Vacatur Vacated In Syed Case

The Maryland Supreme Court has found that the rights of the Hae Min Lee’s family were violated and remanded the vacatur of Adnan Syed’s conviction

The Maryland Constitution requires that crime victims and their representatives be treated by agents of the State with dignity, respect, and sensitivity during all phases of the criminal justice process. It also grants victims and their representatives specific rights, including in some instances the rights to be notified of, to attend, and to be heard at criminal justice proceedings. The General Assembly has enacted a number of statutes that implement these constitutional requirements. In this case, we consider the scope of a crime victim’s rights at a hearing on a motion to vacate a conviction.

In September 2022, the State’s Attorney for Baltimore City moved to vacate Adnan Syed’s 2000 conviction for the murder of Hae Min Lee under a recently enacted statute that allows a court to vacate a conviction if certain conditions are met. See Md. Code, Crim. Proc. (“CP”) § 8-301.1 (2018 Repl. Vol., 2023 Supp.). The prosecutor gave the crime victim’s representative, Young Lee (Ms. Lee’s brother), less than one business day’s notice of an in-person hearing on the motion to vacate. As the prosecutor and the presiding judge were aware, Mr. Lee lives in California. The court denied Mr. Lee’s request for a one-week postponement of the hearing, which would have allowed Mr. Lee to attend the hearing in person in Baltimore.

The requested postponement having been denied, Mr. Lee observed the hearing remotely. Mr. Syed appeared in person. The court allowed Mr. Lee to make a statement at the beginning of the hearing, prior to the presentations by the prosecutor and defense counsel. After Mr. Lee completed his remarks, the court denied Mr. Lee’s attorney’s request to be heard briefly.

At the conclusion of the hearing, the court granted the motion to vacate and ordered the State’s Attorney within 30 days either to schedule a new trial for Mr. Syed or to enter a nolle prosequi (“nol pros”) of the charges. Mr. Lee subsequently noted an appeal of the order vacating Mr. Syed’s convictions and moved for a stay of the circuit court proceedings.  Shortly before Mr. Syed’s response to Mr. Lee’s motion to stay was due to be filed, the State’s Attorney entered a nol pros of the charges against Mr. Syed.

A divided panel of the Appellate Court of Maryland vacated the circuit court’s order and remanded for a new hearing. The Majority first held that the entry of the nol pros did not moot Mr. Lee’s appeal. On the merits, the Majority concluded that Mr. Lee had a right to reasonable notice of the vacatur hearing as well as a right to attend the hearing in person, and that Mr. Lee had been denied both of these rights. However, the Appellate Court held that crime victims and their representatives do not have a right to be heard at a hearing on a motion to vacate a conviction. We subsequently granted Mr. Syed’s petition for writ of certiorari and Mr. Lee’s cross-petition.

As discussed below, we agree with the Appellate Court that the entry of the nol pros did not moot Mr. Lee’s appeal. We also agree that Mr. Lee had the right to attend the hearing on the motion to vacate in person, and that he did not receive sufficient notice of the hearing to reasonably permit him to do so. We further conclude that a crime victim (or victim’s representative) has the right to be heard at a hearing on a motion to vacate, including on the merits of the motion, through counsel (if counsel has been retained). Because Mr. Lee’s rights as the crime victim’s representative were violated and Mr. Lee has made a sufficient showing of prejudice, this case will be remanded to the Circuit Court for Baltimore City for further proceedings. On remand, the parties and Mr. Lee will begin where they were immediately after the State’s Attorney filed the motion to vacate.

The opinion is authored by Biran, J. Hotten, Booth, and Battaglia, JJ., dissent.

Justice Booth

Respectfully, I dissent. In my view, this appeal was rendered moot by the State’s entry of a nol pros following the grant of the State’s vacatur motion. I disagree with the Majority that the nol pros was a legal nullity. That said, because this case presents issues that are likely to recur and evade review, as well as matters of important concern, I would exercise discretion to consider the merits.

With respect to the merits, as I discuss more fully below, in my view, the Majority’s opinion in this case implicates separation of powers concerns. The Majority creates a victim’s constitutional “right to be heard” that was not argued or briefed by the parties and is inconsistent with the plain language of Article 47 of the Maryland Declaration of Rights. The Majority also re-writes the victims’ rights statutes to provide a right where the Legislature has declined to provide one. Respectfully, it is not our role to act as a superlegislature when we think our policies are better.

The dissent would find the right to attend and be heard were satisfied here.

Her concluding observations

I conclude with some general concerns about the Majority’s opinion in this case that are too important to leave unaddressed. In my view, the Majority’s analysis implicates serious separation of powers and fairness concerns that will have a ripple effect beyond this case.

This is the second case over the course of the last twelve months in which the Majority has decided to reach constitutional issues that were not argued or briefed before this Court. Respectfully, I do not agree with this approach. See Clark v. State, 485 Md. 674, 765 (2023) (Gould, J., dissenting, joined by Fader, C.J., and Booth, J.) (disagreeing with the Majority’s decision to “mak[e] new constitutional law without the input of the parties”). In this case, the parties’ arguments all focused upon whether Mr. Lee had a right to be heard pursuant to a statute or a rule. The only briefing presented by any party on a “constitutional right” was contained in a single paragraph in Mr. Lee’s reply brief,  asserting such a right with no discussion or analysis. Of course, given that it was summarily raised in a reply brief and with no actual analysis, neither Mr. Syed nor the State was “given an opportunity to address these important issues.” Clark, 485 Md. at 764 (Gould, J., dissenting). “[T]he Majority is making new constitutional law without the input of the parties.” Id.

To refute this point, the Majority points out that Article 47 is “central[] to questions concerning victims’ rights” and proceeds to cite to generalized references in the briefs to Article 47 as well as arguments in the amicus briefs asserting a general constitutional right. Maj. Slip Op. at 68. The Majority also points to questions raised by one member of the Court during oral arguments concerning Article 47. I will not attempt to engage in a “who said what” in the briefs. They speak for themselves.

The Majority also violates “the Court’s strong and established policy . . . to decide constitutional issues only when necessary.” VNA Hospice of Md. v. Dep’t of Health & Mental Hygiene, 406 Md. 584, 604 (2008) (cleaned up); see also Christopher v. Montgomery County Dept. of Health & Hum. Servs., 381 Md. 188, 217 (2004) (“[W]e adhere to the established principle that a court will not decide a constitutional issue when a case can properly be disposed of on a non-constitutional ground.” (cleaned up)). “This Court has emphasized[]” this policy “time after time[.]” VNA Hospice of Md., 406 Md. at 604; see also State v. Raithel, 285 Md. 478, 484 (1979) (“[N]othing is better settled than the principle that courts should not decide constitutional issues unnecessarily.” (emphasis added)).

Because the Majority concludes that Mr. Lee had a right to be heard at the vacatur hearing pursuant to CP § 11-403(b), there is absolutely no reason to address the constitutional right at all. Dorsey v. State, 356 Md. 324, 342 (1999) (“Since we shall hold that the petitioners had a statutory right to jury trials in the instant cases, we need not and shall not reach the issue of whether they were entitled to jury trials under Articles 5 and 21 of the Maryland Declaration of Rights.”).

The Majority’s decision to establish new constitutional rights is particularly troubling here because in doing so, the Majority is calling into question the constitutionality of several statutes enacted by the General Assembly that, by their express terms, do not include a victim’s right to speak. See CP § 8-301 (petitions for writ of actual innocence); CP § 8-110 (JUVRA); CP § 8-301.1 (vacatur). I would think that prior to embarking on such an undertaking that will invariably cause a sea-change in the manner in which post-sentencing hearings must now occur involving incarcerated individuals’ liberty interests, it would be prudent to hear the Attorney General’s position.

Putting aside the fairness implications, the Majority’s constitutional underpinning—that the plain language of Article 47 creates a broad substantive victim’s right to be heard and interprets Article 47(b) as placing conditions or limitations on the General Assembly’s authority to implement this right—is in direct contravention of the express language of Article 47, in which the voters conferred upon the General Assembly the authority to determine the circumstances in which a victim’s right to be heard would be established. These are policy decisions that are within the discretion of the General Assembly, not this Court.

What is more, in undertaking the constitutionally delegated functions of the Legislative Branch, the Majority is attempting to tie the General Assembly’s hands when it enacts future legislation. The Majority instructs the Legislature that it may not enact future legislation that does not comport with how the Majority believes a victim’s right to be heard should be implemented. See Maj. Slip Op. at 65 (“We conclude that the General Assembly may not create a new criminal justice proceeding without affording victims the rights to notice, attendance and to be heard at such new proceeding unless the General Assembly makes clear on the face of the legislation or in unambiguous legislative history that it finds it would not be practicable to provide one or more of those rights to victims with respect to the new criminal justice proceeding.”). The Majority’s veering into the legislative lane is significant and profound.

Finally, in crafting how it believes the victim’s right to be heard should be implemented, without any authority, the Majority creates a new victim’s right to be heard that transcends anything that the General Assembly has enacted to date. As discussed above, where the General Assembly has created such a right, it is a right to address the court. See CP § 11-403. It is not a right to participate in the process. The Majority describes in some length and detail how it envisions a victim should be permitted to address the court at a vacatur hearing, expounding (again, based upon policy and without any authority) that a victim’s right “includes the right to address the merits of the vacatur motion after the prosecutor and the defense have made their presentations in support of the motion.” Maj. Slip Op. at 71. The Majority instructs—again without any authority— that “if the victim believes the State has not met its burden of proof” under the vacatur statute, “the victim must have the right to explain why the victim believes that to be the case and to ask the court to deny the motion.” Id. The Majority adds that “in a case like this one where the prosecutor and defendant both seek a vacatur, the victim’s attorney can help the court.” Maj. Slip Op. at 72. The Majority’s new hearing requirements harken back to the days of yore before victim-initiated prosecutions were constitutionally abolished. See supra note 2. Respectfully, if the General Assembly wishes to confer that authority upon victims or their counsel, it may do so.

For the above reasons, I respectfully dissent.

The oral argument is linked here. (Mike Frisch)