How to Speed Up the Serial Appeal

By Steve Klepper (Twitter: @MDAppeal)

[Update: A reader, David Lease, pointed out to me the 4-3 decision in Stachowski v State, 416 Md. 276(2010), which appears to negate the possibility of bypass. Thanks to David and boo to Stachowski.]

Fans of the Serial podcast received some good news and some bad news this weekend. The good news: the Court of Special Appeals granted Adnan Syed’s application for leave to appeal. His ineffective assistance of counsel claim will be heard on the merits during the court’s June 2015 sitting. But there was bad news for those who had trouble waiting between Serial installments: final resolution is going to take a while. As Sarah Koenig explained on her blog:

No matter what the Court of Special Appeals rules, it’s quite possible the whole megillah ends up in Maryland’s highest court, the Court of Appeals. Because if this current panel of judges grants Adnan relief, the state is likely to appeal to the highest court; and likewise, if it denies Adnan relief, Adnan’s attorney will probably do the same. So it’s bound to grind on for a long while yet.

Koenig is right to brace the nation for a wait. My educated guess is that it will take the Court of Special Appeals anywhere between 3 and 12 months (and maybe longer) to issue its decision. Decisions sometimes come more quickly. But the three-judge panel, whose identity won’t be revealed until the day of argument, will be in the unusual position of knowing that its decision will be read across the country.

Even if the decision comes out three months after argument, the timing is bad for swift review by our highest court, the Court of Appeals. Let’s say the Court of Special Appeals issues its decision after its conference in the final week of September. A petition to the Court of Appeals would be due 45 days later, in early-to-mid November. The Court of Appeals likely would not vote on the petition until its January 2016 conference. If the Court of Appeals grants review at its January 2016 conference or later, the case would be scheduled for argument during the annual term beginning September 2016. The Court of Appeals would then issue its opinion as quickly as two months later, or it could take as long as until August 2017.

But there is a way to speed up the process. Now that the Court of Special Appeals has granted the application for leave to appeal, Syed’s application is now (under Rule 8-204(g)) treated as an ordinary notice of appeal. Consequently, Syed’s lawyers can now (under Rule 8-302(a)) petition for Court of Appeals review at any time until 45 days after the Court of Special Appeals rules. Also, although the Court of Appeals recently disbanded its Bypass Committee, which reviewed all pending Court of Special Appeals cases, the Court of Appeals still retains power to grant review on its own motion.

Under its certiorari statute, the Court of Appeals can grant review if “desirable and in the public interest.” It’s a malleable standard. Obtaining review is nowhere near as hard as it is in the United States Supreme Court. Heck, it’s statistically easier than getting oral argument in the U.S. Court of Appeals for the Fourth Circuit.

Syed’s appeal, being fact-bound, is not the ordinary candidate for bypassing the Court of Special Appeals. But, with the nation watching, this is not an ordinary appeal. Recognizing that fact, the Maryland judiciary’s website maintains a media page to post filings in Syed v. State. It is a “big” appeal, and review by the Court of Appeals is a distinct possibility.

If the Court of Appeals grants bypass, it could set argument in the fall of 2015. There would be a live-stream video of the argument. The decision would then likely come down in early 2016, and no later than August 2016. It would still be a long time to wait, but it would likely shave a year off the appeals process.