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.

June 30, 2016 Judge Welch grants post conviction relief. The post conviction court found that Gutierrez was ineffective for failing to challenge the reliability of the State’s cell tower location evidence.

The State had 30 days to file an Application for Leave to Appeal with the Court of Special Appeals to challenge the post conviction court’s ruling.  The 30th day fell on a Saturday, July 30th, so the State’s deadline was the following business day, August 1, 2016.

July 22, 2016 The State files Notice of Intent to File Application for Leave to Appeal and Request for Stay Order Pending Post Conviction Relief.  In this document, the State asks the post conviction court to “press pause” on the relief just granted pending the outcome of the State’s challenge in the appellate court.  What this means in practical terms (if granted) is that Adnan is not eligible for bail; he remains in the custody of the Maryland Department of Corrections (as opposed to local custody in Baltimore where he would be held pretrial); and he doesn’t get his new trial until the Court of Special Appeals decides the issues before it.  You can read more about the different actions the Court of Special Appeals could take regarding the State’s Application for Leave to Appeal here.

August 1, 2016 The State files its Application for Leave to Appeal.  In its Application the State argues that the post conviction court erred in granting relief based on Gutierrez’s failure to challenge the reliability of the State’s cell tower location evidence.  In this same pleading, the State makes a bizarre request that the Court of Special Appeals send the case back to the post conviction court in order to take additional evidence in the event that Adnan files a conditional cross application for leave to appeal challenging the post conviction court’s denial of relief on the alibi claim.  This was an odd request for a couple of procedural reasons.  First, it was untimely, i.e., it was premature, Adnan had not filed anything yet.  Second, the State provided no reason as to why it did not call these witnesses previously.  “New to Me” is not a sufficient reason to challenge the finality of a ruling.  That’s why new evidence must be tied to concepts such as ineffective assistance of counsel, prosecutorial misconduct, or evolution in scientific testing.  Otherwise verdicts would never be final. Trial courts would be impossibly burdened and backlogged.  Appellate courts would never decide issues because trial courts verdicts would never be final.

August 2, 2016 Judge Welch grants the State’s request and stays the post conviction relief.  The court’s decision to stay (i.e. pause) the relief it just granted is not unusual.

August 11, 2016 Adnan files his Conditional Cross Application for Leave to Appeal.  It’s called “Conditional” because Adnan is asking the Court of Special Appeals to grant his Application for Leave to Appeal only if the Court grants the State’s Application for Leave to Appeal.  If the Court denies the State’s Application, then it will not rule on Adnan’s Application.  In other words, if the Court of Special Appeals denies the State’s Application, Adnan gets his new trial based on the post conviction court’s ruling.

In his Application, Adnan argues that the post conviction court was wrong in ruling that there was no prejudice resulting from Gutierrez’s failure to call the alibi witness, Asia McClain.  The post conviction court essentially ruled that Gutierrez made a mistake by not investigating and calling McClain to testify, but that the mistake was not so serious as to change the outcome of the case.  Adnan also argues in his Application that the post conviction court should have considered prejudice cumulatively, meaning the sum is greater than the parts.  One error in isolation may not be significant enough to find prejudice, but when the errors are considered collectively or cumulatively, the prejudice becomes apparent.

Under Maryland Rule 8-204(d), the State has 15 days to file a response to the Conditional Cross Application, but they didn’t do that.  Instead they filed something else and sort of responded in that.

August 22, 2016 The State files a Conditional Application for Limited Remand.  In this document the State asks the Court of Special Appeals to send the case back down to the post conviction court so that the post conviction court can consider the affidavits and, potentially, the testimony, of twin sisters who are former classmates of Asia McClain.  These new witnesses claim that McClain fabricated the alibi story.  The Court of Special Appeals can only decide the case based on the “record” i.e., what was presented to the post conviction court.  The Court of Special Appeals cannot hear new evidence.  Slow clap for this Hail Mary move State.  Even the State acknowledges the unprecedented nature of its request in the pleading itself:

At the same time, the State does not seek to rewrite the procedural rules that govern post conviction petitions and ultimately defers to this Court on whether a limited remand would aid appellate review by clarifying and amplifying the record.

(State’s Conditional Application for Limited Remand at 16).  In this pleading the State asks the Court for permission to file a reply to Adnan’s forthcoming response to the State’s initial Application for Leave to Appeal within 15 days of the filing of the response.  The State says it wants to do this to avoid “serial pleadings” (pun intended? I’m not kidding.  That is the actual term the State used at footnote 13).  Presumably, the State will attempt to shoehorn a response to Adnan’s Conditional Cross Application for Leave to Appeal in its reply.

September 15, 2016 Adnan files his response to the State’s Application for Leave to Appeal and, separately, Response to State’s Conditional Application for Leave to Appeal.  In this document, Adnan urges the Court of Special Appeals to deny the State’s Application for Leave to Appeal, to deny the State’s Conditional Application for Limited Remand, and to give Adnan the new trial ordered by Judge Welch.

September 16, 2016  The National Association for Criminal Defense Lawyers (NACDL) and the Maryland Criminal Defense Attorneys Association (MCDAA) file a Brief of Amici Curiae urging the Court to promptly deny the State’s Application for Leave to Appeal.  Amicus briefs are not uncommon in appellate practice.  The “friends of the court” briefs are often filed by organizations with an interest in the precedent that may be set by a particular case.  It is highly unusual to see one filed in an Application for Leave to Appeal scenario.  This is another example of how the public interest has influenced the path of this case.

September 30, 2016 If the Court permits it, the State will file a reply by this date.  So I would expect that we haven’t yet heard the final word from the State.  Filing a reply brief is not unusual in appellate practice.  When I represent a client on direct appeal, I will file the brief of appellant, the State will respond, and I will typically file a reply brief.  Again, this practice is a bit unusual in an Application for Leave to Appeal scenario, but this case, in terms of the traction it has gotten in the courts and the  minds of the public, is nothing, if not unusual.

Post Conviction and Appellate Criminal Defense Attorney practicing throughout Maryland and DC, business owner, mother of two. Since establishing the Law Offices of Erica J. Suter, LLC in 2011, the life sentences of ten of my clients have been modified or vacated. I have also obtained relief for clients who were not serving life. I try to treat my clients the way that I would want to be treated if I were sitting on the other side of the table, with dignity, respect, and honesty. I love teaching and will share what I've learned with anyone who is interested. I have been selected to the National Asian Pacific American Bar Association's Best Lawyers Under 40, as a Super Lawyer Rising Star (Washington, DC and Maryland), for membership in the National Trial Lawyers Top 100 Lawyers, and as a Maryland Top 40 Under 40 Criminal Defense Lawyer. I earned my JD from Georgetown University, my MA from the University of Chicago, and my BA from Bates College. http://www.ericasuterlaw.com Follow me on twitter @suterlaw email me at ejsuter@ericasuterlaw.com

Please note: I reserve the right to delete comments that are offensive or off-topic.

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3 thoughts on “What’s Next for Adnan Syed? [UPDATE]

  1. Hey Erica. So glad you found the wiki helpful. And I’m burning with extra questions! Have you come across many MD cases where a retrial is granted and the State doesn’t appeal to the retrial decision? Have I understood correctly that normally a State appeal is only ever based on a matter of law rather than new “facts”, as were (according to Steve Klepper) presented in both the State’s ALA and their Remand request. Is the rule about “The Court of Special Appeals cannot hear new evidence” a literal one, does it mean only verbal presentations (such as new testimony from the female siblings or JA), or does it cover the affadavits, emails and other written evidence attached to these documents. I think that when CoSA asked the State to respond to Adnan’s original 2014 ALA (after 8 months of waiting!) they asked for the State to provide any evidence about the plea deal status.

    Also, I’ve never been quite clear why the case was passed up from the Baltimore City SAO to the MD Atty General’s office. If the case does now progress to a retrial at what point, if any, during the pre-re-trial process would the MD Atty General’s office hand the case over to the Baltimore City St Atty Office.

    • Lots of good questions. Thanks. If a Petitioner wins a new trial through post conviction (a rare occurrence in and of itself), the State will usually file an Application for Leave to Appeal. Any appeal is confined to the record, whether it’s a direct appeal filed by a defendant following a conviction at trial or an Application for Leave to Appeal filed by the State or Defense following a post conviction. What that means is that the appellate court will base its decision on the record (i.e., transcripts of proceedings, pleadings, exhibits admitted into evidence in the court below) and nothing else. Anything information that was not presented to the court is considered “beyond the record” or “outside the record” and the appellate court cannot consider it. This is a fundamental principle of appellate procedure that is not unique to Maryland or this stage of the process. The appellate court’s job is to determine if the judge in the court below made a mistake given the information that was presented to the court at the time. If an argument was not raised below, the appellate court cannot hear the issue. If the evidence was not presented below, the appellate cannot consider it. That is why the State is asking for the case to be sent back down rather than asking the appellate court to decide the issue against Adnan based on the affidavits. New facts have no place in appellate proceedings. If I didn’t answer your question, let me know and I’ll try and do better.
      As far as the State’s Attorney’s Office and the Office of the Attorney General, in Maryland, all appeals are handled by the Office of the Attorney General. Matters in the circuit courts (trial level courts in Maryland) are handled by the local State’s Attorney’s Office. In retrial, the case would go back to the State’s Attorney’s Office.

      • Thank you. The processes of appellate law are very “technical” (though not “boring” to me). But the intricacies can be confusing.

        I understood the “evidence and legal arguments that are on the record” part already, but hadn’t picked up that even Asia’s affadavit wasn’t something CoSA could “consider”, in the sense of write their Opinion with knowing reference to it. Except that they obviously did consider (without “”) it, because they found it, and the rest, worth asking the BCCC to investigate for them. (I think I may be the muppet songster)

        How does CoSA asking the State to supply evidence re plea deals (in the Sept 2014 Order) fit in. Weren’t they were asking for something they wouldn’t have actually been able to consider?!? https://undisclosed.wikispaces.com/file/view/20140910_ALA_order_for_Atty_Gen_to_respond_MDG_CoSA.pdf/572073949/20140910_ALA_order_for_Atty_Gen_to_respond_MDG_CoSA.pdf

        And thanks for your discussion of deadlines on Twitter – I’m not sure if I followed it right though. (Would it be too much to ask you to spell it out again here?)

        I think the situation is that everything gets a 15 day hard deadline for response (from date of the previous thing), except the ALA itself which had a 30 day deadline from the Judge’s Order? But if that is right, now I have yet another question! How come the State got to respond to Adnan’s 2014 ALA so late, it was just 13 days short of a year. And even then they needed a special kick up the jacksie from the CoSA Chief Judge at 9 months, he gave them a generous nearly 2 months, and they missed that. Such a lot of leeway. Does the State get special dispensation to ignore deadlines because, er, because they’re the State?