A Hypothetical to Explain & Assess COSA’s Waiver Ruling in the Adnan Syed Case
In their opinion affirming Judge Welch’s order granting a new trial to Adnan Syed, all three judges of the Court of Special Appeals found that Adnan had waived his claim that Cristina Gutierrez was ineffective based upon failing to cross-examine the State’s cell tower expert with the AT&T disclaimer. In doing so, the judges recognized that there was no case law directly on point. So, did they rule correctly in breaking new ground? Let’s break that question down by considering a hypothetical:
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Hypothetical: Alice, Beth, and Carla are convicted of three separate murder in fall 2015, largely based upon expert testimony by FBI agents that hair recovered from the three crime scenes were matches for their hair. Thereafter:
1. Alice brings a PCR petition, claiming that the jury instructions were improper and there was jury misconduct;
2. Beth brings a PCR petition, claiming that the jury instructions were improper and that trial counsel was ineffective based on failing to contact an alibi witness; and
3. Carla brings a PCR petition, claiming that the jury instructions were improper and that trial counsel was ineffective in failing to use a 2015 report indicating that FBI examiners gave inaccurate testimony in 96% of forensic hair comparison cases to move to exclude testimony by the FBI agent at a Frye or Daubert hearing.
All three PCR petitions are denied. Alice, Beth, and Carla thereafter seek to bring successor PCR petitions, claiming that trial counsel in their cases was ineffective based upon failing to cross-examine their FBI agents. Which of these defendants should be able to bring a successor PCR petition?
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As I noted, the Court of Special Appeals found no case directly on point. That said, the Court did cite Wyche v. State, 53 Md.App. 403 (Md.App. 1983), in which the Court of Special Appeals held that the “knowing and intelligent” waiver standard applied to a defendant’s claim that he had the right to be present during jury instructions. Obviously, this case initially seems helpful to Adnan, and the Wyche opinion plainly states that “[f]undamental rights as we have said, may be waived only where the petitioner intelligently and knowingly effects the waiver.”
But the Court of Special Appeals in Adnan’s case cited the accompanying footnote, which states:
If an allegation concerning a fundamental right has been made and considered at a prior proceeding, a petitioner may not again raise that same allegation in a subsequent post conviction petition by assigning new reasons as to why the right had been violated, unless the court finds that those new reasons could not have been presented in the prior proceeding.
Now, the Court was quick to note that this foonote was dicta and therefore not precedential. But the Court found that its logic applied to Adnan’s case and that the “knowing and intelligent” waiver standard did not apply to his cell tower claim. Why? Well, let’s go back to our opening hypothetical.
Under the Court’s test, Alice can bring her ineffective assistance of counsel claim unless she knowingly and intelligently waived it. This is because the right to the effective assistance of counsel is a fundamental right, and Alice did not claim ineffective assistance in her first PCR petition.
Meanwhile, under the Court’s test, Carla cannot bring her ineffective assistance of counsel claim, and the “knowing and intelligent” waiver standard doesn’t save her. Why? In her first PCR petition Carla raised an allegation of ineffective assistance of counsel in connection with the 2015 report, and now she’s merely assigning a new reason as to why her right to the effective assistance of counsel has been violated.
Both of these conclusions are straightforward and amply supported by case law.
But what about Beth? Under the Court’s test, Beth cannot bring her ineffective assistance of counsel claim, and the “knowing and intelligent” waiver standard doesn’t save her. Why? Beth already raised an allegation of ineffective assistance of counsel — in connection with the alibi witness — and now she’s merely assigning a new reason as to why her right to the effective assistance of counsel has been violated: failure to use the 2015 report.
I think that’s a reasonable argument, but I would argue that there’s an equally reasonable argument: A claim of ineffective assistance of counsel in connection with the 2015 report is a new allegation and different from an allegation of ineffective assistance of counsel in connection with an alibi witness. In other words, Beth’s new claim is fundamentally different (failure to cross-examine an expert) from her prior claim (failure to contact an alibi witness).
And I think this makes sense because it’s consistent with the law of the case doctrine and judicial economy. In the Carla scenario, the courts have already heard Carla’s claim that her trial counsel acted unreasonably in connection with the 2015 report, and she shouldn’t be able to re-litigate that issue by providing new reasoning. But, in the Beth scenario, the court hasn’t heard anything in connection with that 2015. The same could be said about Adnan. While the court had heard Adnan’s claim of ineffective assistance counsel in connection with the failure to contact an alibi witness, the court hadn’t heard anything in connection with the AT&T disclaimer.
Again, I’m not saying that this the only correct interpretation, and I acknowledge that the Court’s interpretation could have merit. The question on potential appeal now is whether there’s any precedent outside of Maryland that supports either interpretation.
-CM