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.