Review of Literature

To have a better understanding of post-conviction cases and a firmer grasp of the

mechanics of post-conviction law, some clarification is in order. First and foremost, a petition
for post-conviction relief gives a person convicted of a crime the opportunity to raise legal
matters regarding his conviction that he was unable to litigate in some other forum (The PostConviction Handbook 6). A petition for post-conviction relief can end in rejection or the
granting of relief, whether it be in the form of a re-trial, a reversed decision, or an amended
sentence. Any tactical, legal, or practical errors made by the petitioners trial counsel count as
deficient acts, and, since they impacted the outcome of the trial and/or caused the court to be
prejudiced against the petitioner, constitute ineffective assistance of counsel, a technical violation
of the constitutional right to legal counsel (The Post-Conviction Handbook).
A hearing judge is the judge assigned to a post-conviction case. He has the responsibility of
conducting a hearing on all first petitions and may grant hearings on subsequent petitions.
Hearing judges also compile the explanations for each rejection or grant of relief in the
Statement of Reasons (The Post-Conviction Handbook). Individuals on both sides of the bench
and both sides of the courtroom play unique roles in how post-conviction cases are decided and
in the powers they hold.
Hearing judges by far wield the most influence when it comes to post-conviction cases
and who decides whether to grant or deny relief, as nearly all petitions are heard by hearing
judges and are often decided by them. Like most judges, the hearing judge in a post-conviction
case has a fair degree of autonomy and discretion in their decisions, although a petitioner can
appeal the ruling of the hearing judge if he disagrees with his decision (Weathersbee). There are
not many rules restricting which judge can or cannot be a hearing judge, since the only
requirement is that the judge was not the petitioners trial judge, that is, unless the petitioner
agrees. After reviewing the post-conviction case by examining the events that occurred at trial

and comparing them to the allegations in the petition, the hearing judge then decides if the
petitioners arguments have merit. If they do, then the hearing judge decides what kind of relief
to grant the petitioner. If the hearing judge does not find merit in any of the allegations of error,
then the petition will be denied (The Post-Conviction Handbook 6). A petitioners fate ultimately
rests with his hearing judge.
Another party that has a big impact on a petitioners possible relief is a three-judge panel,
which decides whether the petitioner is granted relief, or continues to serve out his sentence. In
many cases, the panels decision is what stands between a petitioners freedom and permanent
imprisonment, as many post-conviction petitioners serve life-sentences. Defense attorneys
appear to bear the heaviest burden, as they decide what legal strategies to pursue at trial, which
can often lead to an allegation of ineffective assistance of counsel. The legitimacy of trial
counsels legal advice to the petitioner at the time of the trial and the strategic intent of his advice
is interpreted by a hearing judge or a three-judge panel to determine if any deficient action was
taken, which would mean ineffective assistance of counsel (Berdit). On the other hand,
prosecutors from the original trial can also play a big role in post-conviction cases. Prosecutors
can be called back to testify at a post-conviction hearing to determine what an average attorney
would do, given the professional norms determined by the American BAR Association and the
common practices of attorneys themselves (State of Maryland v. Sands). Post-conviction
petitions follow a path to relief similar to that of a flowchart, where the petition begins first with
the petitioner listing the allegations of error in his trial. Next up is the hearing judges review of
the case and/or a three-judge panels review of the case, and in each scenario, the petitioners
allegations of error are examined and analyzed to see if they have merit. If even one allegation
has merit, the petitioner can be granted post-conviction relief in whatever form so approved by

the court. If none of the allegations of error have merit, the petition is denied, and the petitioner
remains incarcerated.
To examine how judges weigh the consequences of granting or denying post-conviction
relief, hearing judges and three-judge panels will be at the center of the discussion. Hearing
judges are intentionally chosen not to be the original trial judge, unless the petitioner agrees to
have that same judge again. He also resolves the post-conviction case in his Statement of
Reasons, which consists of a recitation of the allegations of error and the judges rulings, and
especially why he found which allegations had merit, and which had none (The Post-Conviction
Handbook 6). By having a completely different hearing judge from the trial judge, the postconviction case is subjected to a much less biased examination, making for a more balanced costbenefit analysis by the hearing judge. This unbiased approach contributes to the hearing judges
ability to approach post-conviction hearings in a semi-formulaic way. Hearing judges carefully
process the information from the original trial, the petitioners allegations, and the states defense
against the petition to reach their decision to grant or deny relief to the petitioner (Tucker). A
law clerk assisting the hearing judge also plays a big role in how the hearing judge perceives the
case and the relevant information relating to the case. Since the judges that take on the role of
hearing judges must also handle regular civil and criminal cases on the docket in addition to a
post-conviction case, a law clerk helps with sifting through the paperwork and especially with
summarizing the information in a given case (Sapia). Hearing judges must undergo their own
form of cost-benefit analysis by comparing the costs of granting the petitioner relief in whatever
form deemed fit. Allowing for a retrial has the potential to do harm if the petitioner is not
innocent, but if he is, a retrial means another opportunity at freedom.
A three-judge panel can take one of two approaches to voting on a post-conviction
petition. They can either come to a vote by having the court as a whole review the legal issues at

hand a reach collective decisions on each issue as dictated by a majority vote (Post and Salop).
Collective decision-making leaves less room for individual interpretation, allowing two judges to
overpower the opinion of one in an ongoing discussion of a single legal issue or even a group of
legal issues. On the other hand, the outcome approach to voting has individual judges coming to
an independent conclusion on the preferred outcome of the case based on his analysis of the legal
issues raised in the case. This is the more common approach with a three-judge panel (Post and
Salop 733-744). At the Circuit Court for Howard County, the outcome approach is used by the
three-judge panels that preside over post-conviction cases (Tucker). An independent view of the
post-conviction case as a whole after analyzing the legal issues and allegations of error raised in
the case allows judges to make a more solid decision, one that isnt as affected by the decisions
of other judges.
To examine the roles of attorneys, both prosecutors and defense attorneys alike, in postconviction cases, the two first have to be split, as defense attorneys are usually the ones under the
microscope of the law for rendering ineffective assistance of counsel. Defense attorneys have to
be very cautious in their approach to any case, as they have to keep their clients best interests in
mind in order to render effective assistance. Where defense attorneys from trial are found to be
ineffective counsel through deficient acts, those acts are usually misinforming the defendant and
neglecting crucial information (Berdit, The Post-Conviction Handbook). A number of minor
errors can build up, and it becomes especially crucial when considering that defense attorneys
have a constitutional obligation to legally protect and defend their clients. Defense attorneys are,
by law, required to give the assistance of counsel that the defendant is entitled to by the Sixth
Amendment to the United States Constitution. They are required and expected to fulfill and
perform certain duties as defense attorneys, and the failure to do so provides grounds for
ineffective assistance of counsel and therefore post-conviction relief (State of Maryland v.

Sands). The possibility of being accused of rendering ineffective assistance of counsel is very
present in the mind of any defense attorney, who not only has to make sure his legal work is
sufficient, but that his legal work will defeat that done by the prosecutor.
Although prosecutors cannot be accused of administering ineffective assistance of
counsel, they can be post-convicted for prosecutorial misconduct. Such an accusation can
include a number of illegal actions, such as committing perjury, hiding perjury, burying evidence,
and other unethical practices (The Post-Conviction Handbook). Serious actions undertaken by
prosecutors that could change the course of the petitioners original trial are grounds for granting
post-conviction relief. At the same time, prosecutors have a different role in what goes on with
post-conviction petitions. If, at trial, a defense attorney is not making the proper strategic
decision in terms of legal action, or is making a clear error, a prosecutor will often make an effort
to aid them, even if it means hurting their own case. In a post-conviction hearing, the goal of the
prosecutor is to disprove the allegations of the petitioner, which is completely different from
what can happen at a trial (Duclaux). To do so, a prosecutor has to show that the petitioners
arguments lack merit. For an example, proving that trial counsel had a strategic purpose in
choosing not to contact an alibi witness would discredit a petitioners claim for ineffective
assistance of counsel on that issue. A prosecutor is a bit of a chameleon, depending on what their
ultimate goal is while in the courtroom. A prosecutor can make his own legal errors at trial and
become the basis for post-conviction relief to the petitioner in doing so. He can also avoid
disaster, like the need for a retrial resulting from post-conviction relief based on ineffective
assistance of counsel, by helping a defense attorney with trial strategies and legal tactics so to
prevent a petition for post-conviction relief from ever being filed. Or, if the prosecutor is
representing the state in an actual post-conviction hearing, he will pursue his goal of disproving
the allegations of error brought forth by the petitioner. Prosecutors serve an important purpose in

post-conviction cases, as they can make the case by committing prosecutorial misconduct, or
they can break it wide open by discrediting a petitioners allegations of merit, or through
preventing a petition from ever getting filed by making sure defense counsel doesnt render
ineffective assistance in the first place.
As Adnan Syeds post-conviction petition gets appealed and he gets a second hearing,
numerous other cases similar to his are processed through the Howard County Circuit Courts and
others throughout the country. For innocent petitioners like Adnan, the post-conviction process
means a second chance at justice. Courts are still exonerating prisoners years, even decades after
their initial sentencing and imprisonment, as justice is not always swift, nor is it always just.
and judges. Rowing Against the Tidewater revealed that the methods used at the Howard County
Circuit Court were in line with the findings, and it supported the stressed importance of the postconviction process found in A Broken System. One article, Facing Death Alone, talked about
how post-conviction relief has become increasingly unattainable due to a shortage of attorneys,
which was never mentioned prior to examination of the article, but it connected with the other
excerpts in its emphasis on the role of an effective attorney throughout the trial and post-trial as
well.
Works Cited
Berdit, Avery. Personal interview. 8 Dec. 2014.
Duclaux, Danielle. Personal interview. 4 Dec. 2014.
Funk, Stran. A Post Conviction Handbook. N.p.: Judicial Institute of Maryland, 2012. Print.
Koenig, Sarah, Dana Chivvis, and Julie Snyder, prod. "The Alibi." Episode #1. Serial. This
American Life, 3 Oct. 2015. Web. 7 Jan. 2015.
Koenig, Sarah, Julie Snyder, and Dana Chivvis, prod. "The Best Defense Is a Good Defense."
Episode #10. Serial. This American Life, 4 Dec. 2014. Web. 7 Jan. 2015.
Mello, Michael. "Facing Death Alone: The Post-Conviction Attorney Crisis of Death Row."
American University Law Review 37.513 (1988): 514-606. Print.

Post, David G., and Steven C. Salop. "Rowing against the Tidewater: A Theory of Voting by
Multi-Judge Panels." Georgetown Law Journal 80.3 (1992): 743-74. Print.
Sapia, Jaime L. Personal interview. 25 Nov. 2014.
State of Maryland v. Sands. No. 13-K-01-4104. 5th Cir. 18 Dec. 2014. Print.
Syed v. State of Maryland. 3d Cir. 14 Jan. 2015. Print.
Tucker, William V. Personal interview. 4 Dec. 2014.
Weathersbee, Lara. Personal interview. 17 Oct. 2014.