EvidenceProf Blog

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

Monday, April 8, 2019

My First Post on the Motion for Reconsideration in the Adnan Syed Case

Today, the defense filed its Motion for Reconsideration to the Court of Appeals of Maryland in the Adnan Syed case. In this first post on the Motion, I will (1) explain how the Motion will be handled; and (2) describe (what I find to be) the Motion's most compelling argument.

Rule 8-605

Rule 8-605(a) of the Code of Maryland tells us that

Except as otherwise provided in Rule 8-602(e), a party may file pursuant to this Rule a motion for reconsideration of a decision by the Court that disposes of the appeal. The motion shall be filed (1) before issuance of the mandate or (2) within 30 days after the filing of the opinion of the Court, whichever is earlier. A response to a motion for reconsideration may not be filed unless requested on behalf of the Court by at least one judge who concurred in the opinion or order. Except to make changes in the opinion that do not change the decision in the case, the Court ordinarily will not grant a motion for reconsideration unless it has requested a response. There shall be no oral argument on the motion.

By filing its Motion for Reconsideration today, the defense has complied with Rule 8-605(a) by filing within 30 days after the Court of Appeals filed its 4-3 opinion denying Adnan a new trial.

The State currently has no right to file a response to the defense's Motion for Reconsideration, and, if that remains that case, that's very good for the State. As 8-605(a) makes clear, the Court of Appeals of Maryland ordinarily will not grant motions for reconsideration that would change the decision in the case without requesting a response. 

The Court of Appeals of Maryland should review the defense Motion for Reconsideration in conference at the end of April, and, shortly thereafter, we should hear whether (1) they have denied the Motion; or (2) they have requested a response by the State.

Next, Rule 806(f) tells us that

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.

I realllllly don't like this subsection. Because four judges concurred in opinion to deny Adnan a new trial, two of those judges must vote to grant the motion for reconsideration. I don't get this logic. Adnan lost on a 4-3 vote. Imagine that one judge in the majority reads the Motion for Reconsideration, realizes that (s)he made a mistake, and realizes that this mistake led to an incorrect vote. That would obviously be enough to get Adnan a new trial, with a 4-3 vote in Adnan's favor; however, without a second judge from the majority agreeing to grant the Motion, the Motion for Reconsideration would be denied.

That said, if there are two judges who grant the Motion to Reconsider, the judges might modify their opinion without oral arguments or might schedule new oral arguments.

Argument 4

The Motion for Reconsideration advances four arguments, and I think the fourth argument is the strongest. I discussed the possibility of this argument in a prior post. Basically, the argument goes as follows:

(1) the State argued at the reopened PCR proceeding that, if alibi witness Asia McClain had testified, they could have claimed that Adnan killed Hae Min Lee after 2:36pm, with the 3:15pm call on Adnan's call log being the "come and get me" call;

(2) "The postconviction court [Judge Welch] firmly rejected the idea of an alternative timeline and stated as a fact the following: "[T]he Court finds that the State committed to the 2:36 pm. timeline and thus the Court will not accept the newly established timeline;"

(3) Judge Welch supported this factual finding by reviewing the trial record and noting that the jury couldn't have accepted a 3:15pm "come and get me" call because 14+ minutes of actions came between the "come and get me" call and the 3:21pm call on Adnan's call log;

(4) "This fact was enshrined by the Court of Special Appeals, which 'agree[d] with the postconviction court’s rejection of the State’s attempts to alter its timeline of the murder;'"

(5) This fact was accepted by "the State itself, which abandoned its alternate-timeline argument by the time the case reached this Court;

(6) The Court of Appeals disturbed this factual finding by concluding that there was no prejudice based on the failure to contact/call Asia McClain because "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 afier 2:40 p.m.;"

(7) The Court of Appeals is not supposed to disturb factual findings unless they explain why those findings are clearly erroneous;

(8) The Court of Appeals did not explain why Judge Welch's factual finding was clearly erroneous;

(9) Judge Welch's factual finding was not clearly erroneous; and

(10) The overruling of this fact was of paramount importance because it represents the only plausible way that the failure to contact the alibi witness could have not prejudiced Syed.

These ten points tie into one of the reasons for granting a motion for reconsideration: Under Rule 8-605(b)(1), a Motion for Reconsideration should be granted if "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."

Here, this clearly seems to be the case. Judge Welch made a factual finding, and the Court of Appeals disturbed this factual finding without determining that it was clearly erroneous. Simply put, the Court of Appeals screwed up, and there's no real room for dispute under points (1) through (9). The only real question is whether the error by the Court of Appeals changes the outcome and should lead to a new trial. The Court of Appeals should grant the Motion for Reconsideration precisely so it can answer that question.

So, that's the good news. The bad news is that the defense is asking the Court of Appeals to acknowledge that they made an error when there is no higher authority to hold their feet to the fire (barring a defense Hail Mary being heard by the United States Supreme Court). The Court of Appeals of Maryland should acknowledge their mistake and give the appeal a second look. Realistically, however, it's a real long shot that the Court will grant this Motion.

(I will address the other three arguments in a future post).



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Colin, is it possible that the CoA could find that:
1) Judge Welch made a factual finding regarding the State’s commitment to the 2:36PM timeline, however
2) The CoA’s conclusion 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 afier 2:40 p.m” did NOT disturb Judge Welch’s factual finding because:

* The jury had already been presented with a slew of contradictory facts presented by the State, including discrepancies in the cell tower evidence, Jay/Jen’s disagreements, and really just about anything Jay ever said, and so

* Given that they still found Syed guilty despite those contradictions it is clear that the jury could have believed just about anything in its finding of guilt, whether or not the thing they believed contradicted something else in the State’s timeline, and the time of the murder is not special in this regard.

It’s clear the jury wasn’t following all the details here, so ‘the jury was extremely credulous and believed everything the State said’ seems both true and also maybe quite awkward for the CoA to admit.

Posted by: James Standley | Apr 8, 2019 6:27:22 PM

I read those 92 pages with anger because they were making assumptions. You know that one of the judges has only been on the court a year and is a former legislator? Hardly material for the court of appeals. Put on by republican hogan.

Posted by: Linnette garber | Apr 9, 2019 5:12:49 AM


Your reasoning seems awkward here. You're relying on Judge Welch's factual findings to claim prejudice but you omit the fact that Judge Welch himself found no prejudice using those same findings. You can't simultaneously claim that Judge Welch made no error and the Court of Appeals *did make* an error using the exact same factual findings and reaching the same conclusion.

The error in your logic chain is the last point, point #10. You presume that the *only* way the jury would have convicted Syed was to accept the afterschool timeline offered by the State. Pierce that timeline and the State has not met its burden, seems to be your argument. But that's simply not right and Judge Welch's opinion said so explicitly - the crux of this case was the technical location data + eyewitness testimony. The jury was presented with all sorts of contradictory evidence regarding the afterschool timeline. Timing was clearly not important to the jury.

There was a miscarriage of justice here. Knowing and intelligent waiver did not occur and it's this sort of technical reasoning that is correct legally but wrong factually that causes great distrust of the law amongst laypersons, in my opinion.

Posted by: Jonathan | Apr 9, 2019 8:51:58 AM

James Standley: I agree with this paragraph from the Motion for Reconsideration:

“By adopting the possibility of an alternative timeline, this Court overruled the circuit court’s factfinding without acknowledging the extensive evidence supporting it. The Court failed to grasp how rigid and interconnected the State’s trial timeline was and that it could not simply be manipulated to defeat McClain’s alibi testimony. later timeline simply cannot be reconciled with the other facts presented at trial. Based on the postconviction court’s factfinding, the majority’s alternative timeline theory was an impossibility. Yet this Court adopted it.”

Basically, I don’t think that Judge Welch was JUST saying that the State committed to the 2:36pm timeline; instead, it seems clear to me that he was saying that the facts and arguments from the trial record made it (practically) impossible for a jury to believe the later timeline.

Jonathan: Judge Welch made factual findings – such as whether the trial record showed that the State’s case was incompatible with a 2:45-3:15pm time of death – and the legal conclusion that there was no prejudice based on the failure to contact Asia McClain. Factual findings are subject to clear error review while legal conclusions are subject to de novo/clean slate review.

The Court of Appeals could have agreed with Judge Welch’s factual finding and, like him, found no prejudice. Or the Court of Appeals could have agreed with Judge Welch’s factual finding and found prejudice. But, what the Court of Appeals couldn’t do was disagree with Judge Welch’s factual finding without finding that it was clearly erroneous.

Now, you are correct that this still might not change the legal conclusion. But it might. As I note in my post, (1) through (9) are established, with (10) being the question mark. The point is that we don’t know how the four judges in the majority would have ruled if they had accepted Judge Welch’s factual findings. They should grant the Motion to explain how Judge Welch’s factual findings support the same conclusion or a different conclusion.

Posted by: Colin Miller | Apr 9, 2019 9:48:09 AM

Thank you for linking to the Motion. Even though courts almost never reverse themselves I think they have some problems here with the nationwide precedent issue.Are you going to link to the new Amici that were submitted today in another post (please say yes!)?

Posted by: Jes | Apr 9, 2019 11:42:02 AM

What does the actual court order look like if one, but only one, judge from the majority opts to vote to reconsider? Motion for reconsideration denied, by a 3-4 vote?

It's such an unfamiliar standard that you might see a "courtesy" join by another judge, just so that an awkward order like the above isn't issued.

Posted by: RR | Apr 9, 2019 1:24:21 PM

It may be that only the 4 judges get a vote. And the motion is either denied ( meaning fewer than 2 votes) or the state is ordered to respond.

Posted by: Michael | Apr 9, 2019 5:47:33 PM

Jonathon: Judge Welch's conclusion in regards to prejudice is a matter of law: precisely what appeals courts are OK to revisit carte blanche.

Factual findings on the other hand, ie the timeline issue, are only disturbed in extraordinary cases.

What is awkward about asserting they keep the facts and reevaluate the law? That's exactly what appeals courts do.

Posted by: Paul | Apr 10, 2019 4:13:53 PM

Revisiting a lower court's findings of law whilest using the lower court's findings of fact is precisely what appeals courts do most every time they overturn a lower court ruling. Otherwise, what would ya say.. they DO here...?

Posted by: Paul | Apr 10, 2019 4:19:09 PM

How could not contacting Asian possibly NOT be prejudicial?! Had she been contacted straight away she could have pointed to two other witnesses (her BF and his friend) who could potentially have also stood as witnesses at trial but also, importantly, the chance to obtain any CCTV footage of Adnan's time at the library after Asia et al left, thus refuting any question of Asia's motive/timeframe etc. Who knows what else may have come from investing this alibi, it may have led to other people in the library at the time who could have had more information. I just don't understand how these judges can possibly stand behind this..

Posted by: kat | Apr 10, 2019 5:00:55 PM

This is all wrong. The Court of Appeals owed no deference to Judge Welch’s inferences about when the murder likely occurred.

The motion for reconsideration relies on Wilson v. State, which says the appellate court "will not disturb the factual findings of the post-conviction court unless they are clearly erroneous." But that standard of review is phrased a little more carefully in other opinions, and the difference is telling. See, for example, State v. Peterson, 158 Md. App. 558, 584, 857 A.2d 1132, 1147 (2004) ("On appellate review of a decision by a post-conviction court, we will not disturb the court's ***first-level*** factual findings unless they are clearly erroneous") (emphasis added).

Where Judge Welch heard evidence in the post-conviction hearing, as on the cell tower issue, he was making “first-level” factual findings, and therefore, his conclusions were entitled to deference. On the other hand, where he was reviewing the trial record – which is what he did when deciding when he thought the murder could have occurred – he was simply addressing the prejudice prong of Strickland. The Court of Appeals reviews that sort of decision de novo.

A good explanation of this distinction is in the dissent in Skakel, the Connecticut ineffective assistance case on which Syed relies so heavily. Here is Judge Eveleigh, writing for three of seven judges on the Connecticut Supreme Court:

“Lastly, I note in this regard that the majority repeatedly relies on what the majority characterizes as the conclusion of the habeas court that ‘the substantial weight of the evidence indicated that the murder most likely was committed between 9:30 and 10 p.m. on October 30.’ This is problematic because the questions at issue here—whether the alibi was a complete or partial one, whether the jury reasonably could have concluded that the crime was committed after the alibi period—are either pure questions of law or mixed questions of law and fact, over which our review is plenary. See Small v. Commissioner of Correction, supra, 286 Conn. at 717, 946 A.2d 1203. The habeas court did not hear any testimony, take any new evidence, or make any factual findings regarding the evidence as to the likely time of death. Any conclusions in that regard were formed on the basis of the same cold trial record that now sits before us. The majority was, therefore, obliged to conduct its own comprehensive, objective review of the trial evidence to determine whether the substantial weight of the evidence did, in fact, point to a time of death between 9:30 and 10 p.m.”
Skakel v. Comm'r of Correction, 329 Conn. 1, 179–80, 188 A.3d 1, 101–02 (2018) (Eveleigh, J., dissenting).

I don’t have time to research this extensively, but through a few quick Westlaw searches, I turned up the following supporting case law.
United States v. Dennis, 185 F.3d 873 (10th Cir. 1999), 1999 WL 397402 at *3:
“The issue of whether appellant received ineffective assistance of counsel is a mixed question of law and fact that we review de novo. See United States v. Prows, 118 F.3d 686, 691 (10th Cir.1997). Having conducted a de novo review of the state trial record, we agree with the district court that appellant failed to establish prejudice within the meaning of the Strickland test.”
Sturgill v. State, 2003 WL 239743, at *4 (Tenn. Crim. App. Feb. 4, 2003):
“On appeal, we are bound by the trial court's findings of fact unless we conclude that the evidence in the record preponderates against those findings. Relative to the issue of ineffective assistance of counsel, it being a mixed question of law and fact, we review the trial court's conclusions regarding counsel's performance and prejudice under a de novo standard with no presumption of correctness.”
Johnson v. United States, 613 A.2d 888, 893 (D.C. 1992):
“Although we owe no deference to the trial court on the ultimate question of law, we agree that appellant has not carried his burden ‘that [he] affirmatively prove prejudice.’ Strickland, supra, 466 U.S. at 693.”
You can argue the CoA got the timeline issue wrong, but the appellate court owed no deference to Judge Welch’s conclusions about when the murder occurred, because Welch was relying on the same “cold trial record” that the CoA had access to.

Posted by: Sam | Apr 11, 2019 5:19:12 PM

Jes: I am addressing each of these in separate posts.

Michael: Yes.

Paul: Agreed.

kat: Agreed.

Sam: You’re citing the dissent in Skakel, but the majority in Skakel did rely on the habeas court’s conclusion about the timeline. And then the three subsequent cases you cite are all just about ineffective assistance claims being mixed questions of facts and law, which is undoubtedly true. The fact portion requires clear error for reversal while the legal portion is subject to de novo review.

Posted by: Colin Miller | Apr 11, 2019 5:43:28 PM

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