EvidenceProf Blog

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

Friday, November 22, 2019

A Primer on Today's Supreme Court Conference in the Adnan Syed Case

Today, the United States Supreme Court will consider Adnan Syed's petition for writ of certiorari. That petition asks the Supreme Court to take up the following question:

Whether a court evaluating prejudice under Strickland v. Washington, 466 U.S. 668 (1984), must take the State’s case as it was presented to the jury, as ten state and federal courts have held, or whether the court may instead hypothesize that the jury may have disbelieved the State’s case, as the Maryland Court of Appeals held below.

So, what should we expect?

All of the filings in Adnan's case were

distributed to the justices’ chambers. Seven of the current justices participate in the cert pool, which is a labor-saving device in which a cert petition is first reviewed by one law clerk in one of the seven chambers. That clerk prepares a memorandum about the case that includes an initial recommendation as to whether the court should review the case; the memorandum is circulated to all seven chambers, where it is reviewed by the clerks and possibly the justices there. Justices Samuel Alito and Neil Gorsuch do not participate in the cert pool. Instead, their law clerks review the incoming cert petitions on their own and make recommendations directly to their respective justices.

Based on these reviews, the justices [might] decide to add [Adnan's case] to the discuss list, a short list of cases they plan to talk about at their next private meeting, or conference. (If no justice had asked to add [Adnan's case] to the discuss list, it would have been put on the “dead list,” and certiorari would automatically have been denied without the justices having ever discussed the case or voted on it.)

If Adnan's case ended up on the "dead list," it will not be discussed today, and we will find out Monday at 9:30am that cert has been denied in his case and that his current appeal is over.

If Adnan's case ended up on the "discuss list" and 4+ Justices agree to grant cert, we will find out Monday at 9:30am that cert has been granted and that the Supreme Court will hear his case. If Adnan's case ended up on the "discuss list" and 6+ Justices concluded they definitely would not grant cert, we will find out Monday at 9:30am that cert has been denied in his case and that his current appeal is over.

Finally, Adnan's case might end up relisted, in which case we won't have resolution on Monday.

When a case is “relisted,” that means that it is set for reconsideration at the Justices’ next Conference.  Unlike a hold, this will show up on the case’s electronic docket.  A relist can mean several things, including the fairly straightforward prospect that one or more Justices wants to take a closer look at the case; that one or more Justices is trying to pick up enough votes to grant review (four are needed); that the Justices are writing a summary reversal (that is, a decision that the lower court opinion was so wrong that the Court can decide the case on the merits without briefing or oral argument); or that one or more Justices are writing a dissent from the decision to deny review.

A case being relisted increases the chances that cert will be granted, but it's no guarantee. For example, Brendan Dassey's case was relisted before the Supreme Court ultimately denied cert. Overall, the Supreme Court receives 7,000-8,000 cert petitions each term and grants cert in only about 80 cases.





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Thank you, this is very helpful. Do you think this would be the end of the line for appeals or could there be further grounds explored through a further appeal?

Posted by: Robert | Nov 22, 2019 11:43:09 AM

What was the outcome today? Praying for justice for this young man.

Posted by: Julie Burnell | Nov 22, 2019 7:18:40 PM

Robert—if cert is denied the next step will be to file a post conviction appeal based on ineffective assistance of post conviction counsel. While Justin Brown has been far from ineffective — he is awesome — this has to be the next step bc of how the current appeals decisions were written as.

Based on that, Colin and others believe the IAC of post conviction counsel claim will (eventually) be a winner on the merits. Look up his older posts for more details.

Posted by: Paul | Nov 22, 2019 10:27:08 PM

How is a writ of cert formatted?
I have submitted 2, pro se, and the us supreme court rejected them for not being properly formatted or bound.
The first rejection stated the appendix cannot be shrunk so I re-did the appendix on 8 1/2 X 11 and that was rejected.
I am very confused.
Hopefully someone can answer my question.

Posted by: Shirley Hirshauer | Jan 8, 2020 11:17:58 AM

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