thought, does it?

Posted by: Michael Byrnes | Mar 8, 2019 11:57:12 AM

No, but if they did disagree, they should have addressed it in dicta b/c now there's every reason to grant a motion to reopen.

Posted by: Colin Miller | Mar 8, 2019 12:11:30 PM

Would this require Adnan Syed to have new lawyers?

Posted by: Von Jordan | Mar 8, 2019 12:18:29 PM

Do you think that the public attention on the case makes them resistant to a new trial? Do you think that by kicking the case down the road may be motivated by a hope that interest will die down? Even unconsciously?

Posted by: Diane Kallas | Mar 8, 2019 12:35:25 PM

Von Jordan: I assume the answer would be "yes" for a claim of ineffective assistance of postconviction counsel.

Diane Kallas: I didn't think it impacted Judge Welch or COSA, and I don't think it impacted COA.

Posted by: Colin Miller | Mar 8, 2019 1:02:45 PM

Beyond disappointing to see the majority adopt Thiru's incoherent argument, particularly in the conclusion that Asia would have been damaging as a witness and/or she fabricated her letter and testimony.

Posted by: FormerAgent | Mar 8, 2019 1:32:42 PM

I don't understand how Baltimore and Marlyland's Justice and Legal systems are allowed to corruptly continue to operate - they've been doing stuff detrimental to the citizens of Maryland for time immemorial and other then the more-than-occassional US Supreme Court fixes, both continue to have a wanton disregard for fairness, the law, and common sense.

Posted by: Kevin Hansen | Mar 8, 2019 1:34:20 PM

FormerAgent: I think that was just Justice Watts, right? The other justices basically adopted Judge Welch's ruling that the "crux" of the State's case was the Leakin Park pings and not the murder timeline.

Posted by: Colin Miller | Mar 8, 2019 1:34:37 PM

Do you think it would be a better move for Adnan to move for DNA testing or ineffective assistance now?

I know the cases are very different, but watching Kathleen Zellner work in mam seems like it is a better strategy to destroy the states case and find evidence rather than go after procedural stuff or ineffective assistance.

Posted by: Roberr | Mar 8, 2019 1:42:33 PM

Roberr: I expect we'll hear something on the DNA evidence pretty soon. I currently think the cell tower claim is the best route for relief.

Posted by: Colin Miller | Mar 8, 2019 2:02:21 PM

That is really terrible news. Poor Adnan. What a convoluted justice system...

Posted by: Jeff | Mar 8, 2019 2:55:03 PM


Posted by: Abby Crowley | Mar 8, 2019 3:53:54 PM

If there was a dissenting opinion would it have been released already? Is it unusual for there not to be a dissent with a 4-3 ruling?

Posted by: K. Blair | Mar 8, 2019 4:26:51 PM

I gave up social media for Lent starting on Wednesday, so I literally just saw a headline that the ruling came down today and rushed here to your blog. Thanks for always providing clarity on the legal ramifications of it all, Colin. I pray that in the wake of this momentary setback, something miraculous happens for Adnan, immediately. #FreeAdnan

Posted by: Janelle Harris | Mar 8, 2019 6:25:34 PM

Such a travesty.

Posted by: Kelly | Mar 8, 2019 6:59:53 PM

Maybe they WANT to delay the resolution of the issue for years rather than effectively admit systemic error. Without a systemic method of correcting injustices, of course, belief in the rule of law is subverted. The majority seems to be playing a very dangerous game here.

Posted by: Hal | Mar 8, 2019 11:34:34 PM

I suspect the State would argue, and these appellate courts sadly would agree, that the allegation you suggest could have been raised in the earlier motion to reopen, and therefore was waived.

Posted by: ZW | Mar 9, 2019 2:05:36 AM

K. Blair: The dissenting opinion is toward the end of this document: https://www.courts.state.md.us/data/opinions/coa/2019/24a18.pdf

ZW: He couldn't bring this claim in his initial motion to reopen because he hadn't previously brought the cell tower claim and had it rejected. It was this rejection yesterday that triggers the claim.

Posted by: Colin Miller | Mar 9, 2019 4:39:40 AM

This is all just....wrong. #FreeAdnan

Posted by: Elaine | Mar 9, 2019 6:24:09 AM

I notice that the COA opens by citing to *Bowers* (1990) for its definition of "substantial possibility," but then effectively redefines it to mean something other than what they said it did in *Williams*. Additionally, they don't do the same (or any) cumulative-error analysis, despite having done so in *Bowers*.

Is this usual? It seems like cherry-picking to me.

Posted by: pluscachange | Mar 9, 2019 8:49:14 AM

I realize that my comment above could be read as the majority wished to subvert the rule of law. To clarify, I fear that they have risked this EFFECT, not that it was their intent.

Posted by: Hal | Mar 9, 2019 11:35:13 AM

DNA evidence? Years ago (!) I had the impression that the evidence box/DNA had been lost. Has it been found? There was also doubt expressed that it would likely prove anything, unless there was evidence of sex with Adnan, which I doubt. What I would like to see is the hard drive to Hae's computer--truly unlikely at this date.

Posted by: Hal | Mar 9, 2019 11:40:59 AM

pluscachange: They couldn't do a cumulative prejudice analysis b/c they found that the cell tower claim was waived.

Posted by: Colin Miller | Mar 10, 2019 5:01:25 PM

Donate to Adan’s legal fund at launch good.com/freeadnan. Any amount helps.

Posted by: Michael Phebus | Mar 12, 2019 11:18:54 AM

What a scam! The Cops and lawyers really screwed the pooch.
“The state offered no direct evidence establishing that Mr. Syed ‘caused the death’ of Ms. Lee, and its case was largely dependent on witness testimony, which the state readily admitted was conflicting and problematic,” Hotten wrote. “… I would remand the case for a new trial.”

He should get a new trial but the system is rigged against the poor and non-whites.
Maybe the Governor can weigh in...
Good luck.

Posted by: Ben | Apr 1, 2019 6:36:38 AM

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