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.

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.

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?

Post Conviction Relief Granted for Adnan Syed

The Key Takeaways From The Opinion

On June 30, 2016, the Circuit Court for Baltimore City granted relief in Adnan Syed v. State. You can read the Court’s 59 page Memorandum Opinion and Order at the end of this post.  I’m going to attempt to bottom line the key points in the Court’s opinion.

There were three issues before the Court:

  1.  Did Mr. Syed’s trial counsel render ineffective assistance in failing to contact Asia McClain as a potential alibi witness?
  2.  Did the State fail to turn over documents to defense as required by law?
  3.  Did trial counsel render ineffective assistance in failing to challenge the reliability of the State’s cell tower location evidence

The Court denied relief on the first two claims, but granted relief as to the third claim.  You only need to win on one issue to win a new trial.  Mr. Syed did not need to will on all of the claims in order to ultimately prevail.

Did Mr. Syed’s trial counsel render ineffective assistance in failing to contact Asia McClain as a potential alibi witness?

Improper Closing Argument [UPDATE]

State ordered to respond to the Application for Leave to Appeal the Denial of Post Conviction Relief

UPDATE: On November 7, 2016, the Court of Special Appeals GRANTED the Application for Leave to Appeal the Denial of Post Conviction Relief in my client’s case!  I am so thrilled to have the opportunity to continue to fight for my client.  The Court’s Order is below.  The granting of an Application for Leave to Appeal is rare.  According to C. Justin Brown, between 2010 and 2014 the Court of Special Appeals granted just 1.22% of all of the Applications filed.

Recently, the Court of Special Appeals ordered the State to respond to the Application for Leave to Appeal the Denial of Post Conviction Relief in one of my cases.  You can read more about ALA’s in general, here.   I’ve posted the Court’s order and my Application for Leave to Appeal below.  The Court’s order is the first step toward getting the ALA granted.  After the State responds, the Court could set the matter in for full briefing and oral argument, it could deny the ALA, or it could grant the ALA based on the pleadings alone.

Ineffective Assistance of Counsel Part 3:

How much proof and other post conviction details

Most everyone has heard of the standard of proof in a criminal prosecution, “beyond a reasonable doubt.”  It is the highest standard of proof in our legal system.  It was the standard of proof that applied during Adnan Syed’s trial.  The State was tasked with persuading the jury that Mr. Syed was guilty, beyond a reasonable doubt and Mr. Syed was presumed innocent until the State satisfied its burden of proof.

Ineffective Assistance of Counsel Part 2:


So let’s talk about prejudice and post conviction.  Yesterday’s post discussed deficient performance, a serious mistake, the first prong of Strickland.  The second part of the test involves “prejudice,”  and we’re not talking about the kind meant by #Oscarssowhite.  What does the case law say?

Ineffective Assistance of Counsel:

Trial Strategy vs. Screw Up

I recently offered to try and answer questions on twitter regarding the post conviction proceedings in Adnan Syed’s case. I thought it might be helpful to answer some of the questions on my blog and provide some legal background.  I’m going to try and do this in multiple posts to make the information easier to digest and to keep you from glazing over.  As a caveat, I have not been present for the  multi-day hearing and I’m not totally informed on the evidence that has come out in court, but as most of you know- there is some fantastic coverage out there.  I’ve particularly enjoyed the coverage on the Frisky.