Thursday, December 29, 2016

Today, Judge Welch issued a Memorandum Opinion denying Adnan Syed's motion for release pending the State's appeal of Judge Welch's prior opinion granting Adnan a new trial. As I've noted before, this was the likeliest result, but there were also aspects of Judge Welch's opinion that are promising in terms of Adnan's future chances of release pending (re)trial.

I. Judge Welch Rejects the State's Reading of Section 7-109(b)(2)

The defense had argued that Section 7-109(b)(2) of the Maryland Code of Criminal Procedure gave Judge Welch discretion to release Adnan pending the State's appeal. The State had countered that Section 7-109(b)(2) did not give Judge Welch this discretion after he had granted the State's motion for a stay. Judge Welch rejected the State's reading of Section 7-109(b)(2) with some Schoolhouse Rock analysis:

Section 109 of the Criminal Procedure Article governs the appeal of final orders issued under the Uniform Post Conviction Procedure Act. Crim. Proc 7 109(b 2) grants this court the discretion to both stay an order granting post conviction relief and set bail for the Petitioner The plain meaning of the statute and the use of the conjunctive "and" instead of "or" indicates that this court may set bail even after a has been issued.

II. Judge Welch Finds the Nature of the Remand Prevents Him From Granting Release

Despite finding that Section 7-109(b)(2) granted him discretion to release Adnan, Judge Welch found that he was limited by the nature of the remand in this case. Specifically, the Court of Special Appeals of Maryland remanded the case so that Adnan could file a motion to reopen his postconviction proceeding and (1) present evidence related to Asia McClain/ineffective assistance; and (2) present evidence related to any new claims allowed by Judge Welch. That remand order also directed that "after taking any action it deems appropriate, the circuit court shall forthwith re-transmit the record to this Court for further proceedings."

The defense, of course, did successfully raise a new claim before Judge Welch -- the cell tower/ineffective assistance claim - and it was that claim that led to Judge Welch granting Adnan a new trial. According to Judge Welch, though, this was different from a typical postconviction case, in which an order granting a new trial could lead to the circuit court judge granting release. Instead, because the Court of Special Appeals had ordered Judge Welch to re-transmit the record to it after his decision, he had no authority to order Adnan's release.

I think that's a defensible conclusion, but I would also disagree with it. I think that if Judge Welch had granted a new trial on the Asia/ineffective assistance claim, the nature of the remand would have prevented Judge Welch from granting Adnan release. But, because Judge Welch granted a new trial based upon a new claim, a claim upon which the Court of Special Appeals does not need to grant the State leave to appeal, I think that Judge Welch could have granted Adnan relief.

But there's no precedent on this issue, so I'm not sure of my conclusion. That said, it doesn't seem like Judge Welch was sure of his conclusion either.

III. Judge Welch Proceeds to Consider the Release Factors

This lack of certainty is reflected in the fact that Judge Welch, "[i]n an overabundance of caution," proceeds to consider the release factors, in the event that his prior conclusion was wrong. Pursuant to Maryland Rule 4-216, there are nine of them.

1. The nature and circumstances of the offense charged, the nature of the evidence against the defendant, and the potential sentence upon conviction

The first and third of these are easy: Murder is the most serious offense, and Adnan would face a sentence of life +30 if prosecuted and convicted again. This creates a great risk of flight.

In terms of the nature of the evidence against Adnan, Judge Welch concluded that "there still is compelling evidence against Petitioner." Judge Welch, however, followed that sentence with a foonote indicating that what Judge Welch had previously found was the crux of the State's case against Adnan -- the Leakin Park pings -- "was the basis of the circuit court's grant of post-conviction relief and likely would be offered and attacked differently at a new trial."

2. The defendant's prior record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings

This, again, was easy, but in the opposite direction: Judge Welch found that Adnan had no history of flight or failure to appear.

3. The defendant's family ties, employment status and history, financial resources, reputation, character and mental condition, length of residence in the community, and length of residence in this State

Again, this was an easy win for Adnan: "The circuit court finds that Petitioner has strong family ties, and his length of residence in the community and this State is consistent with his tender years at the time of his arrest and conviction."

4. Any recommendation of an agency that conducts pretrial release investigations

According to Judge Welch, "[t]he circuit court sought, sua sponte,a report Pretrial Services, but one was not provided." Bad move by Pretrial Services. Without any recommendation, this factor didn't favor either side.

5. Any recommendation of the State's Attorney

Clearly, the State's Attorney opposed Adnan's release, so this favored continued detention.

6. Any information presented by the defendant or defendant's attorney

Justin had presented evidence of Vicki Wash's arguments at second bail hearing back in 1999. I'll let Judge Welch's opinion speak for itself:

The circuit court finds that Petitioner’s March 31, 1999 bail hearing was fundamentally flawed by the State’ argument which was xenophobic and a gendered cultural stereotype of Pakistani men. That such an argument was made without any basis in fact, and potentially considered by the judicial officer in determining flight risk is egregious that it negates the circuit court giving that bail decision any weight in this matter though there may have been other compelling evidence as to risk of flight.

7. The danger of the defendant to the alleged victim another person or the community

Another win for Adnan. According to Judge Welch, the "Petitioner has met his burden in establishing that he poses no danger to the victim, since the victim is deceased, and believes that Petitioner poses no danger to any another person or the community."

8. The danger of the defendant to himself or herself

Yet another easy win for Adnan: "The circuit finds there was no evidence indicating whether Petitioner poses a danger to himself."

9. Any other factor bearing on the risk of a willful failure to appear and the safety of the alleged victim another person or the community including all prior convictions and any prior adjudications of delinquency that occurred within three years of the date the defendant is charged as an adult

Judge Welch's analysis of the ninth factor largely replicated his analysis of the first factor, with both favoring continued detention: "The circuit court finds that Petitioner poses a risk of failing to appear at a new trial based upon the potential of being convicted a second time and the likelihood of a life sentence being re-imposed."

10. Bigley Warden Md. Corr. for Women, 16 Md App. 1 (Md. 1972)

Although not a "factor" listed in Maryland Rule 4-216, the opinion of the Court of Appeals of Maryland in Bigley was something else that Judge Welch considered. According to Bigley, after a defendant has been convicted, "the courts should proceed with caution and grant bail pending appeal only where the peculiar circumstances of the case render it proper."

IV. Conclusion

Therefore, despite most of the factors favoring release, Judge Welch found that he would not have granted Adnan release even if he had the authority to do so because (1) there is still some compelling evidence of guilt, despite potential problems with the cell tower evidence; (2) Adnan is charged with murder and related crimes; (3) Adnan could be sentenced to life +30 if convicted again; and (4) he should act with an abundance of caution because Adnan was convicted, even though Judge Welch has reversed that conviction.

Again, I would disagree with Judge Welch's balancing, but his conclusion is defensible under the applicable factors. I would also note, though, that Judge Welch's decision makes it seem likely that Adnan would be granted release if (1) the Court of Special Appeals denies the State leave to appeal; or (2) Judge Welch's opinion granting a new trial is upheld on appeal.

And that takes us to the current status of Adnan's case. The State filed its Application for Leave to Appeal on August 1st. It is now December 29th, almost four five months later. I think it's exceedingly likely that the Court of Special Appeals will either grant or deny the State leave to appeal by April 1st, or eight months after the State's initial filing. I also think that there's a good chance that decision will come by the end of February. But we'll just have to wait and see.

-CM

https://lawprofessors.typepad.com/evidenceprof/2016/12/today-judge-welch-issued-a-memorandum-opiniondenying-adnan-syeds-motion-for-release-pending-the-states-appeal-of-judge-welch.html