**UPDATE: The Court of Special Appeals granted the ALA in Adnan’s case on February 6, 2015. The case was sent back to Judge Welch in Baltimore City Circuit Court for the court to consider Asia’s affidavit and potential testimony. Adnan is also attempting to amend his petition with an additional claim regarding the cell phone data that was a key part of the evidence against Adnan. Although the circuit court must consider the affidavit from Asia, including information that she was misled by the prosecution regarding the potential significance of her testimony, the court will decide, in light of this information, whether to grant a hearing or not.
I’ve been meaning to post for a while regarding the next step if you lose your post conviction. The current buzz around the Serial Podcast and the recent action in Adnan Syed’s case seem like an ideal jumping off point. So what happens if you lose your post conviction? What is your recourse? You may file an Application for Leave to Appeal (or an “ALA” for short) within 30 days of the date of the court’s order denying you post conviction relief. You are limited to the issues you raised in your post conviction petition. You don’t have to raise every issue you argued in post conviction, but you cannot raise new issues that you never argued before. This is because the crux of your argument in your Application for Leave to Appeal is that the post conviction court got it wrong in denying you relief. You cannot say the post conviction court decided an issue wrong if they never had the opportunity to hear it. The ALA is filed in the clerk’s office of the circuit court that heard the post conviction and the ALA is then forwarded to the Court of Special Appeals. An ALA is different than a direct appeal. If you are found guilty after a trial, you have a direct right of appeal. That means the Court of Special Appeals must hear your case. You may file a lengthy written brief; the Attorney General’s Office (not the State prosecutor) files a response; sometimes you file a reply to the Attorney General’s brief; and typically, there is an oral argument before a panel of three judges in the Court of Special Appeals in Annapolis.
An ALA is a bit of a different animal. Certain pleadings such as a post conviction, a motion to reopen, or a guilty plea do not automatically have the right to appeal. Instead, you have the right to ask for permission for the Court of Special Appeals to hear your appeal. Typically, an ALA is shorter document than a full fledged appeal. In the vast majority of cases, the Court of Special Appeals issues a one page opinion that reads, “read, considered, denied.” On rare occasion, the Court will order the Attorney General to respond, and then sometimes the Court will set the case in for full briefing and oral argument. At that point, the case is treated in a similar manner to a direct appeal. In the Application for Leave to Appeal, you are arguing that the circuit court who denied your post conviction got it wrong. So for example, if you alleged in your post conviction petition that your trial counsel was ineffective for failing to call an alibi witness and the post conviction court said, I do not find that trial counsel was ineffective because I’m persuaded that trial counsel made a tactical decision to not pursue this witness, then you are asking the next highest court to disagree with the post conviction court and find that trial counsel was ineffective for the reasons your argued in the court below.
So what exactly is happening in Adnan Syed’s case and what is the significance of the recent action taken by the Court of Special Appeals? Represented by C. Justin Brown, Mr. Syed filed a post conviction petition alleging ineffective assistance of counsel. As is usually argued in a post conviction petition, Mr. Syed argued that trial counsel was ineffective, i.e. made a serious mistake, that caused him prejudice, i.e., there is a substantial possibility that but for trial counsel’s mistake, the result of the trial would have been different. If Mr. Syed could persuade the post conviction court that trial counsel was ineffective in this way, then he would be entitled to a new trial. Mr. Syed alleged, amongst other claims, “whether it was ineffective for trial counsel to ignore and fail to investigate a credible alibi witness who had stated, prior to trial, that she was with Petitioner at approximately the same time that the murder occurred;” and whether trial counsel was ineffective for telling her client she had fulfilled his wish and approached the State about a plea offer, when in fact trial counsel had never spoke to the State about a potential plea deal.” Unfortunately, Mr. Syed was not able to produce his alibi witness at the post conviction hearing to testify about what she would have said if she had been called to testify at the original trial. Although, Mr. Syed had an affidavit from his alibi witness, one of the prosecutors from the original case testified at the post conviction hearing that he had been in contact with the alibi witness and that she informed him that she was pressured into writing the affidavit by Mr. Syed and his family. The post conviction court denied relief and Mr. Syed filed an ALA arguing that the post conviction court got it wrong with regard to those two claims. The Court of Special Appeals ordered the Attorney General’s Office to respond on the second issue, whether the trial counsel was ineffective for telling her client that she sought a plea deal on his behalf, when, in fact, she had not. After the State responded, Mr. Syed then filed a Supplement to his Application for Leave to Appeal asking the Court of Special Appeals to do one of the following, either 1) send the case back down to the post conviction court in light of new evidence; or, to consider the first issue regarding the alibi witness as well as the second issue. The new evidence was a new affidavit from the alibi witness who stated that the prosecutor was lying when he testified at the post conviction hearing and said she (the alibi witness) told the prosecutor that she was pressured into writing that affidavit. The new affidavit stated that the prosecutor misrepresented the potential importance of her alibi information to her. The affidavit also reasserted that she wrote the original affidavit freely and honestly. Fortunately for Mr. Syed, on February 6, 2015, the Court of Special Appeals issued an order granting his Application for Leave to Appeal and setting the case in for full briefing and oral argument. My understanding is that, as of right now, the Application has only been granted with regard to the second issue, i.e., seeking a plea offer. In the order, the Court refers the first issue to another panel of Court of Special Appeals judges to consider the issue regarding the alibi witness. This grant does not reverse the decision of the post conviction court, not yet anyway. It simply means that Mr. Syed has been given another opportunity to argue that his trial attorney was ineffective for not seeking a plea deal; and, potentially, another opportunity to argue that trial counsel was ineffective to for failing to investigate the alibi witness. The Court’s order specifies when each side must file their briefs on those limited issues and when oral argument will take place, June of 2015.
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