Adnan Syed’s Convictions Reinstated for the Victims’ Right to Attend in Person
The Serial continues. On March 28, 2023, the Appellate Court of Maryland reinstated Adnan Syed’s convictions and sentence to life in prison plus 30 years, because it found that the trial court violated the victim’s right to notice of, and his right to attend, the hearing on the State’s motion to vacate, in violation of Criminal Procedure § 8-301.1(d) (Lee v. State, et al, No. 1291, September Term 2022, Opinion by Hon. Kathryn Graeff).
The Appellate Court found that, although the victim’s representative, Young Lee, did attend the vacatur hearing virtually, and had no right to be heard, he had the right to receive notice sufficient to allow him to attend in person. The Court further found that the subsequent entry of a nolle prosequi did not render this appeal moot because it was a nullity.
The Lee decision is the first time that the ACM expands the Court’s control over a nolle prosequi entered by the State in favor of a victim’s rights, and to the defendant’s detriment. The dissent (Hon. Stuart Berger), disagrees with the majority in two ways. First, Judge Berger would have held that the appeal was moot, and second, that the victim’s rights to notice and to be present were not violated.
Procedural Background. Adnan Syed was convicted in 2000 for the murder of Hae Min Lee and sentenced to life plus 30 years. By 2022, Mr. Syed had exhausted his direct appeal and state postconviction rights. On September 14, 2022, the State filed a motion to vacate Mr. Syed’s conviction, pursuant to CP § 8-301.1, arguing that it had uncovered Brady violations and new information that called into question the reliability of the State’s evidence admitted at trial. The State concluded that it no longer had confidence in the integrity of the conviction. The Court scheduled a date for the vacatur hearing on Monday, September 19, 2022. The victim’s representative, Mr. Lee (who lives in California), was advised by the State on Friday, September 16, 2022, that a hearing would occur on Monday, that he could attend in person, however a zoom link was made available, if he chose to attend remotely. At the Monday hearing, Mr. Lee’s attorney appeared in person and Mr. Lee appeared virtually. A motion to postpone was filed, and argued at the hearing, requesting for the vacatur hearing to be continued to allow for Mr. Lee’s appearance in person. The Court denied the request to postpone but heard from him remotely. The Court then heard from the State regarding the basis for the vacatur’s proceedings, and at the conclusion of the hearing, vacated Mr. Syed’s convictions “in the interests of justice and fairness.” Mr. Lee filed a notice of appeal and a motion to stay all proceedings in the Circuit Court pending the appeal. The State entered a nolle prosequito all charges before responding to the motion to stay and before the case could be heard on appeal.
The Appeal is Not Moot. The ACM concluded that the nolle prosequi was a nullity because it was entered with the purpose of, or had the necessary effect of, preventing the victim’s representative from obtaining a ruling on appeal regarding whether his rights as a victim’s representative were violated. This action conflicted with the State’s interest in procuring justice, which requires it to ensure that the constitutional rights of crime victims are honored and protected. By entering a nol pros while a motion to stay was pending, the State violated the requirement that its entry conform to “the rudimentary demands of fair procedure,” and it resulted in an injustice to the victim’s representative. The Court stated that “allowing a nol pros in this circumstance gives the State a mechanism to insulate a defective proceeding from appellate review, and it prevents victims from receiving the rights to which they are entitled.” Therefore, the nol pros is void, and does not render this appeal moot.
Victim’s Right to Attend in Person was Violated. The ACM held that in the circumstance where a victim’s representative conveys to the court a desire to attend a vacatur hearing in person, all other individuals involved in the case are permitted to attend in person, and there are no compelling reasons that require the victim to appear remotely, a court requiring the victim to attend the hearing remotely violates the victim’s right to attend the proceeding. The Court further ruled that allowing a victim to attend a court proceeding in person, when the victim makes that request and all other persons involved in the hearing appear in person, is consistent with the constitutional requirement that victims be treated with dignity and respect.
No Right to be Heard. Both the Majority and the Dissent agreed that Mr. Lee had no right to be heard at the vacatur hearing.
Remedy. Because the court violated Mr. Lee’s right to notice of, and his right to attend, the hearing on the State’s motion to vacate, in violation of CP § 8-301.1(d), the Court has “the power and obligation to remedy that injury.” Therefore, the ACM vacated the Circuit Court’s order vacating Mr. Syed’s convictions and sentence, which results in the reinstatement of the original convictions and sentence and remanded “for a new, legally compliant, transparent hearing on the motion to vacate, where Mr. Lee is given notice of the hearing that is sufficient to allow him to attend in person, evidence supporting the motion to vacate is presented, and the court states its reasons in support of its decision.”
The Dissent. For Judge Berger, the Majority reads the cases supporting a limitation of the State’s authority to nol pros charges too broadly. These cases discussed fundamental fairness principles owed to defendants, not victims. Following the entry of the nol pros in this case, there was no underlying case in which to enter a remand, rendering the appeal moot. On the merits, which the Dissent would undertake as a matter of discretion and as a matter of important public concern capable of repetition, it found no violation of the victim’s representative’s right to notice and the right to be heard. The Dissent pointed out that there are distinct differences between remote participation and in-person participation that are not implicated when an individual has the right to attend but not participate. “It is conceivable that an in-person presentation might be more compelling to a fact-finder than a presentation made via electronic means. These concerns are not implicated when an individual has the right to attend but not to participate. Section 8-301.1 of the Criminal Procedure Article provided Mr. Lee the right to attend the vacatur hearing, not to participate. I would hold that Mr. Lee’s attendance via Zoom was sufficient to satisfy this requirement.”
Of course, this is unlikely to be the end. The ACM stayed the effective date of the mandate for 60 days. We expect both Mr. Lee and Adnan Syed to file cross petitions for writ of certiorari to the Supreme Court of Maryland.