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Editor: Colin Miller

The Cliffs Notes Version of Yesterday’s Post on Excusing Waiver in the Adnan Syed Appeal

By Colin Miller

Last night’s post seems to have caused some confusion, so here’s the Cliffs Notes version:

1. Adnan had until June 6, 2010 to bring a claim that he received ineffective assistance of counsel based upon his trial counsel’s failure to use the AT&T disclaimer to cross-examine the State’s cell tower expert;

2. In his initial PCR petition, filed on May 28, 2010, Adnan did not raise a claim of ineffective assistance of counsel based upon his trial counsel’s failure to use the AT&T disclaimer to cross-examine the State’s cell tower expert;

3. Adnan first raised the cell tower claim in a Supplement filed on August 24, 2015;

4. Judge Welch could have ruled that Adnan’s failure to raise the cell tower claim by June 6, 2010 2000 resulted in waiver of that claim, meaning that Judge Welch would not consider the merits of that claim;

5. Instead, Judge Welch ruled that Adnan did not knowingly and intelligently waive the cell tower claim, meaning that (a) there was no actual waiver; (b) Judge Welch could consider the merits of the cell tower claim; (c) Judge Welch was able to grant Adnan a new trial based on the cell tower issue;

6. If the State appeals to the Court of Special Appeals of Maryland, that court could agree that Adnan did not waive the cell tower issue and affirm Judge Welch’s order granting Adnan a new trial;

7. Alternatively, and this was the point of yesterday’s post, the Court of Special Appeals of Maryland could disagree with Judge Welch, conclude that Adnan did waive his cell tower claim, and yet, pursuant to Maryland Court Rule 8-131(a), excuse Adnan’s waiver, and affirm Judge Welch’s order granting Adnan a new trial.

Put more simply, the Court of Special Appeals can affirm Judge Welch’s order granting Adnan a new trial on the cell tower claim by either (1) agreeing with Judge Welch that Adnan did not waive the cell tower claim; or (2) finding that Adnan did waive the cell tower claim but excusing this waiver.

-CM