Friday, December 5, 2014

[Timeline updated on February 7, 2015 and additional thoughts added at bottom]

Yesterday, I was contacted by vox.com's Libby Nelson, who wanted to talk with me today about the Serial Podcast and specifically Adnan's chances of winning his current appeal. That got me thinking that I didn't really know the exact legal status of Adnan's current appeal. So, I did some digging, and this post will detail my best guess as to the current status of Adnan's appeal. In turn, my interview on vox.com will deal with the likelihood that Adnan will succeed.

Here's my best guess for a timeline of Adnan's litigation history:

December 1999: First trial begins in Baltimore City Circuit Court.

December 15, 1999: First trial ends in mistrial after juror overhears judge call defense counsel a liar.

January 21, 2000: Second trial begins in Baltimore City Circuit Court.

February 25, 2000: Jury verdict finds Adnan guilty of first-degree murder, kidnapping and robbery.

June 6, 2000: Judge sentences Adnan to life imprisonment for murder, 30 years for kidnapping, and 10 years for robbery.

June 6, 2000: Adnan files a motion for appeal to the Maryland Court of Special Appeals (state intermediate appellate court).

February 27, 2002: Brief of Appellant (Adnan) to Maryland Court of Special Appeals.

April 30, 2002: Brief of Appellee (the State) to Maryland Court of Special Appeals.

March 19, 2003: Court of Special Appeals of Maryland affirms conviction in unpublished opinion (part 1; part 2).

June 20, 2003: Court of Appeals of Maryland (state supreme court) denies Adnan's petition for writ of certiorari (meaning it will not hear his appeal).

May 28, 2010: Adnan files a Petition for Postconviction Relief under Section 7-103 of the Maryland Code of Criminal Procedure with the Baltimore City Circuit Court.

October 25, 2012: The Baltimore City Circuit Court holds a hearing on Adnan's petition.

January 6, 2014: The Baltimore City Circuit Court denies Adnan's petition.

January 27, 2014: Adnan files an Application for Leave to Appeal under Section 7-109 of the Maryland Code of Criminal Procedure with the Court of Special Appeals of Maryland.

September 10, 2014: The Court of Special Appeals orders the State to respond to the portion of Adnan's Application for Leave to Appeal claiming that he received the ineffective assistance of counsel based upon his attorney's failure to inquire into a plea deal.

November 14, 2014: Deadline for the State to respond to Adnan's Application for Leave to Appeal.

January 14, 2015: New deadline for the State to respond after judge grants it an extension. The State files its Response in Opposition to Application for Leave to Appeal.

January 20, 2015: Adnan files a Supplement to Application for Leave to Appeal the Denial of Post-Conviction Relief and Request for Remand based upon a new affidavit by Asia McClain.

January 27, 2015: The State files a Motion to Strike Appellant's Supplement to Application for Leave to Appeal and Request for a Remand.

February 3, 2015: Adnan files a Motion for Leave to File a Supplement to Application to Appeal the Denial of Post-Conviction Relief and a Response to the State's Motion to Strike Appellant's Supplement to Application for Leave to Appeal the Denial of Post-Conviction Relief and Request for Remand.

February 6, 2015: The Court of Special Appeals of Maryland grants Adnan's Application for Leave to Appeal

March 16, 2015: The deadline for the Appellant (Adnan) to file his Appellant's Brief.

April 16, 2015: The deadline for the Appellee (the State) to file its Appellee's Brief.

June 2015: The Court of Special Appeals of Maryland will hold a hearing on Adnan's appeal.

So, what does all this mean? All of the above through 2003 consisted of trial(s) and direct appeal. In Maryland, when a defendant is convicted in circuit court (trial court), he has the mandatory right to appeal to the Court of Special Appeals of Maryland. In this appeal, Adnan claimed three errors: (1) errors related to the prosecution's failure to disclose the details of Jay's plea agreement and the judge's response; (2) the improper admission of Hae's diary; and (3) the improper admission of a letter Hae wrote him. The Court of Special Appeals of Maryland denied Adnan's appeal and affirmed his convictions. At this point, Adnan could and did file a petition for writ of certiorari to the Court of Appeals of Maryland. This was a discretionary appeal, meaning that the Court of Appeals did not have to grant Adnan's petition and hear it. The Court of Appeals denied Adnan's petition, which ended his direct appeal of his convictions.

This takes us to Adnan's current collateral appeal. As noted, Adnan filed a petition for postconviction relief under Section 7-103 of the Maryland Code of Criminal Procedure. This petition claimed that he received the ineffective assistance of counsel. Section 7-103 is part of Maryland's Uniform Postconviction Procedure Act and reads as follows:

One petition for each trial or sentence (a) For each trial or sentence, a person may file only one petition for relief under this title. Time of filing petition (b) Unless extraordinary cause is shown, a petition under this subtitle may not be filed more than 10 years after the sentence was imposed.

So, two points about this: First, Adnan's sentence was imposed on June 6, 2000, meaning that his petition for postconviction relief, filed on May 28, 2010, was just barely within the ten year time limit in Section 7-103(b). Second, as is made clear by Section 7-103(a), this is the only petition for relief that Adnan may file under the Uniform Postconviction Procedure Act (but see below).

As noted, the Baltimore City Circuit Court denied Adnan's petition on January 6, 2014. Adnan responded by using Section 7-109(a) of the Maryland Code of Criminal Procedure, which is also part of Maryland's Uniform Postconviction Procedure Act and reads as follows:

Applications for leave to appeal order (a) Within 30 days after the court passes an order in accordance with this subtitle, a person aggrieved by the order, including the Attorney General and a State's Attorney, may apply to the Court of Special Appeals for leave to appeal the order.

This is a discretionary appeal, meaning that the Court of Special Appeals of Maryland does not have to grant it. Moreover, Adnan's "appeal" on January 27, 2014 is merely an Application for Leave to Appeal (AFLA), not an actual appeal. Thus, the State's response that is due on January 14, 2015 is merely addressing whether Adnan should be granted leave to appeal, not the merits of Adnan's appeal. The court will then decide under Section 8-204 of the Mayland Code of Criminal Procedure whether to grant Adnan leave to appeal. A lot of stories are claiming that the Maryland Court of Special Appeals has granted Adnan a hearing on his appeal in January, but I can find nothing to corroborate this contention. Again, as far as I can tell, the only scheduled date in January is January 14, 2015, when the State must respond to the issue of whether Adnan should be granted leave to appeal.

So, what does the Court of Special Appeals of Maryland consider in deciding whether to grant leave to appeal? According to Criminal Appeals in Maryland: The Defense Perspective:

An AFLA should be treated in the same manner as a Petition for Writ of Certiorari; you should focus on the importance of the issues presented, first, and the likely result, second, to persuade the Court to utilize its discretionary ability to hear the case due to the institutional importance of resolving the issue, and not the acute importance to the appellant.

If the Court of Special Appeals of Maryland gives Adnan leave to appeal and denies his appeal, Adnan can appeal to the Court of Appeals of Maryland. If the Court of Special Appeals of Maryland denies Adnan leave to appeal, he cannot appeal to the Court of Appeals of Maryland. As the Court of Appeals of Maryland noted in Arrington v. State, 983 A.2d 1071, 1094-95 (Md. 2009):

In a traditional post-conviction case, when an inmate's petition for relief under the Maryland Uniform Post Conviction Procedure Act is denied by a circuit court, he or she must file an Application for Leave to Appeal in the Court of Special Appeals....If the Court of Special Appeals summarily denies the Application, we are not empowered to entertain a review of the denial or grant....Only when an Application for Leave to Appeal is granted and the merits reached by the Court of Special Appeals can we entertain the case, and only then after the grant of a petition for certiorari.

This leaves two questions: First, if the Court of Special Appeals of Maryland grants leave to appeal, what issues will it be considering on appeal? Some stories seem to be claiming that the appeal would cover at least two claims: (1) defense counsel didn't contact potential alibi witness Asia McClain; and (2) defense counsel didn't ask the prosecutor about a plea deal despite Adnan's repeated requests (the State agrees that defense counsel never asked about a plea deal). In the tenth episode of the Serial Podcast, however, Sarah Koenig seemed to say that the appeal would only cover the plea deal issue. I have no idea who is correct on this issue.

Second, you may wonder what effect the "one petition" policy of Section 7-103(a) has on the efforts of the Innocence Project at UVA to get DNA testing done on physical evidence recovered from Hae and items found near the burial site in Leakin Park. Let's return to Arrington v. State:

This traditional process was altered in 2001 in cases in which DNA may be involved, however, when the Legislature enacted the DNA Post Conviction Act for the purpose of authorizing persons convicted of manslaughter, murder in any degree, or first or second degree rape or sexual offense to file a petition for postconviction DNA testing of certain evidence under certain circumstances. The DNA Post Conviction Act, as codified in Section 8–201 of the Criminal Procedure Article, gives various incarcerated persons the opportunity to file a petition for DNA testing "[n]otwithstanding any other law governing postconviction relief."

In other words, the "one petition" rule does not preclude a second petition for DNA testing.

[Update, February 7, 2015: Yesterday, the Court of Special Appeals of Maryland granted Adnan's Application for Leave to Appeal. Let's take a look at Maryland Rule 8-204(f), which is the Rule in play. It reads as follows:

(f) Disposition. On review of the application, any response, the record, and any additional information obtained pursuant to section (e) of this Rule, without the submission of briefs or the hearing of argument, the Court shall:

(1) deny the application;

(2) grant the application and affirm the judgment of the lower court;

(3) grant the application and reverse the judgment of the lower court;

(4) grant the application and remand the judgment to the lower court with directions to that court; or

(5) grant the application and order further proceedings in the Court of Special Appeals in accordance with section (g) of this Rule.

Yesterday, the court applied Rule 8-204(f)(5) and ordered further proceedings: the hearing in June where there will be oral arguments but no new evidence. The hearing will address two issues: (1) whether Adnan received the ineffective assistance of counsel based on his attorney's failure to inquire into a plea deal; and (2) whether to remand to the Circuit Court for additional factfinding based on the new affidavit by Asia McClain.

That leaves three possibilities:

First, after the hearing, the court might affirm the judgment of the Circuit Court under Rule 8-204(f)(2) and deny Adnan relief, finding that he did not receive the ineffective assistance of counsel based on his attorney's failure to seek a plea deal. In that case, Adnan could appeal to the Court of Appeals of Maryland (Maryland's Supreme Court).

Second, after the hearing, the court could reverse the judgment of the Circuit Court under Rule 8-204(f)(3) and grant Adnan a new trial, finding that he did receive the ineffective assistance of counsel based on his attorney's failure to seek a plea deal. In that case, the State could appeal to the Court of Appeals of Maryland.

Third, after the hearing, the court could remand the judgment to the Circuit Court with directions under Rule 8-204(f)(4). Those directions would likely be to hold a new factfinding hearing during which Asia could testify and other new evidence could be presented. Based on the new factfinding, the Circuit Court could grant Adnan a new trial if it finds that he received the ineffective assistance of counsel based on his attorney's failure to contact Asia McClain as a possible alibi witness, or it could again deny him relief. In either case, the losing party could appeal to the Court of Special Appeals of Maryland (which would also have to address the plea deal argument) and ultimately the Court of Appeals of Maryland.

Based upon what I wrote in this post, I believe that the court will indeed remand under Rule 8-204(f)(4), and I believe that Adnan will ultimately be granted a new trial by one of the Maryland courts if Asia testifies consistent with seeing Adnan in the library on January 13, 1999. But what if the court doesn't remand and Adnan is denied relief?

Even if this happens, Adnan can still later move to reopen his postconviction proceeding in Circuit Court pursuant to Section 7-104 of the Maryland Code of Criminal Procedure, which states that

The court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.

The basis for reopening the proceeding would be the new affidavit by Asia McClain. Of course, this new affidavit is also the basis for Adnan's Supplement, which asks that the case be remanded to the Circuit Court for additional factfinding. Indeed, one of the arguments in Adnan's Supplement is that the court should remand in the interest of judicial economy so that everything can be done at once rather than a motion to reopen being filed in the event that Adnan is denied relief. I agree with this argument and the other arguments made in Adnan's Supplement. At some point after the June hearing, we'll see whether the Court of Special Appeals feels the same.]

-CM

https://lawprofessors.typepad.com/evidenceprof/2014/12/yesterday-i-was-contacted-by-voxcomslibby-nelson-who-wanted-to-talk-with-me-today-about-theserial-podcastand-specifically.html