YOUNG LEE, AS VICTIM’S IN THE

REPRESENTATIVE,
APPELLATE COURT OF
Appellant
OF MARYLAND
v.
No. 1291
STATE OF MARYLAND AND
ADNAN SYED, September Term, 2022

Appellees Cir. Ct. Nos. 199103042-46

MOTION FOR RECONSIDERATION

Appellee, Adnan Syed, by counsel, Erica J. Suter, Director, UB Innocence Project

Clinic and Brian L. Zavin, Chief Attorney, Office of the Public Defender, Appellate

Division, files this Motion for Reconsideration of the Court’s opinion pursuant to Rule 8-

605 for the following reasons:

The Court reinstated Mr. Syed’s convictions and remanded for the circuit court to

conduct a new vacatur hearing based on an error that Appellant did not allege: a violation

of the right to notice of a hearing he could attend in person but in which he would not be

allowed to participate. Notably absent from the Court’s opinion is any discussion of how

Appellant satisfied his burden of demonstrating that the purported error was not harmless.

See Crane v. Dunn, 382 Md. 83, 91 (2004) (“It is the policy of this Court not to reverse for

harmless error and the burden is on the appellant in all cases to show prejudice as well as

error.”).

Even in cases involving a violation of a criminal defendant’s constitutional right to

be present, Maryland courts have held that automatic reversal is not the norm. In State v.
Hart, 449 Md. 246, 262 (2016), the Supreme Court of Maryland explicitly held that

“[w]hen a violation of a criminal defendant’s right to be present is at issue, we apply the

harmless error analysis.” “‘Prejudice will not be conclusively presumed,’” the Court

explained, so the standard for harmless error set forth in Dorsey v. State, 276 Md. 638

(1976), applied: “‘If the record demonstrates beyond a reasonable doubt that the denial of

the right could not have prejudiced the defendant, the error will not result in a reversal of

his conviction.’” Id. at 262-63 (quoting Noble v. State, 293 Md. 549, 568–69 (1982)). Cf.

Reeves v. State, 192 Md. App. 277, 300 (2010) (“Finally, even if we were to hold that the

trial court’s failure to conduct a more extensive investigation into the voluntariness of

appellant’s absence and its decision to allow the verdict to be rendered in his absence were

abuses of discretion, any error was harmless. An error is harmless if we are convinced

beyond a reasonable doubt that the error in no way influenced the verdict.”).

Similarly, other courts that have considered cases in which defendants were required

to appear remotely rather than in person have reviewed for harmless error. See, e.g., Hager

v. United States, 79 A.3d 296 (D.C. 2013) (violation of defendant’s right to be physically

present during voir dire not harmless where record did not show that “defendant was able

to meaningfully participate”); Gibson v. Commonwealth, 2021 WL 3828558, *4 (Ky. Aug.

26, 2021) (error in conducting sentencing by video conference harmless where, inter alia,

“hearing allowed all participants to see and hear one another”); People v. Anderson, __

N.W.2d __, 2022 WL 981299, *7 (Mich. Ct. App. March 31, 2022) (error in conducting

sentencing hearing by video conference harmless where “[t]here is no evidence, inference,

nor indication that defendant’s treatment likely would have been different had he been

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face-to-face with the sentencing judge”); State v. Taylor, 198 N.E.3d 956, 966-67 (Ohio

Ct. App. 2022) (violation of defendant’s right to be physically present at sentencing

harmless where his “interests were represented by defense counsel who was physically

present in the courtroom; no objection was raised as to his physical absence; appellant was

able to see and hear the courtroom and to be seen and heard by the courtroom; although he

chose not to, appellant was permitted the opportunity to make a statement; and appellant

advances no argument on appeal that his physical absence prevented a fair hearing”); State

v. Byers, 875 S.E.2d 306, 318-19 (W.Va. 2022) (State failed to demonstrate beyond a

reasonable doubt that requiring defendant to appear remotely for sentencing was harmless

where court was “left to simply speculate as to the sentence Mr. Byers might have received

had he been physically present”).

It bears noting that Appellant is not a criminal defendant, and so Appellant must

show, and this Court must find, that “the error was likely to have affected the verdict

below[.]” Flores v. Bell, 398 Md. 27, 33 (2007). “The focus of our inquiry is on the

probability, not the possibility, of prejudice.” Id. See also I. W. Berman Properties v. Porter

Bros., 276 Md. 1, 11–12 (1975) (“An error which does not affect the outcome of the case

is ‘harmless error.’”). To establish reversible error, Appellant therefore must show, and

this Court must find, that the result of the vacatur hearing would have been different had

he been permitted to observe the hearing silently in person rather than, as happened,

participate over Zoom.

Because Appellant’s asserted right of participation was the crux of his argument

before the Court, Mr. Syed did not argue previously that Appellant failed to meet his burden

3
of demonstrating that the outcome would have been different. If, as Appellant contended

in his brief and at oral argument, he was entitled to act as a party by presenting and refuting

evidence, then Mr. Syed would have been hard-pressed to argue that the denial of that right

was harmless. However, this Court’s holding is far more limited. The right to be physically

present, with no corresponding right to participate, is susceptible to harmless error analysis

under the circumstances present here: a motion to vacate filed by the State, joined by the

defense, and granted by the court.

Nothing in the record gives even the slightest indication that the circuit court would

have reached a different result if Appellant had been afforded the rights to which the Court

holds he was entitled. Indeed, as the Court observes, the circuit court allowed Appellant

the opportunity to speak, although neither the vacatur statute nor rule authorizes it. If the

circuit court was not persuaded to deny the State’s vacatur motion under these

circumstances, it beggars belief to suggest that it would have denied the motion had

Appellant been physically present in the courtroom and addressed the court as he did

remotely at the vacatur hearing. It is equally inconceivable that the Court would have

reached a different conclusion had Appellant remained silent.

As it stands, the Court’s opinion permits two inferences, neither of which is

justified. The first is that errors affecting the rights of victims’ representatives can never be

harmless even where, as here, the right in question is provided for by statute. By contrast,

and as noted above, courts in Maryland and elsewhere have held that the violation of a

similar constitutional right of a criminal defendant may be found harmless.

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 In the alternative, the Court may be announcing a new rule of law that anytime a

court requires a party or, as here, a non-party, to appear remotely, the error is per se

reversible. The number of cases impacted by such a rule in just the past few years when

our courts operated remotely is likely quite high. But even post-pandemic, the impact will

be staggering. Just last week, the Supreme Court approved rules allowing trial courts to

require remote participation in certain proceedings over the objection of the parties.

Supreme Court of Maryland, 214th Rules Order, at 396-400 (April 21, 2023).1 Tellingly,

even when the consent of the parties is required to allow for remote participation, the new

rules make no provision for objections by non-parties, including victims and victims’

representatives. Under this Court’s opinion, compliance with the rule will lead invariably

to reversible error.

Assuming the Court has not singled out victims’ representatives for special

treatment not available even to criminal defendants, and assuming the Court does not wish

to open the floodgates to claims of reversible error, it should reconsider its decision to

reverse in this case. Through video and the presence of his attorney in the courtroom,

Appellant was able to convey the gravity of the proceedings for his family. Before this

Court should be willing to take the drastic and unprecedented step of reinstating the

criminal convictions of an individual whom the State has declined to prosecute, it at a

minimum should require Appellant, like all other litigants, to demonstrate that any errors

committed by the trial court were not harmless.

1
https://www.mdcourts.gov/sites/default/files/rules/order/ro214.pdf (last checked
April 25, 2023).
5
 WHEREFORE, Appellee respectfully requests that this Court reconsider its opinion

and, unless Appellant is able to demonstrate prejudice in accordance with established

precedent, affirm the judgment below.

Respectfully submitted,

XÜ|vt fâàxÜ
/s/
__________________________
Erica J. Suter, AIS # 0712110231
Director, Innocence Project Clinic
University of Baltimore School of Law &
the Office of the Public Defender
1401 N. Charles Street
Baltimore, MD 21201
410-837-5388 (phone)
410-837-47766 (fax)
[email protected]

UÜ|tÇ mtä|Ç
/s/
__________________________
Brian L. Zavin, AIS # 0412150444
Chief Attorney
Office of the Public Defender
Appellate Division
6 Saint Paul Street, Suite 1400
Baltimore, Maryland 21202
(410) 767-8523 (phone)
(410) 888-3301 (fax)
[email protected]

Counsel for Appellee

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 CERTIFICATION OF WORD COUNT
AND COMPLIANCE WITH RULE 8-112

1. This motion contains 1,505 words.

2. This motion complies with the font, spacing, and type size requirements stated in Rule
8-112.

/s/XÜ|vt fâàxÜ
___________________________
Erica J. Suter

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 26th day of April, 2023, a copy of the foregoing
in the captioned case was delivered via the MDEC system to:

David W. Sanford
Steven J. Kelly
Ari B. Rubin
Sanford Heisler Sharp
111 S. Calvert St., Ste 1950
Baltimore, MD 21202

Daniel J. Jawor
Chief Counsel
Office of the Attorney General
Criminal Appeals Division
200 Saint Paul Place, 17th Floor
Baltimore, MD 21202

/s/XÜ|vt fâàxÜ
___________________________
Erica J. Suter