Thursday, March 30, 2017

In the Adnan Syed case, the State technically has three ways to win its appeal of Judge Welch's ineffective assistance/cell tower ruling: (1) establish that the ineffective assistance/cell tower issue was beyond the scope of the remand order; (2) establish that Adnan has waived this issue; or (3) establish that Adnan did not receive ineffective assistance of counsel in connection with the cell tower evidence.* I'm going to reserve my judgment on which side will win most of the issues in this appeal until after the State submits its final brief or maybe even until after oral arguments. But, at this point, I feel confident predicting that the State won't win on scope as a standalone issue.

This conclusion isn't even really based that much on yesterday's Brief of Appellee/Cross-Appellant, which makes several solid arguments on the scope issue, including:

-The Court of Special Appeals "could have provided 'directions' that the remand focus solely on the McClain affidavit;" -The Court of Special Appeals "twice instructed the Circuit Court to conduct any proceedings that it deemed appropriate;" -The State selectively cited language from the remand order which seemed to indicate that the defense could only supplement the record on the Asia/ineffective assistance issue, leaving out language that indicated the defense could do "other things;" -"[T]he 'interests of justice' standard for reopening post-conviction proceedings 'has been interpreted to include a wide array of possibilities.'" -The cell tower supplement was not "part of an impermissible, second post-conviction petition."

I could go into more detail on all of these (and other) arguments, but I don't think it's necessary. Why? I can't imagine the Court of Special Appeals finding (1) Adnan has not waived the ineffective assistance/cell tower claim; and (2) Adnan received ineffective assistance of counsel with regard to the cell tower evidence; but (3) Judge Welch exceeded the scope of the remand order by hearing the issue.

As the Brief of Appellee/Cross-Appellant notes, motions to reopen are governed by Maryland Rule of Criminal Procedure 7-104, which (1) does not contain a limitation on the number of motions to reopen; and (2) does not contain a statute of limitations. So, imagine that Adnan wins on the waiver and ineffective assistance issues but "loses" on the scope issue. Would it make sense for the Court of Special Appeals to reverse Judge Welch's order granting a new trial? No.

It wouldn't make sense because it would create a "Groundhog Day" scenario. The Court of Special Appeals would be telling Adnan: You having a winning argument, and you haven't waived it, but Judge Welch wasn't supposed to consider it because our remand order was limited in scope. But now, you can file a new motion to reopen, and you can have a new PCR hearing, and the result of that hearing will likely be the same. And then, the State can appeal again, and then, we'll hear that appeal. See you in a couple years.

This makes no sense, given considerations of judicial economy and fairness. And therefore, it's not a result that we'll see. Now, I could see the Court of Special Appeals finding that Adnan waived the cell tower claim or that he has a losing argument on the merits and also finding that Judge Welch exceeded the scope of the remand order. But this would require the Court to find for the State on one or both of the other cell tower issues. I don't see any way that the Court rules for Adnan on waiver and the merits but against him on scope.

___________________

*The are two ways that the State could win on this issue: (1) by proving that trial counsel's performance was reasonable; or (2) by proving lack of prejudice.

-CM

https://lawprofessors.typepad.com/evidenceprof/2017/03/in-the-adnan-syed-case-the-state-technically-has-three-ways-to-win-its-appeal-of-judge-welchs-ineffective-assistancecell-to.html