Friday, March 8, 2019
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.
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.