Oral Argument in State of Maryland v. Adnan Syed:

My Impressions

I wanted to get this out sooner, but I’ve been swamped with my own cases.  By now, much has already been written and discussed regarding oral argument in State v. Syed.  Journalists published their articles that day and you can now purchase an audio of the arguments from the Court of Special Appeals and draw your own conclusions. So, I’ll try and narrow my focus a bit.  This was my first trip to the Maryland Court of Special Appeals where I was simply a spectator.  I’m not a journalist and I’m not disinterested.  I’m a criminal defense attorney who handles post convictions and appeals. On the occasions when I find myself at 361 Rowe Boulevard, I’m fully immersed in my client’s issues and pay little heed to the rest of what’s going on around me.  Last Thursday, I arrived as an interested observer and these are my impressions based on my notes.  I did not re-listen to the arguments after the hearing.

Adnan Syed and the Appeal of the Post Conviction Decision:

Who is Kulbibki and what does he have to do with Adnan Syed?

As you know, on June 30, 2016, the post conviction court vacated Adnan Syed’s convictions and granted him a new trial.  The post conviction court found that Syed’s trial counsel’s failure to cross examine the State’s expert  on the unreliability of incoming call cell phone data  was deficient and that that error created a substantial possibility that the result of the trial would have been different.  In other words, the post conviction court found that, but for this mistake,there is a substantial possibility that  Syed would not have been convicted.  With regard to his other claim, that trial counsel was ineffective for failing to investigate his alibi witness, Asia McClain, the post conviction court found that trial counsel erred in failing to investigate, but that mistake did not likely alter the outcome of the trial.  You can find a more detailed discussion of the post conviction court’s opinion here.  An explanation of the pleadings leading up to these briefs can be found here.

These are the issues before the Court of Special Appeals:

  1. Should the post conviction court have considered the cell phone evidence issue at all?
  2. If the cell phone issue was properly before the court, did the post conviction court decide the issue correctly?
  3. Did the post conviction court err in denying relief on the Asia McClaine alibi investigation issue?
  4. Did the post conviction court err in denying relief on the cumulative claim?

There is A LOT of interesting stuff to unpack in these briefs.  One of the more interesting issues to me is whether Syed was precluded from raising the cell phone issue because he did not raise it in the initial post conviction proceeding.  I think that will be the critical factor on this issue and it boils down to whether the cell phone issue is an amendment to the initial post conviction, which was not finally litigated or whether the reopen was a separate proceeding barring post conviction counsel from raising an issue he could have raised previously.  This post is going to focus on issue 2 and the State’s misplaced reliance on Maryland v. Kulbicki, 136 S. Ct. 2 (2015).  

Guilty Plea Problem

Shrinking Avenues for Relief for Maryland Defendants Who Plead Guilty

95% of felony convictions in the United States are obtained through guilty pleas according to a campaign by the Innocence Project and Innocence Network that you can read more about here.  22 states and the District of Columbia expressly permit those who have entered guilty pleas to seek DNA testing to prove their innocence.  Maryland is not among them.  In two recent cases, Yonga v. State, 446 Md. 183 (2016) and Jamison v. State, 450 Md. 387 (2016), the Maryland Court of Appeals explicitly held that defendants who have pleaded guilty may not challenge their convictions through a Petition for Writ of Actual Innocence or a Petition for DNA Testing under the Post Conviction Procedure Act.

Innocent people plead guilty for a number of reasons.  Anyone who is familiar with the criminal justice system knows that to be true.  The Alford plea exists because courts recognize and acknowledge that fact as well.  An Alford plea is a guilty plea that permits a defendant to plead guilty to a charge without admitting guilt, but instead acknowledging that the defendant believes that the State has sufficient evidence to gain a conviction following a jury trial.  In other words, it permits a defendant to say, “I’m not admitting I did this crime, but I think the State has enough evidence that a jury would probably convict me.”  It takes its name from the Supreme Court case, North Carolina v. Alford, 400 US 25 (1970).  It is a defendant’s weighing the risks and benefits of going to trial and determining that a guilty plea is the preferable choice, even if the defendant maintains his innocence.  My very unscientific Google search indicates that Alford pleas are permitted in every state, but Indiana, Michigan, and New Jersey.  In Maryland, entering an Alford plea, as opposed to a typical  guilty plea in which a defendant admits guilt, does not convey any additional rights.  It is treated, in the eyes of the law, exactly the same a standard guilty plea.

Despite the fact that innocent defendants do, in fact, plead guilty, the Maryland Court of Appeals decisions in Yonga and Jamison closed the door on two potential avenues of collateral relief for those who have pleaded guilty- Petitions for Writ of Actual Innocence and Post Conviction DNA testing.  Thus, currently, a defendant who entered a guilty plea may only file an Application for Leave to Appeal (within 30 days of his sentence) or a post conviction in which he challenges the knowing, intelligent, voluntary nature of his plea.  Under the current law of Maryland, there is no vehicle by which a defendant may directly assert his actual innocence.

The Petition for Writ of Actual Innocence came into existence in Maryland in 2009.  It requires that a defendant assert that newly discovered evidence, that could not be discovered in time to move for a new trial, creates a substantial possibility that the result would be different.  Newly discovered evidence does not mean newly known to the defendant. i.e., some exculpatory information that existed at the time of the trial that the defendant did not know about, the information could not have been know at the time of the trial.  Classic examples include forensic evidence such as hair analysis, bite mark analysis, arson science, or comparative bullet lead analysis, that was believed to be accurate at the time of trial, but has since been debunked as “junk science.”  However, having some now disproven scientific evidence in your trial is not enough, in and of itself, to get you a new trial under this proceeding.  There has to be a “substantial possibility” that if that new evidence were known at the time of the trial, that you would not have been found guilty.  So it also requires an assessment of how significant the new information is in the context of all the evidence against you.  For example, was the bite mark evidence the primary evidence of your guilt, or were there other, credible pieces of evidence against you such that you were likely to be convicted even without the bite mark evidence.  The assessment with the DNA evidence in a DNA post conviction is very similar.

The problem, as the Court of Appeals sees it, with applying these standards to a guilty plea is that there is no trial context in which to weigh the new evidence.  Yonga involved a recanting victim.  The way the statutes are written, the “result” that the petitioner must prove would be different is the jury’s guilty verdict– if the new information were known at the time, would a jury convict or is there a substantial possibility that they would they acquit or even hang?  In the context of a guilty plea, the “result” is the defendant’s entering a guilty plea.  Thus the analysis becomes more subjective.  A defendant who pleaded guilty will assert, I was told that the State had the victim’s statement against me and the victim was willing to testify against me.  If the victim were willing to admit that there statement was false, I would not have chosen to enter a guilty plea.  Whereas, with a trial record, the court can assess all of the evidence against the Petitioner and determine the significance of the new evidence in the context of all of the State’s evidence.  Does the conviction hold together or does it unravel?  Of course, this too is a subjective analysis, but it certainly feels more objective.

The legislature needs to respond with legislation that provides an avenue of recourse for those who are innocent and have pleaded guilty.  A system which permits Alford pleas, but turns a blind eye to the innocent who finally have the wherewithal to challenge their convictions is unethical, inhumane, and unjust.

Appealing Your Conviction

Direct Appeal in the Court of Special Appeals

If you were convicted following a trial in a circuit court in Maryland, you have a direct right of appeal.  That means that the next highest court above the trial court, the Maryland Court of Special Appeals, must hear your case if you file your appeal within your filing deadline.  You have thirty days from the date of your sentence to note your appeal.  What that means is that you have thirty days from the date of your sentence to file a document stating that you wish to appeal with the clerk’s office of the court where your trial took place.  No matter where your trial took place, your appeal will be heard by the Court of Special Appeals in Annapolis.  After you note your appeal, you (or your attorney) will receive a briefing order from the Court of Special Appeals.  This document tells you when the brief of the appellant is due, when the State’s brief is due, and the date for oral argument.  On appeal, you are arguing that the trial court made a mistake.  For example, if your attorney requested a particular jury instruction and the court declined to give that instruction and your attorney objected, then that is one issue that you may raise on appeal.  Another example of a type of issue that may be raised on appeal is if your attorney objected to a particular piece of evidence coming in and the court overruled that objection and admitted the evidence.  The Court of Special Appeals reviews the record of the trial, the transcript and exhibits that were admitted.  If your lawyer failed to object, then the issue may be considered waived unless the Court of Special Appeals finds plain error, a finding the court rarely makes.  So you are usually limited to issues that court considers “preserved,” i.e., when your attorney raised an objection and the court overruled it or the State objected and the court sustained that objection.  Once you are in the appellate stage of your case, the State is represented by the Office of the Attorney General and not the particular State’s Attorney’s Office that prosecuted your case.  Oral arguments take place before a panel of three judges from the Court of Special Appeals.  Your attorney will not know which judges will hear your case until the morning of oral arguments.  You will not be transported from the Department of Corrections to oral arguments, but arguments are open to the public and your family may attend.  There is no witness testimony.  Your attorney and the assigned Assistant Attorney General will have an opportunity to present to the judges for about twenty minutes.  A written decision is issued after the hearing, typically months later, affirming or reversing the conviction.

Motion to Correct Illegal Sentence

Under Maryland Rule 4-345(a) an illegal sentence may be corrected at any time. You file a Motion to Correct Illegal Sentence in the court where your trial or plea took place.  It is typically ruled on by the judge who heard your case or the judge who inherits your sentencing judge’s docket.  You are not guaranteed a hearing.  The court may deny the Motion without ever granting a hearing.  However, if the court denies your motion (with or without a hearing), you have a direct right of appeal with the Court of Special Appeals.  In order for a sentence to be considered “illegal” under this rule, the illegality must be in the sentence itself.  The concept is both simple and complex and there have been many, many cases on what actually qualifies as an illegal sentence.  Some examples of illegal sentences that may be corrected under this rule include: a sentence that exceeds the statutory maximum for a particular crime, a sentence in excess of a binding plea agreement, a sentence for a crime for which a defendant was not indicted, a sentence below a binding plea agreement, an illegal upward increase in sentence, or a mandatory sentence as a second time offender without serving the requisite previous period of incarceration.  Because there is a special exception carved out in the law, an illegal sentence is not subject to waiver principles and may be raised at any time.  If the court denies your Motion to Correct Illegal Sentence, you have thirty days to note your appeal with the Court of Special Appeals.  You must then file appellate briefs and oral argument will take place before the Court of Special Appeals.

Brendan Dassey Not Home in Time for Thanksgiving [UPDATE]

UPDATE: A 7th Circuit panel of  three judges granted the State’s emergency motion to block Brendan Dassey’s release.  The order indicates that Mr. Dassey will remain incarcerated pending the outcome of the appeal.  I can’t imagine what Mr. Dassey and his family must feel like right now.

Today the Court Ordered Brendan Dassey released no later than 8 p.m. Friday, November 18, 2016.  See the Court’s Order below.  You can also read the Court’s initial order granting release below.  The Court denied the prosecution’s motion to stay, ruling:

In the motion to stay the respondent largely reargues the same points already considered and rejected by the court in deciding Dassey’s motion for release. The court finds that reconsideration of these arguments yields the same conclusion. The respondent’s motion to stay is denied.

It looks like Mr. Dassey will be enjoying his first Thanksgiving with his family after over a decade of incarceration.  Congratulations to Mr. Dassey and to his very capable legal team!



What’s Next for Adnan Syed? [UPDATE]

What's been filed and what's coming

There has been much paper pushed back and forth as of late in the battle to secure Adnan Syed a new trial.  In this post I’m going to walk you through what has been filed and what to expect next.  Without requiring you to read all the way to the end to learn the bottom line- though I’d love it if you would- I think we can expect one more filing from the State.  If you want to view all of the key documents, Undisclosed Wiki is  a great resource.

Rolling Stone Covers Latest Developments in Adnan Syed

I recently had the pleasure of speaking with journalist Amelia McDonell-Perry about the Adnan Syed case.  Here is her coverage in Rolling Stone on the latest developments in the case.


What’s Next for Adnan Syed

Post Conviction Review Is More of a Marathon Than A Sprint

The Post Conviction Court vacated Adnan Syed’s sentence and conviction on June 30, 2016.  You can read more about the Court’s ruling here.  So what happens next?