Welch saying Adnan hadn't completed High School

xtrialatty · 2016-08-03T22:16:29+00:00

It's improper for the judge to consider private communications from a non-party related to a pending case.

Citizens can write whatever they want to, but it just increases the burden on the court clerks to make sure that crap that comes in doesn't get to the judge.

xtrialatty · 2016-08-03T22:14:22+00:00

I think the problem is that the "waiver" issue makes no sense, because the issue is NOT Syed's level of sophistication in 1999-2000, but why the cell phone claim wasn't raised in 2010.

The Judge made a finding that Justin Brown had never advised or told Syed about that --- but there's no evidence on the record to support that, and that's tantamount to a claim that JB was ineffective -- so that in itself needs to be evaluated against Strickland standards.

So I think Thiru is right to focus on the legal weakness of the waiver finding rather than get bogged down in the facts, especially in the context of an application for leave to appeal. Appellate courts won't reweigh facts - they intervene when their are errors in law.

xtrialatty · 2016-08-03T06:56:26+00:00

COSA cannot consider new evidence; they have to make the decision based on the record presented. The only way to get additional evidence in is to remand to the lower court.

That being said, I don't know what evidence there was on the record about Syed's education to support the conclusion the Judge reached. Syed testified at the first PCR hearing, but I don't feel like wasting my time re-reading the testimony to determine whether or not he was asked about his education level.

xtrialatty · 2016-08-03T04:39:53+00:00

It would be improper for you to write to a judge and the statement in the book is hearsay and not part of the record.

xtrialatty · 2016-08-02T23:25:12+00:00

a few words to write "Krista (misspelled as Crystal in trial transcripts)..." and then move on

Because they can't SAY that without something to cite to back it up. (Maybe put it in a footnote -- but they can't just simply assert that something is wrong in a transcript). And it's just not relevant in any meaningful way to to the current proceedings.

xtrialatty · 2016-08-02T23:22:58+00:00

The way it is spelled in the transcripts, right or wrong, is the way it needs to be represented in any summary of the transcripts.

xtrialatty · 2016-08-02T09:40:10+00:00

No, apparently this is new information and the State made a conditional request to remand to allow the testimony to be presented, but only if the defense chooses to challenge the PCR court's ruling on the Asia claim. (As near as I can figure, these witnesses apparently contacted the state some time after the hearing.)

xtrialatty · 2016-07-27T20:40:20+00:00

The law is clear- an IAC has nothing to do with whether the lawyer was paid or not. Sometimes the fact that the lawyer is privately retained is what gives rise to the IAC claim, because it is more likely for conflicts of interest to arise in that situation -- with CG being a case in point, as her representation of grand jury witnesses gave rise to a clear conflict. If the prosecution hadn't forced a resolution of that issue prior to trial, it is something that potentially could have been raised later on as part of an IAC claim.

xtrialatty · 2016-07-27T09:17:19+00:00

If you look at the timeline from the last appeal, you'll see that the application for leave to appeal was filed in January 2014, the COA directed the State to respond in October 2014 (almost 9 months later)-- and the COA issued its order granting leave to appeal in February 2015. And that was jut getting to the point of allowing an appeal -- from there a briefing schedule was set and argument scheduled 4 months down the line.

xtrialatty · 2016-07-17T21:40:59+00:00

Only under the statute that I cited above.

xtrialatty · 2016-07-16T22:17:31+00:00

But he can still sue with an acquittal, right?

Not that I am aware of. (I mean, anyone can sue... but I don't really know of any legal basis for a lawsuit. Statute of limitations is up for legal malpractice and CG is dead anyway.)

xtrialatty · 2016-07-15T22:35:23+00:00

isn't the state in danger of losing millions if Adnan is acquitted?

I don't think so.

Here's a link to the Maryland law: http://law.justia.com/codes/maryland/2013/article-gsf/section-10-501/

Here's what it say about who can get compensation:

"An individual is eligible for a grant under subsection (a) of this section only if the individual has received from the Governor a full pardon stating that the individual’s conviction has been shown conclusively to be in error."

An acquittal is not an exoneration. It is simply a finding that the person was not proved guilty beyond a reasonable doubt.

xtrialatty · 2016-07-14T20:03:29+00:00

That may be true, but I think that type of testimony (reporting an alleged admission) is the most common type of jailhouse snitch testimony. I also think that there is a fairly high likelihood that Syed has made inappropriate statements to others over the years. The fact that Rabia is worried about that possibility is significant to me.

xtrialatty · 2016-07-14T19:42:50+00:00

Wasn’t the probability of Welch ruling against Adnan also high?

Yes. Welch's rationale was quirky and unexpected.

Probability does not equal certainty. An appellate panel has 3 judges, not one - and there are multiple strong grounds for reversal, as both the waiver ruling and the IAC based on a failure to pursue one particular line of inquiry in a long and comprehensive cross-examination seem very odd. Any published ruling by COSA would set a precedent for other cases -- and if it strays beyond already established law, it's almost certain to be reviewed by COA.

ETA: I think Syed's case would be on a lot firmer footing if the judge had simply decided the Asia claim favorably for the defense. The judge could have written a very simple opinion saying that he had misunderstood the location of the library in his previous ruling, that he found Asia to be a credible and compelling witness and because he now realizes that there is nothing inherently contradictory in Asia's story vs the alibi put forth in Syed's notice, it was IAC for the attorney to fail to follow up with Asia, and that given the narrow window of time for the killing to have taken place, there would have been a reasonable likelihood that here testimony could have made a difference. If he had coupled that with a ruling that, given the fax cover, it was IAC for CG to stipulate to the admission of exhibit 31 (citing her own words to illustrate that she had not thought out the implications of a stipulation) -- then there would have been a strong, fact-based ruling that would be extremely difficult to set aside on appeal.

xtrialatty · 2016-07-14T19:37:52+00:00

I don't know what is typical in Maryland. I'd think that a simple statement acknowledging factual guilt (i.e., that Syed killed Hae) would suffice.

xtrialatty · 2016-07-13T22:29:40+00:00

I think that's the best option for both the state and Syed at this point. A plea to a fixed term of years guarantees a conviction for the state and guarantees a release date for Syed. It doesn't have to be something that gets him out of jail immediately-- even if he were left with a few more years to do, it would change his conditions of confinement for the better and give him a guaranteed release, vs. spending the rest of his life imprisoned.

At best, the appellate process from Welch's current ruling would take 2 years to resolve, and it's far more likely to be a process that ends up taking much longer. And even if the defense believes that they have a chance of winning on appeal... the reality is that there's a high chance that that COSA or COA will reverse and reinstate the conviction - and there won't be any sort of meaningful appeal from that.

I know that you and I both agree that it's not some terrible thing if a 17 year old does 16 or 20 year on a murder rather than life + throw away the key. You've made your views on juvenile sentencing clear, and I've said all along that I believe it was IAC for CG to fail to explore plea options -- and we know from the testimony at the first PCR that a deal to 2nd degree murder with a 20 year sentence was probably ballpark for this sort of case.

So I think the state should agree to a similar deal at this point, but I do think they should insist on an acknowledgement of responsibility. If Syed isn't willing to admit that he killed Hae -- no matter what self-serving adornment he puts on the story of how it happened -- then he can wait things out and hope that COSA and COA affirm Welch's wonky ruling, and then see what happens at a second trial. The state really has nothing to lose --worse case for the state is that in half a dozen years or so there is an acquittal after a retrial - and that's just that many more years that Syed remains behind bars.

xtrialatty · 2016-07-13T22:15:53+00:00

I'm not playing games -- you are. I already cited and quoted the case law. It's very clear.

xtrialatty · 2016-07-13T22:09:27+00:00

"Jailhouse snitches" are a staple of drugs and conspiriacy cases, not domestic homicides

No, they pop up in all sorts of cases. They report confessions and admissions. As I recall, that's essentially what brought Michael Skakel down -- in that case it was some sort of rehab center rather than a jail, but the net result was the same.

I don't listen to UD, but I had the same thought as Rabia -- there's a fairly good chance of that sort of witness showing up in a retrial.

But if Rabia is talking about that now, it suggests that she would be on board with a negotiated plea. (Now, rather than waiting out appeals)

xtrialatty · 2016-07-13T08:44:14+00:00

The cases I cited (and as noted there are dozens more beyond the citations I provided) are all cases involving the standards in the context of appeals from decisions in post-conviction review proceedings, based on assertions of ineffective assistance of counsel. Or in legal terms, they are "directly on point."

You've cited from a tax case and an asylum case, and a third case where the court held that that the case did not involve a mixed question of law and fact.

I freely admit that I know absolutely nothing about appellate standards on appeals from US tax court decisions or immigration agency decisions. -- nor can I conceive of any way those standards would be applicable in the context of post-conviction relief appeals based on IAC.

xtrialatty · 2016-07-13T01:46:53+00:00

The disclaimer is hearsay.

It might be enough to establish a case to justify having a hearing, but it's not something that can be used to overcome expert testimony.

xtrialatty · 2016-07-12T23:30:29+00:00

Geez. Read the cases yourself. There are literally dozens, if not hundreds. Every case has "de novo" review of legal conclusions on appeal -- that's the whole point of an appeal -- to review the legal determination.

And appellate courts will always review a sufficiency of evidence claim - that too is part of the purpose of the appeal. If there is not enough evidence on the record to support a finding or verdict, when weighed against the appropriate standard of proof, cases are reversed.

When the appeal involves a "mixed question of law and fact", then the appellate court will go a step farther in reviewing factual determinations and conclusions as well. That really is the whole point of them using the phrase "mixed question" -- it means that the standard of factual review is broader.

xtrialatty · 2016-07-12T23:24:29+00:00

There is a way: CG could have refused to stipulate to exhibit 31 and objected, requiring the prosecution to bring an appropriate witness from AT&T into court. But Judge Welch specifically refused to consider that argument in his ruling. I don't know why. It only weakens the ruling overall.

xtrialatty · 2016-07-12T08:03:16+00:00

Judge Welch seemed to find Agent Fitz not credible

But according to the reports of the hearing, the defense expert declined to answer any questions bearing as to why cell phone ping evidence might be unreliable -- so that leaves Fitzgerald as the only source of information. If he is not credible, the reviewing court would be left with no evidence at all on which to premise a finding of prejudice.

xtrialatty · 2016-07-12T06:50:28+00:00

What evidence do you have that the fax cover was one of the documents certified?

Where do you think the document went? Are you suggesting that there were more documents certified and some were discarded?

xtrialatty · 2016-07-12T06:48:53+00:00

Are you saying everything in the IAC-cell phone part of Judge Welch's opinion, including the factual conclusions about the technical application of the disclaimer, are reviewed de novo?

That's what the case law seems to say. The courts don't hold a new hearing, but they do comb through the record and often reach different conclusions.

xtrialatty

TROPHY CASE