Friday, July 1, 2016

A new trial in three steps:

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Step One: May 6, 2015: The State files its Brief of Appellee. At trial, the State had claimed that the 2:36 P.M. call on Adnan's call log was Adnan calling Jay from Best Buy after having killed Hae Min Lee. On appeal, the defense had thus claimed that Asia McClain, who saw Adnan at the library until 2:40 P.M., provided a complete alibi. In its brief, the State responded with the now infamous footnote 8, which states in pertinent part:

This argument was completely unnecessary. The State could have simply deemphasized the importance of the 2:36 P.M. timeline or claimed that Asia's testimony wouldn't have been enough to change the jury's verdict. Instead, the State decided to advance a new argument on appeal, an argument that piqued the interest of defense counsel.

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Step 2: August 24, 2015: The defense files a Supplement to Motion to Re-Open Post-Conviction Proceedings on behalf of Adnan Syed. The Supplement asks the court to consider evidence such as the AT&T Cover Sheet to show that, inter alia, Gutierezz was ineffective in failing to challenge the cell tower pings. Defense counsel places heavy reliance on footnote 8 in arguing that the State opened the door for such a Supplement:

Adnan has now doubled his chances at a new trial. Whereas previously, he could only win based upon Gutierrez's failure to contact Asia McClain, he can now have his conviction vacated based upon her failure to challenge the cell tower evidence.

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Step 3: June 30, 2016: Judge Welch issues his opinion. He denies Adnan relief based on Gutierrez's failure to contact Asia McClain, deeming this failure unreasonable but finding that it wouldn't have changed the outcome at trial.* Conversely, Judge Welch grants Adnan a new trial based upon Gutierrez's failure to challenge the cell tower evidence.

So, what about the State's footnote 8? Judge Welch addressed the State's argument in his own footnote:

Some people have noted that yesterday's ruling was not about actual innocence. Fair enough. But this is about as close as you can get.

Keep in mind that the State prosecuted Adnan for murder based upon a theory of "kidnapping by fraud." The heart of that theory was that Adnan gave Jay his car and cell phone so that Adnan could call Jay on that cell phone after he killed Hae. Judge Welch found that Asia credibly testified to seeing Adnan at the library until 2:40 P.M. and concluded that the State's attacks on her were based upon "unwarranted speculations." So, that means the 2:36 P.M. call doesn't work as the "come and get me" call. Adnan was at the library, talking with Asia.

Then, as Judge Welch noted in his footnote, for a laundry list of reasons, the 3:15 P.M. call doesn't work as the "come and get me" call. In other words, there wasn't a "come and get me" call to Adnan's cell phone under any narrative that makes sense. In other words, judge Welch is saying that the State doesn't have a case.

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*As I noted yesterday, I think there's a good chance Adnan wins on this issue on cross-appeal.

-CM

https://lawprofessors.typepad.com/evidenceprof/2016/07/a-new-trial-in-three-steps-______________________-step-one-may-6-2015the-state-files-its-brief-of-appelleeat-trial-th.html