The Volokh Conspiracy
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Yesterday the Appellate Court of Maryland enforced crime victims' rights in a high-profile case involving Adnan Syed, the subject of the "Serial" podcast. In a 2-1 decision, that Court ruled that the trial court needed to respect the rights of Young Lee, brother of Hae Min Lee (the victim), to have been notified of and to have attended a hearing last September when the trial judge vacated Mr. Syed's conviction for murdering Ms. Lee. This decision is an important milestone, signaling that crime victims' rights are becoming an enforceable part of our nation's criminal justice architecture.
Most readers are aware of the "Serial" podcast, which cast doubt on the reliability of Mr. Syed's convictions in 2000 for (among other things) the 1999 murder of 17-year-old Hae Min Lee. In 2003, the Maryland Court of Special Appeals affirmed his conviction. In 2010, Mr. Syed filed a petition for for post-conviction release, arguing ineffective assistance of counsel. Ultimately, after extended evidentiary and other hearings, the Maryland Court of Appeals affirmed Mr. Syed's conviction. The U.S. Supreme Court denied certioari. At the time, Maryland Attorney General Brian Frosh responded to news of the high court's decision by saying the evidence linking Mr. Syed to Ms. Lee's death was "overwhelming."
Then, several years later, in September 2022, Baltimore State's Attorney Marilyn Mosby filed a motion to vacate Mr. Syed's convictions under Maryland's vacatur statute. The motion argued that prosecutors had failed to disclose evidence to the defendant that other suspects might have been responsible for the murder. That motion was questioned by many observers, who noted that Mosby acted precipitously as she was about to face trial on federal fraud and perjury charges. (The federal charges against Mosby remain pending; recently her defense attorneys were permitted to withdraw from the case after being accused of violating court rules.) The judge who presided over Mr. Syed's trial also provided an affidavit stating that substantial evidence supported Mr. Syed's conviction. But because the State was moving to set aside Mr. Syed's convictions–and Mr. Syed obvious agreed—it was not clear who was defending the conviction. After a hearing, the Circuit Court for Baltimore City granted the motion.
Ms. Lee's brother, Young Lee, appealed the vacatur, arguing that he (a crime victim's representative) had not been given adequate notice of the vacatur hearing or a meaningful opportunity to be heard on the merits of the vacatur motion. The prosecutor had provided only one business day's notice, via email, to Mr. Lee. Mr. Lee, through counsel, requested a postponement of seven days so that he could arrange to take leave from work and fly from California to be present in the courtroom. The trial court denied the requested postponement but permitted him to give a statement on Zoom—with only thirty minutes to prepare. The Appellate Court concluded this was not adequate notice:
Clearly, notice to a victim in California that there would be a hearing in Baltimore a minute later would not be sufficient to comply with the statutory objectives, a point which Mr. Syed's counsel conceded, appropriately, at oral argument. Similarly, the State's notice here, an email [on Friday] one business day before the hearing on Monday, September 19, 2022, was not sufficient to reasonably allow Mr. Lee, who lived in California, to attend the proceedings, as was his right.
The inadequate notice also interfered with Mr. Lee's right to attend the proceeding, even though he was allowed to participate via Zoom:
We hold that in the circumstance where, as here, a crime victim or 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. Allowing a victim entitled to attend a court proceeding to attend 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.
The Court then considered the appropriate remedy for these violations of crime victims' rights.
It could be argued that setting the vacatur aside and holding a new hearing where victims' rights were respected would violate Mr. Syed's double jeopardy rights. The Court made short work of that potential argument, explaining that
Ordering a new vacatur hearing would not result in a second prosecution after conviction or acquittal. The result of a new vacatur hearing will be to either reinstate the initial conviction or vacate it again. There would not be a second prosecution.
The Appellate Court noted that, against the backdrop of proven violations of Maryland's victims' rights statute, it had "the power and obligation to remedy that injury." Accordingly, the Court set aside trial court's order vacating Mr. Syed's convictions 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 the decision."
While the Appellate Court generally supported victims' rights, one part of the decision held that that a victim does not have a right to be heard a vacatur hearing. This conclusion is difficult to square with the language of the Maryland Victims' Rights Amendment, which gives crime victims the state constitutional right "to be heard at a criminal justice proceeding"—which a vacatur hearing would seem to be. But this part of the Appellate Court's decision may have limited practical importance. The Appellate Court noted that while a victim may lack a "right to be heard, there are valid reasons to allow a victim that right in a vacatur hearing, and the court has discretion to permit a victim to address the court regarding the impact the court's decision will have on the victim and/or the victim's family."
The conclusion that a victim should be heard at a vacatur hearing where no one is defending the judgment of conviction is well supported by (for example) the U.S. Supreme Court's practice of appointing an advocate to defend the judgment below when both parties decline to do so. For example, in 2000, Chief Justice Rehnquist appointed me to argue in defense of the Fourth Circuit's decision that 18 U.S.C. section 3501 superseded the Miranda requirements, after the Clinton Administration Justice Department declined to defend the federal statute. In another case, the Supreme Court has explained that this approach permits it to "decide the case satisfied that the relevant issues have been fully aired."
The Appellate Court declined to formally appoint Mr. Lee to defend the conviction. But if he is permitted to speak—as the Court suggests that "valid reasons" support—then he will be able to provide relevant information on this subject.
Yesterday's Maryland Appellate Court ruling is important because it signals that in Maryland (and, presumably, in many other states with similar laws) crime victims' rights must be respected and will be respected. For the last several decades, the crime victims' rights movement has evolved from working to create crime victims' rights to making those rights enforceable. I know my friends in the crime victims' rights movement in Maryland (some of whom are working on this case) have made that a top priority.
Crime victims face many challenges in enforcing their rights. Among the most significant are obtaining legal counsel and "standing" in court to advance their arguments. Here, Mr. Lee had legal counsel and was allowed to be heard regarding his rights. That result should be broadly applauded, as a process in which crime victims are heard is one that will produce outcomes that are more broadly accepted by the public—regardless of whether that outcome goes in favor of or against the victim.
Enforcing Mr. Lee's rights as a victim representative does not take away any rights from Mr. Syed. The Court stayed enforcement of its ruling for 60 days, which should provide ample time for a new hearing—during which time Mr. Syed is released. It appears that Mr. Syed plans to appeal to the Maryland Supreme Court, so his rights will continue to be reviewed. And if ultimately a new hearing is held, that hearing will be one where both Mr. Syed's and victims' rights are respected.
If the nation is going to adopt crime victims' rights—as all fifty states have done to some degree—those rights should be enforceable. It would add insult to criminal injury to extend victims only paper promises. The Appellate Court of Maryland's decision wisely and properly took crime victims' rights seriously and enforced them.