Syed v. Lee

Adnan Syed v. Young Lee, as Victim’s Representative, et al., No. 7, September Term, 2023.

Opinion by Biran, J.

APPELLATE JURISDICTION – MOOTNESS – ENTRY OF NOLLE PROSEQUI

AFTER VACATUR OF CONVICTION – The Supreme Court of Maryland held that the

entry of a nolle prosequi (“nol pros”) by the State’s Attorney did not moot the appeal by a

crime victim’s representative of an order vacating a defendant’s convictions under

Maryland Code, Criminal Procedure (“CP”) § 8-301.1 (2018 Repl. Vol., 2023 Supp.) (the

“Vacatur Statute”). The lawful vacatur of the defendant’s convictions was a condition

precedent to the State’s Attorney regaining the authority it had prior to entry of final

judgment to nol pros the charges. A prosecutor may not use the nol pros power to divest a

victim of the right to appeal what the victim contends is an unlawful vacatur order.

VICTIMS’ RIGHTS – MOTION TO VACATE – VICTIM’S RIGHT TO BE

HEARD – The Supreme Court held that a victim has the right to be heard at a vacatur

hearing. Although the Vacatur Statute itself does not reference a right to be heard at a

vacatur hearing, a more general victim’s rights statute, CP § 11-403, provides a right for a

victim to be heard at a hearing where the “alteration of a sentence” is considered, which

includes a vacatur hearing. In addition, Article 47 of the Maryland Declaration of Rights

mandates that the General Assembly implement a victim’s right to be heard at a criminal

justice proceeding where it is practicable to do so. 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. If, as is the case with CP § 8-301.1, there has not been a

legislative finding of impracticability, a reviewing court must consider whether the new

criminal justice proceeding is similar to one or more extant criminal justice proceedings

where the General Assembly has previously granted victims the right(s) that is missing

with respect to the new criminal justice proceeding. The Court held that a hearing where

the “alteration of a sentence” is considered is similar enough to a vacatur hearing to require

the provision of a right to be heard at the latter proceeding. The Court also held that a victim

has the right to be heard on the merits of a vacatur motion after hearing the parties’

presentations in support of the motion, including the right to speak through counsel if the

victim is represented by counsel. However, a victim does not have the right to participate

as a party at a vacatur hearing.

VICTIMS’ RIGHTS – MOTION TO VACATE – VICTIM’S RIGHT TO ATTEND

A VACATUR HEARING – The Supreme Court held that a victim has the right to attend

a vacatur hearing in person. A court must ensure that a victim receives a reasonable

opportunity to attend a vacatur hearing in person.

VICTIMS’ RIGHTS – MOTION TO VACATE – VICTIM’S RIGHT TO NOTICE

OF A VACATUR HEARING – The Supreme Court held that a victim has the right to

reasonable notice of a vacatur hearing. Reasonable notice is notice that is sufficient to

permit the victim to attend the hearing in person.

VICTIMS’ RIGHTS – NECESSARY SHOWING OF PREJUDICE – The Supreme

Court held that, in order for a victim to be entitled to a remedy, the victim must show that

an error prevented the victim from exercising their rights in a meaningful manner.

Circuit Court for Baltimore City

Case No.: 199103042

Argued: October 5, 2023

IN THE SUPREME COURT

OF MARYLAND

No. 7

September Term, 2023

ADNAN SYED

v.

YOUNG LEE,

AS VICTIM’S REPRESENTATIVE, ET AL.

Watts

*Hotten

Booth

Biran

Gould

Eaves

Battaglia, Lynne A.

(Senior Justice, Specially Assigned),

JJ.

Opinion by Biran, J.

Hotten, Booth, and Battaglia, JJ., dissent.

Filed: August 30, 2024

Pursuant to the Maryland Uniform Electronic Legal *Hotten, J., now a Senior Justice, participated in

Materials Act (§§ 10-1601 et seq. of the State the hearing and conference of this case while an

active member of this Court. After being

Government Article) this document is authentic.

2025.02.25 recalled pursuant to the Maryland Constitution,

14:59:44 -05'00' Article IV, § 3A, she also participated in the

Gregory Hilton, Clerk

decision.

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

2

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.

I

Background

A. Crime Victims’ Rights

The victim’s role in the criminal justice system has changed over the course of

history. In contrast to the criminal justice system as it exists in the United States today,

criminal justice systems in ancient times were marked by a lack of State involvement. See

Grey v. Allstate Ins. Co., 363 Md. 445, 451 (2001) (citing STEPHEN SCHAFER, THE VICTIM

AND HIS CRIMINAL 8 (1968)). In earlier periods, when a victim was harmed, the offender

or offender’s family would make personal reparations to the victim. Id. Both the Code of

Hammurabi and the Book of Exodus contained provisions for restitution from offenders to

victims, while the Twelve Tables, an early codification of Roman law, provided that an

offender “could avoid retribution to himself or his family by providing compensation to

the victim or the victim’s family.” Id. at 452. This restitution was viewed “more as

recompense for the damage or injury inflicted on the victim than as a punishment for an

offense against the State or the Sovereign.” Id. at 453. In England in the early Middle Ages,

it was common for a victim to organize a “crime patrol” to track down the offender,

physically punish him, and demand that he pay restitution. See Juan Cardenas, The Crime

Victim in the Prosecutorial Process, 9 Harv. J.L. & Pub. Pol’y 357, 359 (1986).

In colonial America, following English practice, private prosecutions were

common. See William F. McDonald, Towards a Bicentennial Revolution in Criminal

3

Justice: The Return of the Victim, 13 Am. Crim. L. Rev. 649, 651 (1976). Under a private

prosecution system, law enforcement was conducted by individual victims. Victims were

responsible for arresting their offenders and bore the burdens of investigation and

prosecution. See id. at 651-52. Upon a successful prosecution, the victim was entitled to

damages or, if the offender was indigent, the victim was often authorized to sell the

offender into service. Id. at 653.

Public prosecution became the predominant method of criminal law enforcement in

America after the Revolution. Id. at 661. This change was prompted by several factors,

including the popularity of Enlightenment notions of crime as a societal concern and the

increasing urbanization of American life, which made private prosecution impracticable.

See id. at 653-654; Cardenas, supra, at 369; Peggy M. Tobolowsky, Victim Participation

in the Criminal Justice Process: Fifteen Years After the President’s Task Force on Victims

of Crime, 25 New Eng. J. Crim. & Civ. Confinement 21, 26 (1999). Under the public

prosecution system, crime is “conceived of entirely in terms of an offense against

society[,]” and the criminal case “belongs solely to the state and public officials.”

McDonald, supra, at 650; see also 4 WILLIAM BLACKSTONE, COMMENTARIES 5 (1769)

(“[P]ublic wrongs, or crimes and misdeme[a]nors, are a breach and violation of the public

rights and duties, due to the whole community, considered as a community, in [its] social

aggregate capacity.”). In our country’s shift from private to public prosecution, the justice

system likewise shifted its focus from the interests of individual victims to the interests of

the larger society. Tobolowsky, supra, at 26.

4

However, beginning in the 1960s, the pendulum began to swing back toward

recognizing the interests of victims, with California becoming the first state to enact a

statute providing compensation to victims of violent crime in 1965. Frank Carrington &

George Nicholson, The Victims’ Movement: An Idea Whose Time Has Come, 11 Pepp. L.

Rev. (Symposium Issue) 1, 2 (1984). Throughout the 1970s, grassroots movements

promoted the victim’s role in the criminal justice system, and the victims’ rights movement

began to receive national attention in the 1980s. See Tobolowsky, supra, at 21-22. In 1982,

the President’s Task Force on Victims of Crime was established, and two pieces of national

victims’ rights legislation were enacted soon thereafter: the Omnibus Victim and Witness

Protection Act in 1982 and the Victims of Crime Act in 1984. Carrington & Nicholson,

supra, at 7-8; Paul G. Cassell, Treating Crime Victims Fairly: Integrating Victims into the

Federal Rules of Criminal Procedure, 2007 Utah L. Rev. 861, 866 (2007). Federal action

on the issue of victims’ rights continued with the Victims’ Rights and Restitution Act,

passed in 1990, and the Crime Victims’ Rights Act, passed in 2004. Cassell, supra, at

863-64, 866. This federal legislation, among other things, provided for victim impact

statements to be read at sentencing, provided a statutory right for victims to be notified of

and to attend court proceedings, and conferred standing on victims to assert their rights. Id.

at 866-67, 869-70.

At the same time, states were also taking action to recognize victims’ rights. By

1984, 39 states, the District of Columbia, and the U.S. Virgin Islands had approved

legislation for victim compensation. Carrington & Nicholson, supra, at 2. By 2007,

approximately 30 states had added victims’ rights amendments to their constitutions.

5

Cassell, supra, at 866. Maryland was no exception to these trends, as the General Assembly

began enacting victims’ rights legislation in the 1980s, and Maryland voters approved a

victims’ rights amendment to the Maryland Constitution in 1994.

At first, the rights the General Assembly granted to crime victims were somewhat

limited. For example, in 1982, the General Assembly passed legislation that required

presentence investigations to include a victim impact statement when a defendant

committed certain crimes that injured the victim. 1982 Md. Laws 3109-10 (ch. 494); see

also 1983 Md. Laws 1049 (ch. 297) (requiring consideration of presentence investigation

reports containing victim impact statements in cases where the death penalty is requested).

In 1986, the General Assembly broadened the ways in which a victim could be heard by

permitting victims to address the sentencing court or jury, or have a victim impact

statement read by the judge or jury, before the imposition of the sentence or at any hearing

to consider altering the sentence, upon request of the State’s Attorney and in the discretion

of the sentencing judge. See 1986 Md. Laws 669 (ch. 125), then codified at Md. Code, art.

27, § 761(12) (1957, 1987 Repl.). In the same legislation, the General Assembly also

established that a victim should “[b]e notified in advance of dates and times of trial court

proceedings,” “be notified if the court proceedings to which they have been summoned

will not proceed as scheduled[,]” and, upon written request, be notified of post-sentencing

proceedings. Id. at 667-68.

In the same time period, the General Assembly also enacted statutes concerning

victims’ attendance at criminal proceedings and subsequently broadened those provisions.

A 1985 statute provided that the victim of a crime of violence did not have to be sequestered

6

after testifying, but allowed judges to remove victims from trial “for cause.” 1985 Md.

Laws 2761-62 (ch. 563). In 1989, the General Assembly amended this provision and

established that a victim was “presumed to have the right to be present at the trial” and

could be sequestered from any part of the trial “only after a finding of good cause.” 1989

Md. Laws 3101 (ch. 486).

In 1994, the General Assembly passed, and Maryland voters overwhelmingly

approved, Article 47 of the Maryland Declaration of Rights. 1994 Md. Laws 1195-96 (ch.

102); see General Election Returns, Nov. 8, 1994, Constitutional Amendments, Question

1 (reporting 1,072,914 votes in favor of the victims’ rights amendment, compared with

87,861 votes against the measure, i.e., 92.4 percent voted in favor of the amendment),

available at https://perma.cc/56YT-HJP4. We have previously described this constitutional

amendment as having “establishe[d] a crime victims’ bill of rights[.]” Cianos v. State, 338

Md. 406, 413 (1995). Article 47 first mandates that crime victims “shall be treated by

agents of the State with dignity, respect, and sensitivity during all phases of the criminal

justice process.” Md. Decl. of Rts. art. 47(a). It then provides victims the right, “upon

request and if practicable, to be notified of, to attend, and to be heard at a criminal justice

proceeding, as these rights are implemented and the terms ‘crime’, ‘criminal justice

proceeding’, and ‘victim’ are specified by law.” Md. Decl. of Rts. art. 47(b). Shortly after

Article 47 was ratified by Maryland’s voters, this Court summed up the reasons for the

various victims’ rights provisions that had been enacted up to that point: “It is clear that

over the past several decades the Legislature has had growing concerns that victims of

7

crime are often neglected by the criminal justice system in the processing of criminal

cases.” Cianos, 338 Md. at 412.

In the Victims’ Rights Act of 1997 (the “VRA”), the General Assembly made

significant changes to Maryland’s victims’ rights laws. See 1997 Md. Laws 2262-2313 (ch.

312). The purpose of the VRA was to “expand[] the scope of current provisions relating to

victims of crimes.” Dep’t of Fiscal Servs., Fiscal Note, Senate Bill 173, at 1 (1997 Sess.).

For example, prior to the VRA, only a victim of a crime of violence or a crime that resulted

in serious injury and who had testified as a witness (or the representative of a victim, if the

victim was deceased or disabled by a crime of violence or a crime resulting in serious

injury) was presumed to have the right to attend the alleged perpetrator’s trial. See 1989

Md. Laws 3100-01 (ch. 486); 1996 Md. Laws 3324 (ch. 585). The VRA expanded this

right, defining a “victim” as “any person against whom a crime or delinquent act has been

committed or attempted[,]” and establishing that any victim who has filed a notification

request form “shall have the right to attend, if practicable, any proceeding in which the

defendant has the right to appear.” 1997 Md. Laws 2267, 2304 (ch. 312).

The VRA also implemented Article 47’s right to be heard, providing in pertinent

part: “In the sentencing or disposition hearing of a criminal or juvenile case, the court …

shall, if practicable, permit the victim or victim’s representative under oath or affirmation

to address the judge before the imposition of sentence or other disposition … if the victim

has filed a notification request form[.]” 1997 Md. Laws 2275 (ch. 312), then codified at

Md. Code, art. 27, § 780(b)(1)(ii) (1957, 1996 Repl., 1997 Supp.). This provision defined

a “sentencing or disposition hearing” as “a hearing at which the imposition of a sentence,

8

disposition in a juvenile delinquency proceeding, or alteration of a sentence or disposition

in a juvenile delinquency proceeding is considered.” Id., then codified at Md. Code, art.

27, § 780(a)(2). Previous legislation had made the ability of a victim to address the

sentencing judge or jury before the imposition of a sentence subject to “the request of the

State’s Attorney and in the discretion of the sentencing judge” and was applicable only to

cases “resulting in serious physical injury or death[.]” 1996 Md. Laws 3330 (ch. 585), then

codified at Md. Code, art. 27, § 780 (1957, 1996 Repl.); see also Judiciary Comm., Bill

Analysis, Senate Bill 173, at 3 (1997 Sess.) (noting that, “[u]nder current law, victims and

their representatives may address the sentencing judge or jury in cases resulting in serious

physical injury or death”).

Title 11 of the Criminal Procedure Article now contains a number of broadly

applicable victims’ rights provisions. CP § 11-403 provides essentially the same right to

be heard at sentence-related hearings that was first enacted as part of the VRA: “[T]he

court, if practicable, shall allow the victim or the victim’s representative to address the

court under oath before the imposition of sentence or other disposition[.]” Id. § 11-403(b).

This right applies at hearings “at which the imposition of a sentence ... or alteration of a

sentence ... is considered.” Id. § 11-403(a).

CP § 11-102 and § 11-302 concern the right to attend proceedings. Under CP

§ 11-102, “[i]f practicable, a victim or victim’s representative who has filed a notification

request form under § 11-104 of this subtitle has the right to attend any proceeding in which

the right to appear has been granted to a defendant.” Id. § 11-102(a). Under CP § 11-302,

victims and their representatives have the right to attend the trial of the defendant, may

9

continue attending after initially testifying at trial, and can be sequestered only after a

finding that there is reason to believe they may testify at a later point in the trial and that

their presence would influence their future testimony in a way that would materially affect

the defendant’s right to a fair trial. See id. § 11-302(c), (d). The court also may remove a

victim or victim’s representative from the trial for the same causes and in the same manner

as the law provides for the exclusion or removal of the defendant. Id. § 11-302(e).

CP § 11-104 and § 11-503 concern the right to be notified of proceedings. “Unless

provided by the MDEC system,[1] the prosecuting attorney shall send a victim or victim’s

representative prior notice of each court proceeding in the case[.]” Id. § 11-104(f). 2 A

victim or victim’s representative also has the right to notice of a “subsequent proceeding,”

including “a hearing on a request to have a sentence modified or vacated under the

Maryland Rules” or “any other postsentencing court proceeding.” Id. § 11-503(a)(2) &

(a)(7). 3

MDEC is the electronic case management processing and record-keeping system

1

used in the State of Maryland’s court system. Attorney Grievance Comm’n v. Weinberg,

485 Md. 504, 540 n.22 (2023).

2

A victim must have filed a notification request form or followed the MDEC system

protocol to be entitled to notice of court proceedings. See CP § 11-104(e)(3). However,

whether or not a victim has filed a notification form or followed the MDEC system

protocol, the prosecutor may give the victim information about the status of the case if the

victim asks for such information. Id. § 11-104(f)(4). Victim notification request forms are

not at issue in this case.

3

As Ms. Lee’s brother, Mr. Lee is acting as the crime victim’s representative in this

case. See CP § 11-104(a)(5); id. § 11-401. Maryland law generally provides the same rights

to a crime victim’s representative as it does to a victim. See, e.g., id. § 11-102(a) (giving

right to attend proceeding to a victim or victim’s representative); id. § 11-403(b) (giving

right to address the court to a victim or victim’s representative); id. § 11-104(f) (victim or

10

B. The Vacatur Statute and Implementing Rule

In 2019, the General Assembly enacted CP § 8-301.1 (the “Vacatur Statute”). 2019

Md. Laws 4084 (ch. 702). The legislative history of the Vacatur Statute indicates that its

enactment was a response to two recent developments: the decriminalization of marijuana,

see House Bill 874, Bill Summary at 2-3 (2019 Sess.), and revelations concerning

misconduct of the Baltimore Police Department’s Gun Trace Task Force. See House Bill

874, Floor Rep. at 4-5 (2019 Sess.). These developments led the General Assembly to

create a post-conviction remedy that a prosecutor may invoke to vacate convictions, as an

alternative to requiring convicted defendants to seek relief through other procedures. See

id. at 2-3.

The Vacatur Statute allows a court with jurisdiction, upon the State’s motion at any

time after the entry of a judgment of conviction in a criminal case, to vacate the conviction

if two conditions are met. First, “there is newly discovered evidence that ... could not have

been discovered by due diligence in time to move for a new trial under Maryland Rule

4-331(c)” and the newly discovered evidence “creates a substantial or significant

probability that the result would have been different”; or “the State’s Attorney received

new information after the entry of a … judgment of conviction that calls into question the

victim’s representative entitled to prior notice of each court proceeding). Going forward in

this opinion, for the sake of readability, at times we will use the term “victim” when

referring to a person to whom Maryland law provides rights either as a crime victim or as

a victim’s representative.

11

integrity of the … conviction[.]” CP § 8-301.1(a)(1). Second, “the interest of justice and

fairness justifies vacating the … conviction.” Id. § 8-301.1(a)(2). 4

The State must file a motion to vacate in writing. Id. § 8-301.1(b)(1). The motion

must “state in detail the grounds on which the motion is based” and, where applicable,

“describe the newly discovered evidence[.]” Id. § 8-301.1(b)(2) & (b)(3). The motion must

contain or be accompanied by a request for a hearing. Id. § 8-301.1(b)(4).

The court may dismiss a motion to vacate without a hearing if the court finds that

the motion fails to assert grounds on which relief may be granted. Id. § 8-301.1(e)(2).

Otherwise, the court must hold a hearing on the motion. The Vacatur Statute states that,

before such a hearing, “the victim or victim’s representative shall be notified, as provided

under § 11-104 or § 11-503 of this article.” Id. § 8-301.1(d)(1). 5 In addition, the statute

provides that a victim “has the right to attend a hearing on a motion filed under this section,

as provided under § 11-102 of this article.” Id. § 8-301.1(d)(2). 6 The Vacatur Statute does

not mention a victim’s right to be heard at a vacatur hearing.

4

A court also may vacate a probation before judgment if these same two conditions

are met. See CP § 8-301.1(a).

5

As mentioned above, CP § 11-104(f) requires that the prosecuting attorney send a

victim prior notice of each court proceeding in the case (unless the victim receives such

notice through MDEC). And CP § 11-503(a)(2) & (a)(7) provides a victim with the right

to notice of a “subsequent proceeding,” including “a hearing on a request to have a sentence

modified or vacated under the Maryland Rules” or “any other postsentencing court

proceeding.”

6

As stated above, CP § 11-102 provides that, if practicable, a victim who has filed

a notification request form under CP § 11-104 has the right to attend any proceeding in

which the right to appear has been granted to a defendant. CP § 11-102(a).

12

At the hearing, the State has the burden of proof. Id. § 8-301.1(g). In ruling on the

motion to vacate, “the court, as the court considers appropriate,” may either vacate the

conviction or deny the motion. Id. § 8-301.1(f)(1). The court “shall state the reasons for a

ruling under this section on the record.” Id. § 8-301.1(f)(2).

In 2019, the Standing Committee on Rules of Practice and Procedure proposed, and

this Court adopted, Maryland Rule 4-333, which implements the Vacatur Statute (the

“Vacatur Rule”). Among other things, the Vacatur Rule specifies that notice to a victim

must: (1) be in writing; (2) contain a brief description of the proceeding; (3) inform the

victim of the date, time, and location of the hearing; and (4) inform the victim of their right

to attend the hearing. Md. Rule 4-333(g)(2). After setting forth provisions related to the

conduct of a vacatur hearing, the Vacatur Rule cross-references CP § 11-403, which, as

discussed above, gives victims the right to be heard at sentence-related proceedings:

“Cross reference: For the right of a victim or victim’s representative to address the court

during a sentencing or disposition hearing, see [CP] § 11-403.” Md. Rule 4-333(h).

C. This Case

1. Procedural History: 1999-2019

On February 9, 1999, the body of Hae Min Lee was discovered buried in Leakin

Park in Baltimore City. 7 Ms. Lee’s ex-boyfriend, Petitioner/Cross-Respondent Adnan

Syed, was eventually charged with first-degree murder and related crimes. The State’s key

7

The underlying facts and proceedings have been detailed in prior opinions. See,

e.g., Syed v. State, 236 Md. App. 183 (2018), rev’d, 463 Md. 60 (2019). We will not repeat

them at length here.

13

witness at Mr. Syed’s trial in the Circuit Court for Baltimore City was Jay Wilds, who

testified, among other things, that Mr. Syed confessed to him that he had murdered Ms.

Lee and that he (Mr. Wilds) assisted Mr. Syed in burying Ms. Lee’s body in Leakin Park.

See Syed v. State, 236 Md. App. 183, 200, 202-03 (2018), rev’d, 463 Md. 60 (2019). The

State also introduced records which, according to the State, showed that Mr. Syed’s

cellphone received an incoming call around the time that Mr. Wilds testified he and Mr.

Syed were burying Ms. Lee’s body, and that this call registered with a cell tower which

was the strongest cell site for the location of Ms. Lee’s body in Leakin Park. See id. at 203.

Mr. Syed’s palm print was found on the back cover of a map book found inside Ms. Lee’s

abandoned vehicle. Id. at 205. The map showing the location of Leakin Park had been

removed from the map book; that torn out piece was found in the rear seat area of Ms.

Lee’s car. Id.

On February 25, 2000, Mr. Syed was convicted of first-degree murder, kidnapping,

robbery, and false imprisonment. Mr. Syed was sentenced to life in prison plus 30 years.

The Appellate Court of Maryland affirmed Mr. Syed’s convictions in an unreported

opinion. Syed v. State, No. 923, Sept. Term, 2000 (filed March 19, 2003), cert. denied, 376

Md. 52 (2003).

In 2010, Mr. Syed filed a petition for post-conviction relief. He alleged ineffective

assistance of counsel concerning his trial, sentencing, and appeal. The post-conviction

court initially denied Mr. Syed’s petition. Mr. Syed then filed an application for leave to

appeal, which the Appellate Court granted. The Appellate Court subsequently granted Mr.

Syed’s request for a remand to consider a newly obtained affidavit from a potential alibi

14

witness. On remand, the post-conviction court granted Mr. Syed a new trial. The State then

filed an application for leave to appeal, and Mr. Syed filed a conditional cross-application

for leave to appeal, both of which were granted. In 2018, the Appellate Court affirmed the

grant of a new trial. Syed v. State, 236 Md. App. 183 (2018). After granting the State’s

petition for writ of certiorari, this Court reversed the judgment of the Appellate Court and

held that Mr. Syed was not entitled to a new trial. State v. Syed, 463 Md. 60 (2019).

2. The Motion to Vacate Mr. Syed’s Convictions

The Joint Investigation

In 2021, Erica Suter, Mr. Syed’s current counsel, approached Assistant State’s

Attorney Becky Feldman about pursuing a Juvenile Restoration Act motion on behalf of

Mr. Syed. 8 The discussions between Ms. Feldman and Ms. Suter eventually led them to

conduct a joint investigation concerning the integrity of Mr. Syed’s convictions. As part of

that investigation, on March 10, 2022, the State and Mr. Syed filed a Joint Petition for Post-

Conviction DNA Testing of Ms. Lee’s clothing, using procedures that were unavailable at

the time of Mr. Syed’s trial. In addition, on May 12, 2022, Ms. Feldman requested Mr.

Syed’s trial file from the Maryland Attorney General’s Office. In the course of reviewing

the State’s trial file, Ms. Feldman discovered what she believed to be exculpatory

information in the form of two handwritten documents that detailed two separate

8

The Juvenile Restoration Act (“JRA”), CP § 8-110, allows certain individuals to

file a motion for a sentence reduction. To qualify for potential relief under the JRA, an

individual must have been: (1) convicted as an adult for an offense committed when the

individual was a minor; (2) sentenced for the offense before October 1, 2021; and

(3) imprisoned for at least 20 years for the offense. Id. § 8-110(a).

15

interviews. According to Ms. Feldman, these interviews included information concerning

two suspects other than Mr. Syed who had a possible motive to harm Ms. Lee. Ms. Feldman

informed Ms. Suter of the discovered documents. Ms. Suter told Ms. Feldman that copies

of the two documents were not in the defense file and that nothing in the defense file

resembled in any way the information contained in the two documents.

The Vacatur Motion

On September 12, 2022, Ms. Feldman informed Ms. Lee’s brother,

Respondent/Cross-Petitioner Young Lee, that the State would be filing a motion to vacate

Mr. Syed’s convictions. Ms. Feldman was aware that Mr. Lee lived in California. In a

telephone conversation on September 13, Ms. Feldman reviewed the motion with Mr. Lee

and told him that there would be a hearing on the motion to vacate. She also provided her

contact information to Mr. Lee. Ms. Feldman followed up with Mr. Lee via email on the

afternoon of September 13:

Attached is a draft of the motion that we are likely filing tomorrow. The

motion outlines the information we uncovered about the alternative suspects.

I am happy to share with you the status of the investigation as we move

forward. Of course, if you have any questions, please do not hesitate to reach

out to me at any time.

Mr. Lee replied to Ms. Feldman’s email later on September 13:

To be clear, [a]s a family we disagree with your course of action and stand

against the motion to vacate judgement [sic]. We believe that there is

overwhelming evidence, and the court convicted the right person.

I hope you understand the emotional turbulence this trial is causing us. It

seems there is never an end to it. But we understand your position as an

attorney to do due diligence and cover all possibilities.

16

On September 14, Ms. Feldman replied by email: “I very much understand your family’s

position. I am so sorry for the pain this case is causing you.” Ms. Feldman “promise[d] to

keep [Mr. Lee] updated with all new developments.”

The State’s Attorney, through Ms. Feldman, filed the motion to vacate Mr. Syed’s

convictions in the Circuit Court for Baltimore City on September 14, 2022 (the “Vacatur

Motion”). In the Vacatur Motion, Ms. Feldman asserted that the State’s Attorney’s Office

had received new information after the entry of Mr. Syed’s judgment of conviction that

calls into question the integrity of the conviction, and that the State therefore was

proceeding under CP § 8-301.1(a)(1)(ii). Specifically, Ms. Feldman represented: “[T]he

parties have uncovered Brady[9] violations and new information, all concerning the possible

involvement of two alternative suspects. Additionally, the parties have identified

significant reliability issues regarding the most critical pieces of evidence at trial.”

With respect to the alternative suspects, the motion recited:

The parties have developed evidence regarding the possible

involvement of two alternative suspects…. In the State’s reinvestigation of

this matter, new information was learned about these individuals that suggest

motive and/or propensity to commit this crime. However, in order to protect

the integrity of the on-going investigation, the names of the suspects, which

suspect in particular, and the specific details of the information obtained will

not be provided at this time.

The motion further explained:

The State located a document in the State’s trial file, which provided

details about one of the suspects. A person provided information to the State

9

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that “the

suppression by the prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or to punishment, irrespective of

the good faith or bad faith of the prosecution.”

17

that one of the suspects had a motive to kill the victim, and that suspect had

threatened to kill the victim in the presence of another individual. The suspect

said that “he would make her [Ms. Lee] disappear. He would kill her.”

The State also located a separate document in the State’s trial file, in

which a different person relayed information that can be viewed as a motive

for that same suspect to harm the victim.

This information about the threat and motives to harm could have

provided a basis for the defense to present and/or bolster a plausible

alternative theory of the case at trial. Due to the on-going investigation,

further details of this information will not be provided at this time.

The motion stated “that considering the totality of evidence now available, the information

about an alternative suspect would have been helpful to the defense because it would have

helped substantiate an alternative suspect defense that was consistent with the defense’s

strategy at trial.”

Ms. Feldman further recited that, in 2022, the State’s Attorney’s Office discovered

“[t]hrough investigation of property records and other media” that the location where Ms.

Lee’s car was found in Baltimore City was known to one of the alternative suspects, that a

“person related to the family” owned a house near that location for many years, and “[t]hat

person lived at that location in 1999.”

In addition, according to the motion, the defense “located formally-documented

evidence unavailable at the time of the trial, that one of the suspects had, without

provocation or excuse, attacked a woman unknown to him while she was in her vehicle.”

The State further recited that this incident occurred after Mr. Syed’s trial and that the

suspect “was convicted of this offense.” Further, the motion stated that the parties had

“obtained credible information that one of the suspects had engaged in multiple instances

18

of rape and sexual assault of compromised or vulnerable victims in a systematic, deliberate

and premeditated way” and that the “suspect was convicted of this offense[,]” which also

occurred after Mr. Syed’s trial.

The motion further stated that the defense “located formally-documented evidence

of allegations that one of the suspects had engaged in aggressive and/or violent acts toward

a woman known to him and forcibly confined her. It was also alleged that this suspect made

threats against the life of this person.” According to the motion, “[t]hese events happened

prior to the trial in this case, and this information was known to the State. Given the

circumstances of [Ms. Lee’s] death, this evidence would have been consequential to the

defense’s theory of the case.”

The motion also recounted that police had improperly cleared one of the suspects in

the course of the initial investigation as a result of errors in administering and interpreting

polygraph tests that were administered to the suspect. The motion also pointed to

discrepancies between Mr. Wilds’s statements to police and his trial testimony, and

expressed concerns about the reliability of the incoming cellphone records upon which the

State had relied at trial.

The motion made clear that the State’s Attorney was not then asserting that Mr.

Syed was innocent, but rather that it no longer had confidence in the integrity of the

convictions and that Mr. Syed, at a minimum, should be afforded a new trial.

Later on September 14, 2022, Mr. Syed filed a response to the Vacatur Motion in

which he joined in the State’s Attorney’s request for relief.

19

The September 16 Hearing in the Court’s Chambers

On the afternoon of Friday, September 16, 2022, the circuit court held an off-the-

record, in camera hearing in the court’s chambers. Ms. Feldman and Ms. Suter were

present at this hearing. Mr. Lee received no notice of the in camera hearing and,

consequently, did not request to attend it. At the in camera hearing, Ms. Feldman and Ms.

Suter provided the court with copies of the two documents that the State’s Attorney’s

Office believed contained Brady material, neither of which was included with the Vacatur

Motion or otherwise placed in the record. The record indicates that the date and time for

an in-court hearing on the Vacatur Motion – the following Monday, September 19, at 2:00

p.m. – was also set during this hearing in the court’s chambers.

The Prosecutor’s Communications with Mr. Lee Following the Scheduling of the

September 19 In-Person Hearing

At 1:59 p.m. EDT on Friday, September 16 – immediately following the hearing in

chambers – Ms. Feldman emailed Mr. Lee:

The court just scheduled an in-person hearing for Monday, September 19th

at 2:00 PM (EST). It’s an in-person hearing, but I asked the court for

permission for you and your family to watch the proceedings virtually (if you

would like). So, if you would like to watch, the link is below. Please let me

know if anybody from your family will be joining the link, so I will make

sure the court lets you into the virtual courtroom.... Please let me know if you

have any questions.

Mr. Lee did not respond to this email. Because Ms. Feldman did not receive a reply

from Mr. Lee, she texted him at 1:22 p.m. EDT on the afternoon before the hearing,

Sunday, September 18, 2022: “Just wanted to make sure you got my email about the

hearing schedule[d] for tomorrow. I sent a video link in case you want to watch.” Mr. Lee

20

responded to Ms. Feldman’s text message at 4:08 p.m. on September 18: “Yes, I got the

email. I will be joining. Thank you.”

The Motion to Postpone the September 19 Hearing

At approximately 6:00 p.m. EDT on Sunday, September 18, Mr. Lee retained

counsel in connection with the Vacatur Motion. On Monday, September 19, Mr. Lee’s

attorneys entered their appearances in the case. At the same time, Mr. Lee, through counsel,

filed a motion for postponement and demand for rights. In his motion, Mr. Lee requested

that the hearing on the Vacatur Motion be postponed seven days to allow him and his family

to travel to Baltimore from their residence in California. Mr. Lee explained: “Based on the

potentially dispositive nature of this hearing and the right of victims and surviving families

to meaningfully participate in such proceedings, the family wishes to be physically present

at the in-person hearing. The notice provided was patently insufficient to permit that to

happen.” Mr. Lee also asserted that even if he and his family had been able to attend that

day in person, they “could not meaningfully participate and be heard” because Ms.

Feldman had not disclosed the factual basis supporting the Vacatur Motion and because

the motion did not name any alternate suspects.

The September 19 Hearing

On the afternoon of Monday, September 19, the circuit court conducted the in-court

hearing on the Vacatur Motion (the “Vacatur Hearing”). Mr. Syed, members of his family,

members of the press, and spectators attended the Vacatur Hearing in person, as did Mr.

Lee’s counsel, Steven Kelly. Mr. Lee did not attend the hearing in person. After the court

was called to order, the court asked Ms. Feldman to state “specifically what notice the State

21

gave to the victim’s family in this case[.]” After explaining that “counsel and I met with

[the court] on Friday and the hearing was scheduled for today[,]” Ms. Feldman advised the

court of her communications with Mr. Lee by email and text on the preceding Friday and

Sunday. She also explained that she had provided Mr. Lee with a copy of the Vacatur

Motion prior to its filing. The court subsequently asked Ms. Feldman: “Now, attendance,

as far as your understanding from the victim’s family, the attendance was going to be done

how?” Ms. Feldman responded: “So I did not know until he texted me back yesterday

whether he was going to attend via Zoom and he indicated that he would. He had not

indicated to me that he wished to travel to be here today.”

The court then asked if Mr. Lee was “on the Zoom[.]” Hearing no response from

Mr. Lee, the court then heard from Mr. Kelly. He asserted that the notice given to Mr. Lee

on Friday afternoon was “patently unreasonable” in that it provided no opportunity for Mr.

Lee to be present. Mr. Kelly also objected to Mr. Lee’s lack of “meaningful participat[ion]

in this proceeding.” Mr. Kelly further complained about the State’s “failing also to give

any kind of notice as to what it is that has caused the concern on the part of the State’s

Attorney’s Office” regarding the validity of Mr. Syed’s convictions. Mr. Kelly reiterated

that Mr. Lee was seeking a seven-day postponement so that Mr. Lee could attend the

hearing in person and meaningfully participate in the hearing.

The court responded by noting that “electronic proceedings are allowed in the

Circuit Court for any Circuit Court. And we do them here every day.” The court continued:

“I was told that [Mr. Lee] lived in California and that [he] would be present by Zoom. Now,

it appears that since Friday, Mr. Lee has changed his mind. And … he wishes to be present

22

here in Baltimore City for this hearing.” The court also stated that it saw no basis in the

statutes and rules Mr. Lee had cited in his motion to conclude that “the victim’s family

would have a right to be heard” at the hearing. However, the court immediately continued:

“Now, of course, if Mr. Lee was present today on the Zoom and he wanted to speak, I

would allow him to speak.”

Mr. Kelly then confirmed that Mr. Lee would travel to Baltimore for the hearing if

it were postponed for seven days, after which the court stated:

Wait a minute. Are you not aware that him – by him telling us on Friday that

he was going to appear via Zoom is why we set this hearing today? Because

had we known that on Friday then, of course, we would have scheduled this

hearing according to when he was planning to arrive within a reasonable

amount of time. So he didn’t do that.

Mr. Kelly responded that Mr. Lee “did not state on Friday at any time that he would

participate.” Mr. Kelly acknowledged that, in a text to Ms. Feldman at 4:08 p.m. on Sunday,

Mr. Lee had said he would participate by Zoom. But, Mr. Kelly continued, that was shortly

before Mr. Lee retained Mr. Kelly to represent him. Mr. Kelly observed that Mr. Lee “is

not a lawyer and he has every right to be counseled by an attorney as to his rights and then

to act accordingly.” The circuit court responded:

Well, you did see the confusion? … Mr. Lee told the State through text that

he would participate by Zoom. Now, counsel and I have been in close

communication about this case procedurally since Friday. So had he told Ms.

Feldman that he didn’t want to participate via Zoom and wanted to be in

person, she would have communicated that to me and then we would have

taken the appropriate steps.

23

Mr. Kelly then asserted that what Mr. Lee had received was “not adequate notice

under Maryland law.” The court replied, “Nothing says that it has to be a [particular 10] time

period. It says notice…. In 8-301.1, which is the statute for motion to vacate it says notice.

It doesn’t have anything about reasonable notice.” Mr. Kelly responded that

“reasonableness is a standard that’s been long applied by the Maryland Supreme Court”

and reiterated that “one day’s notice is [not] adequate.” According to Mr. Kelly, Ms.

Feldman had an affirmative obligation to apprise Mr. Lee that he had a right to participate

in the hearing beyond observing, and that she failed to do so.

Mr. Kelly further argued that, under CP § 11-403, Mr. Lee had a right to speak at

the hearing. The circuit court disagreed, stating that § 11-403 “has to do with sentencing

or disposition hearings. That’s not what this is…. This is a motion to vacate.”

The court denied Mr. Lee’s motion for a postponement, but allowed Mr. Kelly time

to have Mr. Lee join the hearing by Zoom. Mr. Kelly then called Mr. Lee, following which

he reported to the court that Mr. Lee was at work, but “would just request 30 minutes to

get home and to a private place where [he] can participate.” The court granted that

accommodation and recessed the hearing.

The proceedings resumed 50 minutes later. At that time, the court said to Mr. Lee,

who was watching the proceedings by Zoom: “You’re here today to make a statement and

the Court is ready to hear from you.” Mr. Lee thanked the court for the opportunity to speak

10

The transcript of the hearing at this spot refers to “a participate time period.” We

assume that this is a transcription error, and that the court referred to “a particular time

period.”

24

and then described how he had “been living with this for 20 plus years and every day when

I think it’s over … [i]t always comes back. And it’s not just me, killing me and killing my

mother and it’s really tough … just going through this again and again and again…. [I]t’s

living a nightmare over and over again.” He said that he believed the State had done a “fine

job of prosecuting Mr. Syed” and that he “always thought the State was on [his] side” but

now felt “betrayed” by the Vacatur Motion. He further stated that he was not “against an

investigation” but that the Vacatur Motion was “really tough for [him] to swallow[.]” Mr.

Lee noted that he had wanted to make his statement “in person, but … didn’t know [he]

had the opportunity[.]”

After Mr. Lee finished speaking, the court said it was “mindful how difficult this

day is for you” and that it appreciated Mr. Lee “joining the Zoom this afternoon to make

this statement because it is important to hear from the victim or the victim’s

representative.” After Mr. Lee thanked the court, Mr. Kelly requested permission to “just

say a couple of sentences[.]” The court declined Mr. Kelly’s request, stating that it did not

“think that’s appropriate at this time, sir. We’ve heard from the victim and I heard from

you earlier.”

The court then said that it was “satisfied that all the requirements under … Criminal

Procedure 8-301.1 [have] been met by the State, therefore, the hearing will commence

now.” The court then heard from Ms. Feldman. In addition to repeating the information

contained in the Vacatur Motion, Ms. Feldman stated:

What is unusual in this case, unlike all of the other motions to vacate

my office has filed in the past, is that should this motion be granted, we will

25

be continuing our investigation and we will not be asking the Court to dismiss

the case at this time. Instead, we are requesting that a trial be set in.

The State’s ultimate decision to proceed with a new trial or ultimately

dismiss the case is contingent upon the results of the ongoing investigation.

However, the State is requesting the defendant be released on his own

recognizance, pending the investigation, should the Court grant this motion.

Ms. Feldman did not introduce into evidence the alleged Brady material that the parties

had provided to the circuit court during the in camera hearing on September 16.

After Ms. Suter made brief remarks, the court read the text of an order granting the

Vacatur Motion. Next, the court stated: “At this time, we will remove the shackles from

Mr. Syed, please.” After a pause to allow the unshackling to occur, the court continued:

“All right. Ladies and gentlemen, it is my understanding that the State and all counsel will

hold a press conference outside the courthouse this afternoon. So I will, at this time, …

excuse the press to go down first.” After the press and spectators left the courtroom, the

court directed a person who was present in the courtroom to apply an ankle transmitter to

Mr. Syed for purposes of electronic monitoring. The hearing then concluded.

The court entered a written order granting the motion to vacate (the “Vacatur

Order”) later in the afternoon on September 19. The Vacatur Order stated, in part:

Upon consideration of the papers, in camera review of evidence,

proceedings, and oral arguments of counsel made upon the record, the Court

finds that the State has proven grounds for vacating the judgment of

conviction in the matter of Adnan Syed. Specifically, the State has proven

that there was a Brady violation…. Additionally, the State has discovered

new evidence that could not have been discovered by due diligence in time

for a new trial under Md. Rule 4-331(c) and creates a substantial or

significant probability that the result would have been different.

26

The Vacatur Order further stated that Mr. Syed was to be released on his own recognizance

and placed on home detention with GPS monitoring. The Vacatur Order also directed “that

the State shall schedule a date for a new trial or enter nolle prosequi of the vacated counts

within 30 days of the date of this Order.”

3. Mr. Lee’s Notice of Appeal and Motions to Stay

On September 28, 2022, Mr. Lee noted an appeal of the Vacatur Order. On

September 29, 2022, Mr. Lee filed in the circuit court a motion to stay the proceedings in

the circuit court pending appeal. Mr. Lee also filed a motion in the Appellate Court of

Maryland to stay the circuit court proceedings pending appeal. On October 6, 2022, Mr.

Syed filed a notice in the circuit court stating that he intended to file a response to Mr.

Lee’s motion to stay.

4. The Entry of the Nol Pros

On October 11, 2022, after DNA testing of items of Ms. Lee’s clothing yielded a

mixed profile from which Mr. Syed was excluded as a contributor, the State’s Attorney

entered a nol pros of Mr. Syed’s vacated charges.

5. Appeal

On October 12, 2022, the Appellate Court denied Mr. Lee’s motion to stay and

ordered Mr. Lee to show cause why the appeal should not be dismissed as moot. 11 The

parties filed responses to the show cause order, and on November 4, 2022, the Appellate

Court ordered that the appeal would proceed.

11

Also on October 12, 2022, the circuit court denied Mr. Lee’s motion to stay the

proceedings pending appeal, concluding that the nol pros rendered the motion moot.

27

The Appellate Court subsequently issued a reported opinion in which it vacated the

Vacatur Order, reinstated Mr. Syed’s convictions, and ordered a remand for a new vacatur

hearing. Lee v. State, 257 Md. App. 481, 550 (2023). The panel Majority first held that Mr.

Lee’s appeal was not moot because the nol pros “was entered with the purpose or necessary

effect of preventing Mr. Lee from obtaining a ruling on appeal regarding whether his rights

as a victim’s representative were violated.” Id. at 526 (internal quotation marks and

citations omitted). According to the Majority, “[t]his 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.’” Id. (quoting State v. Casey, 44 P.3d 756, 764

(Utah 2002)). The Majority continued: “[T]he State of Maryland has given constitutional

and statutory rights to crime victims, and the State’s Attorney should not be allowed to

thwart those rights in the way that happened in this case. The nol pros entered under the

circumstances of this case violated Mr. Lee’s right to be treated with dignity and respect.”

Id. at 526-27. The Majority concluded that, “[b]ecause the nol pros was void, it was a

nullity, and it does not render this appeal moot.” Id. at 527.

On the merits, the Majority held that the circuit court erred in finding that Mr. Lee

received sufficient notice of the Vacatur Hearing. The Majority concluded that “the State’s

notice here, an email 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.” Id. at 537. Next, the Majority held that Mr. Lee’s right to

attend the hearing was violated because he was functionally required to attend remotely.

The Majority concluded that the circuit court “erred and/or abused its discretion in failing

28

to grant a postponement and in finding that Mr. Lee’s attendance via Zoom satisfied his

right, as a victim’s representative, to attend the hearing.” Id. at 541. Finally, the Majority

interpreted the text and legislative history of the Vacatur Statute and held that Mr. Lee did

not have a right to be heard at the Vacatur Hearing. See id. at 542-44.

Writing separately, the Honorable Stuart R. Berger agreed with the Majority that

Mr. Lee had no right to be heard at the Vacatur Hearing, but dissented from the other

portions of the Appellate Court’s disposition of the appeal. See id. at 551-61 (Berger, J.,

dissenting). Judge Berger first explained that he would hold that the entry of the nol pros

mooted Mr. Lee’s appeal, although he nevertheless would have reached the merits. Id. at

551-56 (Berger, J., dissenting). Judge Berger also would have held that remote attendance

satisfies a victim’s right to attend a vacatur hearing and that the notice in this case was

sufficient because it afforded Mr. Lee the opportunity to attend via Zoom. Id. at 557-61

(Berger, J., dissenting).

Mr. Syed subsequently filed a motion for reconsideration, arguing that Mr. Lee did

not meet his burden to show that the alleged errors prejudiced him. The Appellate Court

denied this motion because Mr. Syed had not previously raised the issue of prejudice.

6. The Cross-Petitions for Certiorari

On May 24, 2023, Mr. Syed filed a petition for writ of certiorari with this Court. On

June 8, 2023, Mr. Lee filed a cross-petition for certiorari. The State of Maryland

(represented on appeal by the Office of the Attorney General) filed a response

recommending that we grant both petitions, which we did on June 28, 2023. Syed v. Lee,

29

483 Md. 589 (2023). Between the two petitions, we agreed to review the following

questions (which we have reordered and rephrased): 12

1. Did the entry of the nol pros moot Mr. Lee’s appeal of the Vacatur

Order?

2. Does a victim have the right to be heard at a vacatur hearing?

3. Does a victim have the right to attend a vacatur hearing in person,

or does remote attendance satisfy the right of attendance?

4. Did Mr. Lee receive sufficient notice of the Vacatur Hearing?

5. Must a victim who seeks reversal of an order of court due to

violation of the victim’s rights make a showing of prejudice and,

if so, did Mr. Lee do so in this case?

12

Mr. Syed’s petition for certiorari sought review of the following questions:

1. Does a lawfully entered nolle prosequi render moot an appeal alleging

procedural violations at a hearing occurring prior to the nolle prosequi?

2. Does a victim’s representative, a non-party to a case, have the right to

attend a vacatur hearing in-person or does remote attendance satisfy the

right?

3. Was notice to the victim’s representative of the vacatur hearing sufficient

where the State complied with all statutory and rules-based notice

requirements?

4. Must a victim’s representative seeking reversal show prejudice on

appeal?

Mr. Lee’s cross-petition for certiorari sought review of the following question:

Whether a victim’s right to speak, as enshrined in Maryland’s laws and

constitution, is incorporated into the Vacatur Statute, CP § 8-301.1, where

no party or entity other than the victim has an interest in challenging the

evidence alleged to support vacatur?

30

II

Standard of Review

The questions listed above are questions of law, which we consider de novo. See,

e.g., Nationwide Prop. & Cas. Ins. Co. v. Selective Way Ins. Co., 473 Md. 178, 188-89

(2021); Peterson v. State, 467 Md. 713, 725 (2020).

III

Discussion

A. Mootness

We first consider whether the entry of the nol pros mooted Mr. Lee’s appeal of the

Vacatur Order. “A question is moot if, at the time it is before the court, there is no longer

any existing controversy between the parties, so that there is no longer an effective remedy

which the court can provide.” In re S.F., 477 Md. 296, 318 (2022) (internal quotation marks

and citations omitted).

Mr. Syed argues that the entry of the nol pros mooted Mr. Lee’s appeal of the

Vacatur Order. According to Mr. Syed, the State’s Attorney lawfully entered the nol pros,

which had the “incidental effect” of mooting Mr. Lee’s appeal. That is the case, Mr. Syed

contends, because the remedy Mr. Lee sought in the Appellate Court – reinstatement of

Mr. Syed’s convictions and a rehearing on the Vacatur Motion – was no longer possible

due to the charges against Mr. Syed having been finally terminated through the entry of the

nol pros. In addition, Mr. Syed contends that the nol pros was not properly before the

Appellate Court because it was entered after Mr. Lee noted his appeal, and Mr. Lee could

not (or did not, if he could) appeal the entry of the nol pros.

31

Respondents Mr. Lee and the State argue that the nol pros did not moot Mr. Lee’s

appeal. Respondents proceed from the premise that, but for the circuit court’s order

vacating Mr. Syed’s convictions, the State’s Attorney would not have been permitted to

enter the nol pros. Further, the entry of the nol pros had the effect of thwarting Mr. Lee’s

appellate rights, which, Respondents argue, the State’s Attorney lacked the authority to do,

and which resulted in fundamental unfairness to Mr. Lee. Respondents contend that the

Appellate Court (and this Court) have the authority under CP § 11-103(e) to award relief

to Mr. Lee for the violation of his rights by ordering a new vacatur hearing. We agree with

Respondents that this appeal is not moot.

A nol pros is “an action taken by the State to dismiss pending charges when it

determines that it does not intend to prosecute the defendant under a particular indictment.”

State v. Huntley, 411 Md. 288, 291 n.4 (2009) (citation omitted); CP § 1-101(k) (“‘Nolle

prosequi’ means a formal entry on the record by the State that declares the State’s intention

not to prosecute a charge.”); see also Ward v. State, 290 Md. 76, 83 (1981) (a nol pros “is

an abandonment of the prosecution”) (internal quotation marks and citation omitted). A nol

pros eliminates the charge against the defendant, “as if the charge had never been brought

in the first place.” Curley v. State, 299 Md. 449, 460 (1984) (citations omitted). After a nol

pros has been entered, the State may proceed against the defendant for the same offense

“only under a new or different charging document or count.” Id. (citation omitted).

A State’s Attorney generally has “broad discretion” to enter a nol pros. State v.

Simms, 456 Md. 551, 561 (2017) (citation omitted). However, the power to enter a nol pros

is “not absolute” or “completely without restraint.” Hook v. State, 315 Md. 25, 35-36

32

(1989). We have previously held that the State may not enter a nol pros “to alter a final

judgment, i.e. conviction and sentence.” Simms, 456 Md. at 555. In Simms, the defendant

filed an appeal challenging the sufficiency of the evidence for his conviction to a drug

conspiracy charge. Id. While the appeal was pending, the State entered a nol pros to the

charges in the circuit court; the State then moved to dismiss the appeal as moot. Id. This

Court held that “[t]he State had no authority to use its power to nol pros to alter a final

judgment entered in favor of or against a criminal defendant. Final judgment is the

boundary of the State’s discretion to enter a nolle prosequi.” Id. at 575. That was so because

“[o]nce a case reaches final judgment in a proceeding, and a party appeals that judgment,

the issue comes within the exclusive jurisdiction of the appellate court.” Id. at 576 (internal

quotation marks and citation omitted). We explained that the nol pros while the defendant’s

appeal was pending “was simply a nullity, improper and therefore ineffective.” Id. (internal

quotation marks and citation omitted). The Court also observed that the State “was not

attempting to nol pros charges but rather sought to erase a conviction and sentence, and in

doing so attempted an end run around the appellate process.” Id. We “reject[ed] the State’s

suggestion that its power to nol pros may divest a criminal defendant of his or her right to

appeal a final judgment[,]” explaining that the defendant’s “interest in the outcome of his

appeal … [was] not controlled by the prosecuting attorneys.” Id. at 577.

Nor may a State’s Attorney enter a nol pros in a way that undermines the defendant’s

right to a fair trial. See Hook, 315 Md. at 41-42. Hook was a capital murder case. See id. at

33. The evidence adduced by the State in its case-in-chief indicated that the defendant was

intoxicated at the time he shot and killed two people. See id. at 34-35. At the close of the

33

State’s case, the State entered a nol pros to murder in the second degree, to which the

defense objected. Id. at 35. The trial court overruled the objection, reasoning “that the State

can submit whatever crimes it has previously charged the Defendant with to the Jury and

nol pros whatever charge it wishes[.]” Id. The jury convicted the defendant of first-degree

murder. Id. at 38.

This Court reversed. Although the Court recognized that “entry of a nolle prosequi

is generally within the sole discretion of the prosecuting attorney, free from judicial control

and not dependent upon the defendant’s consent[,]” id. at 35 (internal quotation marks and

citation omitted), the Court stated that “under the concept of fundamental fairness with

respect to a trial in a criminal cause, the broad authority vested in a prosecutor to enter a

nolle prosequi may be fettered in the proper circumstances.” Id. at 37. After reviewing case

law, including Beck v. Alabama, 447 U.S. 625 (1980), which found unconstitutional the

withholding of a lesser-included offense jury instruction in a capital case where the

evidence supports the giving of such an instruction, we explained:

The trial judge’s refusal to give the requested instruction on second degree

murder and to permit defense counsel to argue that crime stemmed from the

State’s nolle prosequi which removed second degree murder from the

consideration of the jury. The action of the State left no charge of second

degree murder on which to convict, and thus placed the case outside the scope

of the Beck rule. We do not believe that, under the circumstances, the State

can circumvent the Beck rule in this manner. The nolle prosequi resurrected

the very evils which Beck and its siblings buried. We think that the

exceptional circumstances of this case present a rare occasion calling for a

tempering of the broad authority vested in a State’s Attorney to terminate a

prosecution by a nolle prosequi. We believe that the State, in entering the

nolle prosequi here, failed to observe that fundamental fairness essential to

the very concept of justice. Its action was inconsistent with the rudimentary

demands of fair procedure.

34

Hook, 315 Md. at 41-42. We held that “[w]hen the defendant is plainly guilty of some

offense, and the evidence is legally sufficient for the trier of fact to convict him of either

the greater offense or a lesser included offense, it is fundamentally unfair under Maryland

common law for the State, over the defendant’s objection, to nol pros the lesser included

offense.” Id. at 43-44. We thus determined that the trial judge erred in overruling the

objection to the entry of the nol pros and ordered a new trial. Id. at 42.

We conclude that the nol pros of Mr. Syed’s charges, after the circuit vacated Mr.

Syed’s conviction, does not moot Mr. Lee’s appeal. This case presents exceptional

circumstances that call for a tempering of the broad authority that a State’s Attorney

typically possesses to nol pros a charge. This determination flows logically from Simms

and Hook. First, we start with the Simms rule that a nol pros can only be entered as to

charges, and not as to final dispositions. Therefore, the State could only have nol prossed

Mr. Syed’s charges, and not his conviction. As matters stood before September 19, 2022,

this case was materially indistinguishable from Simms. Prior to September 19, Mr. Syed

was the subject of a final judgment of conviction; thus, prior to September 19, under Simms,

the State’s Attorney lacked the authority to enter a nol pros. Simms, 456 Md. at 575-76.

The lawful vacatur of Mr. Syed’s convictions was a condition precedent to the

State’s Attorney regaining the authority it had prior to entry of final judgment to nol pros

the charges against Mr. Syed. As such, the question becomes whether the vacatur of Mr.

Syed’s conviction was proper – the exact question that Respondents present to this Court.

Respondents contend that there was not a lawful vacatur of Mr. Syed’s convictions, given

the alleged violations of Mr. Lee’s rights as the victim’s representative. If Respondents are

35

correct that the vacatur was unlawful, then there is not a material distinction between this

case and Simms because there should not have been a vacatur of Mr. Syed’s convictions,

thereby rendering the subsequent nol pros “a nullity, improper and therefore ineffective.”

Id. at 576 (internal quotation marks and citation omitted). Because, as discussed below, the

vacatur was flawed, by operation of law the conviction stood, and the State’s Attorney did

not have authority to nol pros such a final disposition. See id. at 575.

Second, the effect of the nol pros was to thwart Mr. Lee’s effort on appeal to

vindicate his rights as the victim’s representative. This case concerns the fundamental

rights of a victim as guaranteed by Article 47 of the Maryland Declaration of Rights to be

treated with “dignity, respect, and sensitivity[.]” Md. Decl. of Rts. art. 47(a). Although this

case does not concern an accused’s right to a fair trial as in Hook, victims and their

representatives, like Mr. Lee, deserve fair treatment and have a right under the Maryland

Constitution to such. As in Hook, “[w]e believe that the State, in entering the nolle prosequi

here, failed to observe that fundamental fairness essential to the very concept of justice. Its

action was inconsistent with the rudimentary demands of fair procedure.” Hook, 315 Md.

at 41-42. 13

13

Justice Booth opines that a criminal defendant’s constitutional rights and a crime

victim’s constitutional rights “are not on equal footing[.]” Dissenting Op. of Booth, J., at

10. Of course, courts occasionally must balance constitutional rights in light of a particular

set of circumstances, and as a result of that analysis, one right may have to yield to another.

See, e.g., United States v. Orsini, 424 F. Supp. 229, 232 (E.D.N.Y. 1976) (“[T]here exists

no absolute rule of privilege protecting [journalists] from disclosure of confidential

sources. Instead, what is required is a case by case evaluation and balancing of the

legitimate competing interests of the [journalist’s] claim to First Amendment protection

from forced disclosure of his confidential sources, as against the defendant’s claim to a fair

trial which is guaranteed by the Sixth Amendment.”). But that does not mean that any

36

We reject the argument that a prosecutor may use the nol pros power to divest a

victim of the right to appeal what the victim contends is an unlawful vacatur order, as the

victim’s “interest in the outcome of [the victim’s] appeal … [is] not controlled by the

prosecuting attorneys.” See Simms, 456 Md. at 577. To hold otherwise would make it

essentially impossible for victims to enforce their rights in connection with a vacatur

hearing. Whenever the State wanted to avoid an appeal of a vacatur decision, the State

could simply nol pros the case after a notice of appeal had been filed and thereby moot the

appeal. That would be inconsistent with: CP § 11-103(b), which provides a victim with the

right to appeal from a final order that “denies or fails to consider a right secured to the

victim”; CP § 11-103(e)(1), which states that, “[i]n any court proceeding involving a crime

against a victim, the court shall ensure that the victim is in fact afforded the rights provided

to victims by law”; and CP § 11-103(e)(2), which permits a court, after finding that a

victim’s right was not considered or was denied, to grant the victim relief, provided that

the remedy does not violate principles of Double Jeopardy. Acknowledging this additional

constraint on a prosecutor’s nol pros power furthers Maryland’s “clear public policy” of

providing “broad rights to crime victims” and treating them with “dignity, respect, and

sensitivity[.]” Lopez v. State, 458 Md. 164, 175-76 (2018); Md. Decl. of Rts. art. 47(a).

Mr. Syed’s arguments to the contrary are unpersuasive. First, Mr. Syed contends

that Simms is distinguishable from this case because, in Simms, the State entered the nol

pros while the defendant’s final judgment of conviction was on appeal, whereas here “[t]he

particular constitutional right is inherently less worthy of protection than any other

constitutional right.

37

issuance of a lawful vacatur order left the case in prejudgment status[.]” The key word in

this quote from Mr. Syed’s brief is “lawful.” Mr. Lee’s appeal challenges the lawfulness

of the vacatur order; i.e., Mr. Lee argues that it was improper for the circuit court to return

this case to “prejudgment status,” given the alleged violations of Mr. Lee’s rights as the

victim’s representative. To this point, Mr. Syed replies that, even if Mr. Lee “had a valid

grievance about notice and attendance at the vacatur hearing, it does not follow that the

vacatur order was somehow illegal just as it does not follow that a verdict is a nullity when

error occurs at trial.”

Mr. Syed downplays the significance of vacatur. It is no small matter for a court to

undo a final judgment of conviction. In multiple contexts, the United States Supreme Court

and this Court have emphasized the importance of finality in criminal cases. See, e.g.,

Strickland v. Washington, 466 U.S. 668, 693 (1984) (in discussing the appropriate standard

for review of ineffective-assistance-of-counsel claims, noting the “profound importance of

finality in criminal proceedings”); Griffith v. Kentucky, 479 U.S. 314, 321-22 (1987)

(stating that “the retroactivity analysis for convictions that have become final must be

different from the analysis for convictions that are not final at the time the new decision is

issued”); Arrington v. State, 411 Md. 524, 548 (2009) (explaining that the General

Assembly introduced the doctrine of waiver into the Uniform Postconviction Procedure

Act “to achieve finality in the criminal adjudicative process, without unduly interfering

with a defendant’s right to fully present his case before a court”). Finality of criminal

judgments furthers several interests, including “the retributive and the deterrent functions

of criminal law[,]” enhancement of the quality of judging, and the execution of the State’s

38

“moral judgment in a case.” Calderon v. Thompson, 523 U.S. 538, 555-56 (1998). “Only

with real finality can the victims of crime move forward knowing the moral judgment will

be carried out.” Id. at 556. “To unsettle these expectations is to inflict a profound injury to

the powerful and legitimate interest in punishing the guilty, an interest shared by the State

and the victims of crime alike.” Id. (internal quotation marks and citation omitted).

In this case, harm to Mr. Lee’s interest in finality occurred as a result of the alleged

violation of Mr. Lee’s constitutionally protected rights. That circumstance puts this case

on a par with Hook in warranting the imposition of a constraint on a prosecutor’s nol pros

authority. 14

Second, Mr. Syed argues that, under Maryland Rule 4-333(i), the State’s Attorney

was obligated to enter a nol pros within 30 days of the entry of the Vacatur Order, given

that the State’s Attorney concluded that she no longer intended to re-prosecute Mr. Syed

under the same charging document. Mr. Syed misreads Rule 4-333(i). Under that provision

of the Vacatur Rule, “[w]ithin 30 days after the court enters an order vacating a judgment

of conviction … as to any count, the State’s Attorney shall either enter a nolle prosequi of

the vacated count or take other appropriate action as to that count.” Md. Rule 4-333(i).

14

According to Mr. Syed, this Court in Hook “did not purport to hold that the State

may be barred from dismissing an entire charging document, which would have the effect

of forcing the State to prosecute a person against its wishes.” This misses the point. The

State has already prosecuted Mr. Syed, and his conviction is final. That being the case,

before the State’s Attorney is called upon to decide whether to re-prosecute Mr. Syed or to

enter a nol pros, there must be a lawful vacatur of Mr. Syed’s convictions. In holding that

Mr. Lee’s appeal is not moot, we are not saying that the State’s Attorney will ever be forced

to re-prosecute Mr. Syed against the State’s Attorney’s wishes. But first things first: The

State’s Attorney does not have the power to nol pros a case such as Mr. Syed’s unless and

until a circuit court lawfully vacates the judgment of conviction.

39

“[O]ther appropriate action” under Rule 4-333(i) need not be (as the circuit court seemed

to believe 15) setting the vacated count(s) in for a retrial. Where, as here, a victim has noted

an appeal of a vacatur order, “other appropriate action” by the State’s Attorney could

include moving to stay the proceedings in the circuit court pending appeal and/or, as the

State suggests in its brief to this Court, announcing the State’s Attorney’s intention to enter

a nol pros if the vacatur order is upheld on appeal.

As Mr. Syed observes, Rule 4-333(i) instructs the State to decide whether to nol

pros vacated counts within 30 days of the vacatur order – the same amount of time a victim

has to note an appeal. See Md. Rule 8-202(a). The State in its brief to this Court does not

see the two simultaneously running deadlines as a problem. On the State’s view, a

prosecutor may enter a nol pros at any time after the issuance of a vacatur order up until

the time that a victim notes an appeal of the vacatur order. But once a victim notes such an

appeal, the State asserts, a prosecutor no longer may nol pros the vacated charges but rather

must take “other appropriate action” under Rule 4-333(i) before the 30-day period runs.

It may be that the State’s Attorney is not legally barred from entering a nol pros of

vacated counts if no appeal by the victim is pending. 16 If that is the case, we would be

15

The Vacatur Order instructed the State’s Attorney either to “schedule a date for a

new trial or enter nolle prosequi of the vacated counts within 30 days of the date of this

Order.” Contrary to Mr. Syed’s description, the Vacatur Order did not “echo[] the

requirements” of Rule 4-333(i). To the extent the circuit court believed the only potential

“other appropriate action” was setting the vacated counts in for a new trial, the circuit court

misread Rule 4-333(i).

16

On the other hand, if the State were to nol pros the vacated counts before a victim

timely appeals, the nol pros could potentially be determined to be invalid due to the victim’s

right to appeal. Otherwise, the entry of a nol pros prior to a victim pursuing a timely appeal

40

concerned about a scenario in which a victim and a prosecutor who decides to nol pros

vacated counts find themselves in a race to see who can act first after the entry of the

vacatur order. Will the victim note an appeal before the State’s Attorney can go into court

and enter a nol pros, or vice versa? In our view, the course of action that treats the victim

with dignity, respect, and sensitivity is for the State’s Attorney to confer with the victim (if

the State’s Attorney is able to contact the victim) prior to entering a nol pros to determine

whether the victim intends to note an appeal during the 30-day period. If the victim states

that no appeal of the vacatur order will be noted, the State’s Attorney generally may rely

on that representation and enter a nol pros. However, if the victim indicates that they will

be (or may be) noting an appeal of the vacatur order, the State’s Attorney generally should

hold off entering a nol pros. “[O]ther appropriate action” in such a situation could be for

the State’s Attorney to file a motion for a brief extension of Rule 4-333(i)’s 30-day period

to allow the victim the full 30-day period under Rule 8-202(a) to decide whether to note an

appeal. 17 We expect that the court would liberally grant such a motion. If the victim does

not note an appeal within the 30-day period provided by Rule 8-202(a), the State’s Attorney

can then nol pros the vacated counts.

Mr. Syed takes exception to the idea that the State’s Attorney should face any barrier

to entering a nol pros of a count that has been vacated under CP § 8-301.1. As Mr. Syed

could nullify the victim’s statutory right to appeal. Based on the circumstances of this case,

we need not address this question head on.

17

We have not endeavored in this opinion to provide an exhaustive list of “other

appropriate action” under Rule 4-333(i).

41

points out, affirming the Appellate Court’s decision that this case is not moot would

“prevent[] the State … from ever dismissing charges until the time for noting an appeal has

passed or, if the victim or victim’s representative takes an appeal, the appeal is concluded.”

In the meantime, Mr. Syed observes, “the defendant must live with charges hanging over

their head, under a cloud of suspicion and in constant fear of re-prosecution.” We recognize

that the balance we strike here may lead to stress and uncertainty for a defendant whose

counts of conviction have been vacated. The defendant may have to wait 30 days or, if a

victim notes an appeal, significantly longer to learn whether the vacatur order will stand

and, if so, whether the State’s Attorney will elect to re-prosecute any of the vacated charges.

However, this additional waiting period is necessary to vindicate victims’ constitutionally

protected rights. 18

Next, Mr. Syed contends that this Court does not have the power to provide Mr. Lee

with a remedy that undoes the nol pros because Mr. Lee did not (or could not) appeal the

entry of the nol pros but, rather, only has appealed the Vacatur Order. We need not decide

whether a victim may appeal the entry of a nol pros following the issuance of a vacatur

order under CP § 8-301.1. If Mr. Lee is correct that there was not a lawful vacatur order,

then the State’s Attorney did not have the authority to enter a nol pros and its entry on the

docket was a nullity.

18

Although Mr. Syed indeed has been in a kind of limbo since September 2022, as

two appellate courts have considered whether the Vacatur Order is lawful, we note that he

has been out of jail for the entirety of this period.

42

The Appellate Court’s decision in Antoine v. State, 245 Md. App. 521 (2020), is

instructive. In that case, Antoine was the victim of an assault. Id. at 530. During a hearing

where Antoine was not present (because the prosecutor had told Antoine nothing

substantive would occur), the circuit court bound itself to a disposition of probation before

judgment without first hearing from Antoine. See id. at 535-36. This violated several

victim’s rights provisions. Id. at 546. At a subsequent hearing, Antoine sought relief under

CP § 11-103(e). Id. at 536. Specifically, he requested that the court repudiate the plea

agreement negotiated with the defendant and permit the defendant to withdraw his guilty

plea so that the defendant, the State, and Antoine himself could “start over.” Id. at 536-37.

The trial court “assume[d], for the sake of argument, that the notifications and

various rights for Mr. Antoine, as the victim, were not complied with.” Id. at 537.

However, the trial court concluded that it lacked authority to provide Antoine with any

remedy at that point, having already bound itself to a particular disposition. See id. On

appeal, the intermediate appellate court reversed, reasoning that the Criminal Procedure

Article authorized a remedy for violation of Antoine’s rights as a victim “that is both

effective and respectful of the constitutional rights of defendants.” Id. at 531. That remedy

was “to vacate the sentence and the trial court’s final approval of the plea agreement, and

require the court to receive and consider victim impact evidence before deciding whether

to give final approval of the plea agreement.” Id. The court concluded that this remedy was

permissible under CP § 11-103(e)(2), because it did not violate the defendant’s

constitutional right to be free of Double Jeopardy. Id. at 558.

43

We agree with Antoine’s interpretation of CP § 11-103(e). The logical conclusion

we reach from applying it here is that the nol pros did not moot Mr. Lee’s claim on appeal

that the circuit court violated his rights as a victim’s representative. Just as the trial court’s

otherwise legal action in Antoine in binding itself to a plea agreement was rendered a nullity

as a result of the antecedent violation of Antoine’s rights as a victim, the State’s Attorney’s

otherwise legal action of entering a nol pros in this case was a nullity if the vacatur hearing

was unlawful due to a violation of Mr. Lee’s rights as a victim’s representative. 19

The cases of this Court upon which Mr. Syed relies in arguing that this appeal is

moot, Cottman v. State, 395 Md. 729 (2006), and Hooper v. State, 293 Md. 162 (1982), are

inapposite. In Cottman, the defendant was convicted at trial on drug charges. While his

appeal was pending in the Appellate Court, the trial court granted the defendant’s motion

for a new trial, which had the effect of vacating the underlying judgment of conviction and

sentence. 395 Md. at 733. Unaware of the grant of the new trial motion, the Appellate Court

subsequently filed an opinion affirming the circuit court’s initial judgment and sentence.

Id. Prior to the issuance of the Appellate Court’s mandate, Cottman requested that the

Appellate Court withdraw its opinion and dismiss the appeal as moot, in light of the circuit

court’s decision to grant him a new trial prior to the filing of the Appellate Court’s opinion.

Id. The Appellate Court denied relief to Cottman. When Cottman’s case then came to this

Court, we held that the grant of a new trial in favor of Cottman mooted Cottman’s appeal

and, therefore, the Appellate Court should have dismissed the appeal. Id. at 745.

Mr. Syed does not claim that a new vacatur hearing would offend Double

19

Jeopardy principles. See Lee, 257 Md. App. at 548-49.

44

This case is distinguishable from Cottman in two respects. First, in Cottman the

State did not (and could not) appeal the order granting the motion for new trial; what was

before the Appellate Court based on Cottman’s notice of appeal was only the validity of

Cottman’s convictions and sentence. Id. at 738-39 & n.6. Here, Mr. Lee had the right to

appeal the grant of the Vacatur Order and did so timely. Second, the trial court retained

jurisdiction to rule on Cottman’s motion for a new trial, notwithstanding Cottman having

noted an appeal of the judgment of conviction. In that respect, Cottman differs from Simms.

In Simms, the State’s Attorney lacked the authority to take the action that purportedly

mooted the appeal (the nol pros) because of the pendency of the appeal. In Cottman, the

trial court had the authority to take the action that mooted the appeal (granting the new trial

motion). 20 As discussed above, if the Vacatur Order in this case was unlawful, this case is

analogous to Simms.

20

In Cottman, while the appeal was pending, the circuit court ordered a new trial,

essentially erasing the original proceeding/conviction and mooting the appeal. By way of

comparison, if, after Mr. Lee filed his appeal, the circuit court here had reconsidered its

opinion, vacated its original vacatur order, and ordered a new hearing, then Mr. Lee’s

appeal would have been moot, as the appeal in Cottman was. But that is not what happened

in this case. Here, the State chose to nol pros the reinstated charges, leaving Mr. Lee

without the remedy of an appeal or a new vacatur hearing. This case does not turn on the

well-established principle that trial courts “are not stripped of their jurisdiction to take post-

judgment action simply because an appeal is pending from that judgment.” Cottman, 395

Md. at 740.

Relatedly, Justice Hotten’s reliance on the Committee note to Rule 4-333(b) is

misplaced. See Dissenting Op. of Hotten, J., at 13-14. The Committee note recognizes that,

under the Vacatur Statute, a circuit court has authority to vacate a conviction at any time,

including while a defendant’s direct appeal of the conviction is pending. The note observes

that, if a motion to vacate is granted and the State’s Attorney enters a nol pros before the

defendant’s appeal is resolved, “the appeal may become moot, at least with respect to the

judgments vacated.” The note therefore advises that “[t]he simplest solution in most cases

45

Mr. Syed’s reliance on Hooper v. State also is misplaced. In that case, two criminal

defendants successfully petitioned for certiorari in this Court after the Appellate Court

reinstated the indictment against them, which had been dismissed by the trial court. 293

Md. at 164. At oral argument in this Court, the State effectively dismissed the pending

charges, explaining that it was doing so because the State’s Attorney had obtained a new

charging document in the circuit court. Id. However, when those new charges could not be

tried as quickly as the State wished, the State moved to undo its dismissal of the first set of

charges. Id. at 167. This Court declined the State’s request, reasoning that the State

effectively had nol prossed the first set of charges at oral argument, which meant that “the

prosecution under that particular charging document [was] finally terminated at that time.”

Id. Thus, the Court ordered that the appeal be dismissed. Id. at 167-68.

In Hooper, there was no condition precedent that had to be satisfied before the State

had the power to nol pros the charges in question. Thus, when the State effectively

dismissed the charges in this Court, it was stuck with the consequences of the exercise of

its nol pros power. In contrast, in this case the State only had the authority to nol pros Mr.

Syed’s charges if the Vacatur Order was lawful.

In sum, there is an existing controversy between the parties, centered on whether

Mr. Lee’s rights as a victim were violated at the Vacatur Hearing, thereby rendering the

Vacatur Order unlawful. Where the State moves to vacate a conviction under the Vacatur

would be for the appellate court to remand the case for the trial court to consider the motion

[to vacate].” Md. Rule 4-333(b), comm. note. The Committee note says nothing about the

effect of a nol pros on a victim’s appeal of a vacatur order that was a condition precedent

to the entry of the nol pros.

46

Statute and the motion is granted, the State does not have the authority to nol pros the

reinstated charges if doing so would thwart a victim’s appeal claiming that the victim’s

rights were violated by the vacatur decision. If there has been a violation of Mr. Lee’s rights

in connection with the Vacatur Hearing, this Court has at its disposal an effective remedy

that will not violate Mr. Syed’s constitutional right to be free from Double Jeopardy: it can

return the parties to where they were immediately after the State’s Attorney filed the

Vacatur Motion. For these reasons, Mr. Lee’s appeal is not moot.

B. A Victim’s Right to Be Heard at a Vacatur Hearing

Turning to the merits, we first consider whether a victim has the right to be heard at

a vacatur hearing. Mr. Syed argues that victims do not have a statutory right to participate

in vacatur hearings. Thus, Mr. Syed contends, Mr. Lee received more than he was due

when the circuit court allowed him to make a statement immediately prior to what the court

referred to as the commencement of the Vacatur Hearing.

Mr. Lee asserts that he received less than the law requires with respect to the right

to be heard. According to Mr. Lee, he had a right not just to address the court at the Vacatur

Hearing but also to participate as a party at the hearing, by introducing evidence, cross-

examining witnesses, et cetera.

The State takes an intermediate position, contending that a victim has the right to be

heard at a vacatur hearing, both as to the legal sufficiency of the State’s motion and the

court’s exercise of discretion in determining whether the interest of justice and fairness

justifies vacating the conviction. However, the State disagrees with Mr. Lee’s view that a

victim is entitled to other rights of participation at a vacatur hearing, such as the right to

47

present evidence or call witnesses. We agree with the State’s position concerning a victim’s

right to be heard at a vacatur hearing.

1. A Victim Has the Right to Be Heard at a Vacatur Hearing.

We conclude, as a matter of statutory and constitutional law, that a crime victim has

the right to be heard at a vacatur hearing. We reach this conclusion based on the

unambiguous language of Article 47 of the Declaration of Rights, CP § 11-403, and the

cross-reference in Maryland Rule 4-333(h).

Article 47(b) expressly states that a victim of crime has the right to be informed of

the rights established in the Article and the rights, “upon request and if practicable, to be

notified of, to attend, and to be heard at a criminal justice proceeding, as these rights are

implemented and the terms ‘crime’, ‘criminal justice proceeding’, and ‘victim’ are

specified by law.” CP § 11-403 provides that a victim has a right to “address the court

under oath before the imposition of sentence or other disposition” at “a hearing at which

the … alteration of a sentence … is considered.” CP § 11-403(a) & (b). And Maryland

Rule 4-333, which stems from CP § 8-301.1, includes a cross-reference after section (h):

“For the right of a victim or victim’s representative to address the court during a sentencing

or disposition hearing, see [CP] § 11-403.” Thus, as we explain in more detail below, under

Maryland law, a victim has a right to be heard at a vacatur hearing. In addition, a victim’s

right to be heard at a vacatur hearing contemplates the right to be heard in a meaningful

48

way, which includes the right to be heard on the merits of the parties’ presentations in

support of a vacatur motion. 21

a. Statutory Interpretation

When construing a statute, our goal is “to ascertain and effectuate the real and actual

intent of the Legislature.” Lockshin v. Semsker, 412 Md. 257, 274 (2010). We “begin with

the plain language of the statute, and ordinary, popular understanding of the English

language dictates interpretation of its terminology.” Buarque de Macedo v. Automobile Ins.

Co. of Hartford, Conn., 480 Md. 200, 215 (2022) (internal quotation marks and citation

omitted). Where statutory language “is ambiguous and thus subject to more than one

reasonable interpretation, or where the language is unambiguous when read in isolation,

but ambiguous when considered in the context of a larger statutory scheme, a court must

resolve the ambiguity by searching for legislative intent in other indicia, including the

history of the legislation or other relevant sources intrinsic and extrinsic to the legislative

process.” Buarque de Macedo, 480 Md. at 216 (internal quotation marks and citation

omitted). In addition, we “check our interpretation against the consequences of alternative

readings of the text[,]” Bell v. Chance, 460 Md. 28, 53 (2018), which “grounds the

analysis.” In re O.P., 470 Md. 225, 255 (2020).

21

Justice Hotten states that “[t]he Majority appears to have interpreted the ‘right to

attend’ a vacatur hearing under Crim. Proc. § 8-301.1(d) as reflecting a right to be heard[.]”

Dissenting Op. of Hotten, J., at 24. We do not interpret the right to attend a vacatur hearing

to reflect a right to be heard at such a hearing. As discussed below, however, the right to

be heard at a vacatur hearing does inform our view of whether a victim has the right to

attend a vacatur hearing in person.

49

b. The Vacatur Statute

In 2021, the General Assembly enacted the Vacatur Statute, which requires notice

to the victim of a hearing, CP § 8-301.1(d)(1), and also states that a victim has the right to

attend a hearing. Id. § 8-301.1(d)(2). However, the statute is silent as to a victim’s right to

be heard at the hearing. Where a statute is silent with respect to a matter, because statutes

are to be interpreted consistent with legislative purpose, we must examine the General

Assembly’s intent. See Amaya v. DGS Constr., LLC, 479 Md. 515, 559 (2022). For his

part, Mr. Syed contends that, if the General Assembly had intended victims to have the

right to be heard at a vacatur hearing, it would have expressly included such a right in the

Vacatur Statute, just as it expressly referenced the rights to notice and attendance in that

statute. Under the principles of statutory construction, however, this argument has little

force.

In concluding that there is no right to be heard at a vacatur hearing, like Mr. Syed,

the Appellate Court observed that “[w]here language is included providing for a right in

one provision, but not in a related provision, it suggests that the absence of comparable

language was by design.” Lee, 257 Md. App. at 543 (cleaned up). The Appellate Court

noted that the State’s Attorney for Baltimore County proposed adding language to the bill

to provide that the victim has a “right to be heard at the hearing[,]” and, in opposing the

bill, the Maryland Judiciary stated: “[T]he bill indicates that in addition to a right to notice,

a victim has a right to attend a hearing but it is not clear under this legislation if the victim

has a right to be heard at the hearing.” Id. at 543-44 (quoting e-mail from Scott

Shellenberger, Balt. Cnty. State’s Att’y, to Del. Erek Barron (Feb. 25, 2019) (attached as

50

exhibit to Letter from Del. Erek Barron to Md. Gen. Assemb. H. Jud. Comm., H.B. 874,

2019 Leg., 439th Sess. (Feb. 25, 2019) and Memorandum from Suzanne D. Pelz, Esq., Md.

Jud. Conf., to Md. Gen. Assemb. H. Jud. Comm., H.B. 874, 2019 Leg., 439th Sess. (Feb.

20, 2019)). Despite the attention paid to the lack of language in the bill referencing a right

to be heard, the General Assembly did not add such language to it.

However, when “engaging in statutory interpretation, legislative inaction is seldom

a reliable guide in discerning legislative intent.” Smith v. Westminster Mgmt., LLC, 257

Md. App. 336, 372 (2023), aff’d, 486 Md. 616 (2024). That is the case because there are

often myriad reasons why the General Assembly may decide not to adopt proposed

legislation, including the General Assembly’s belief that the objectives of a proposed bill

are already covered elsewhere in Maryland law. See, e.g., Sacchet v. Blan, 353 Md. 87, 93-

94 (1999); Police Comm’r of Balt. City v. Dowling, 281 Md. 412, 420-21 (1977). 22

c. CP § 11-403

Respondents contend that the right to be heard at a vacatur hearing emanates from

CP § 11-403, which provides: “[T]he court, if practicable, shall allow the victim or the

victim’s representative to address the court under oath before the imposition of sentence or

other disposition[.]” Id. § 11-403(b). This right applies at a “sentencing or disposition

22

It is tempting to infer too much from the General Assembly’s inclusion in the

Vacatur Statute of the victim’s right to notice of and to appear at the Vacatur Hearing,

while failing to include a right to be heard. Victims already had the rights to notice of and

to appear at a vacatur hearing under CP §§ 11-104(f), 11-503(a)(2), (a)(7), and (b), and

11-102(a). Because the inclusion of the rights to notice and attendance in subsection (d) of

the Vacatur Statute were redundant of rights granted elsewhere, we decline to infer that

their inclusion implied an intention by the General Assembly to exclude other rights

granted elsewhere, such as the right to be heard.

51

hearing,” which the statute defines as “a hearing at which the imposition of a sentence,

disposition in a juvenile court proceeding, or alteration of a sentence … is considered.” Id.

§ 11-403(a) (emphasis added).

Respondents argue that vacatur of a conviction results in the ultimate alteration of a

sentence – its complete elimination – and therefore the right to be heard set forth in CP

§ 11-403 applies to a vacatur hearing. Mr. Syed disagrees with this proposition. He

contends that a victim’s right to address a court under § 11-403 applies only to proceedings

in which a court considers directly imposing or altering a sentence, as opposed to

proceedings in which a court sets aside a sentence by vacating the associated conviction.

We agree with Respondents that a vacatur hearing is a “hearing at which …

alteration of a sentence … is considered[,]” CP § 11-403(a), and, therefore, a victim has

the right under § 11-403 to be heard at such a hearing. The dictionary definition of

“alteration” is “a change; modification or adjustment[.]” Dictionary.com, Alteration,

https://perma.cc/N788-4HM7; see Chow v. State, 393 Md. 431, 445 (2006) (explaining that

it is proper to consult a dictionary for a term’s ordinary and popular meaning). When a

conviction is vacated, the associated sentence is necessarily changed. Thus, the vacatur of

a conviction necessarily results in the “alteration of a sentence.” As such, it is impossible

to “consider” vacating a conviction without also considering the “alteration of a sentence.”

The Appellate Court recognized that “[i]t certainly can be argued that the vacatur of

a defendant’s conviction is the ultimate alteration of a sentence, in the sense that it sets it

aside.” Lee, 257 Md. App. at 545. In our view, however, the point is not only arguable, but

52

clearly established: if a court grants a motion to vacate a conviction under CP § 8-301.1,

the court necessarily alters the sentence for that conviction.

Statutory language is not read in a vacuum or interpreted based only on the isolated

section at issue in a case. Lockshin, 412 Md. at 275. Instead, “the plain language must be

viewed within the context of the statutory scheme to which it belongs, considering the

purpose, aim, or policy of the Legislature in enacting the statute.” Id. at 276. We presume

that the Legislature intended for its enactments to operate together and seek to harmonize

a statute’s parts “to the extent possible consistent with the statute’s object and scope.” Id.

We see nothing in the text of CP § 11-403 that suggests this statute is not broad enough to

include the right of a victim to be heard at a vacatur hearing.

Mr. Syed argues for a narrower construction of CP § 11-403 “because a victim

impact statement contemplated by the statute is relevant only to a court’s exercise of

discretion in imposing a sentence or juvenile disposition[,]” as opposed to altering a

sentence through vacatur of a conviction, which he contends does not involve a court’s

exercise of discretion. We disagree.

The phrase “victim impact statement” is nowhere found in CP § 11-403. 23 Rather,

§ 11-403 says that, at a hearing where a court will consider imposing or altering a sentence,

23

In contrast, CP § 11-402 specifically addresses written “victim impact

statements,” and provides that such statements “shall”: (1) identify the victim; (2) itemize

any economic loss suffered by the victim; (3) identify any physical injury suffered by the

victim and describe the seriousness and permanent effects of such injury; (4) describe any

change in the victim’s personal welfare or familial relationships; (5) identify any request

for psychological services initiated by the victim or the victim’s family; (6) identify any

request by the victim to prohibit the defendant from having contact with the victim as a

53

the court, if practicable, “shall allow the victim or victim’s representative to address the

court under oath before the imposition of sentence or other disposition[.]”

CP § 11-403(b). 24 Moreover, § 11-403(c) provides that a defendant “may cross-examine

the victim or victim’s representative[,]” but only as to “the factual statements made to the

court.” This suggests that the General Assembly contemplated that victims would have the

right to be heard at “a sentencing or disposition hearing” not just as to factual matters, such

as the impact of the defendant’s criminal acts on the victim, but also as to legal issues,

including (but not necessarily limited to) the type and length of sentence the victim believes

the court should impose.

At a hearing where the alteration of a sentence is being considered, the victim’s

focus in many instances will likely shift from the impact of the defendant’s criminal acts

on the victim (which the victim likely would have addressed at the initial sentencing

hearing) to the question of whether the original sentence should be altered. Although there

may well be some overlap in the victim’s remarks at both the original sentencing hearing

and a hearing where alteration of the original sentence is being considered, in many cases

the victim will discuss new points at a hearing where the alteration of a sentence is a

possibility. See State v. Beltran, No. KNL-CR17-0336735-T, 2023 WL 3992415, at *2

condition of probation or release; and (7) contain any other information related to victim

impact that the court requires. See id. § 11-402(e).

24

The phrase “the imposition of sentence or other disposition” in CP § 11-403(b)

necessarily includes an alteration of a sentence, given that § 11-403(a) defines a

“sentencing or disposition hearing” as including a hearing where an alteration of sentence

is considered.

54

(Conn. Super. Ct. May 16, 2023) (“Victim input is no small issue in these matters.... With

a request for modification the victims and their families discover the case is not over. The

sentence which was negotiated with their input is now possibly being lowered. The victim

in this case is strongly opposed to any modification.”). At that type of hearing, the victim’s

focus may well shift to the justice and fairness of altering the sentence. See, e.g., State v.

A.M., 286 A.3d 660, 667 (N.J. 2023) (noting that victim’s daughters opposed

compassionate release because, among other things, the defendant “had shown no remorse

for her crime and no compassion for its effect on their lives”); United States v. Bischoff,

460 F. Supp. 3d 122, 124 (D.N.H. 2020) (noting that victims opposed sentence reduction

due to seriousness of defendant’s crimes and “also reported that [defendant’s] company ...

is still in existence. They are concerned that if released [defendant] will again engage in

the same fraudulent schemes.”).

Similarly, at a hearing on a motion to vacate, the victim may want to be heard on

the justice and fairness of vacating the conviction. This very point – that “the interest of

justice and fairness justifies vacating the … conviction” – is a discretionary determination

that a court must make before it may grant a vacatur motion. CP § 8-301.1(a)(2); see also

id. § 8-301.1(f)(1) (“In ruling on a motion filed under this section, the court, as the court

considers appropriate, may: (i) vacate the conviction or probation before judgment and

discharge the defendant; or (ii) deny the motion.”) (emphasis added). 25 This discretionary

25

Thus, Mr. Syed is incorrect when he describes a vacatur hearing as requiring the

court only to make non-discretionary determinations. In order to grant a vacatur motion, a

court must consider both discretionary and non-discretionary matters. We discuss the input

a victim may have with respect to the court’s non-discretionary determinations below.

55

determination is fundamentally similar to the court’s exercise of discretion when initially

sentencing a defendant or when considering whether to grant a motion for sentence

modification under Maryland Rule 4-345(e). Given a victim’s interest in the finality of a

judgment of conviction, which of course includes the sentence, it would be illogical to

interpret CP § 11-403’s text as providing a right to be heard as to the justice and fairness

of a requested modification of a sentence, but not as to the justice and fairness of vacating

a conviction and thereby setting aside a sentence completely.

Additionally, the cross-reference in Maryland Rule 4-333(h) supports the

conclusion that CP § 11-403 bestows upon a victim the right to be heard at a vacatur

hearing. Rule 4-333(h) contains a cross-reference to § 11-403 immediately after the rule

sets forth provisions relating to conducting a vacatur hearing under CP § 8-301.1. The

cross-reference states: “For the right of a victim or victim’s representative to address the

court during a sentencing or disposition hearing, see … [CP] § 11-403.” Notably, the cross-

reference refers to § 11-403(a)’s phrase “sentencing or disposition hearing,” which by

definition includes a hearing in which an alteration of a sentence is considered. In addition,

the Reporter’s Note to Rule 4-333 states that the cross-reference was included “to highlight

the right of the victim or victim’s representative to address the court during a sentencing

or disposition hearing.” Md. Rule 4-333, rep.’s note at 17. This Reporter’s Note was before

the Court when it voted to adopt Rule 4-333, including the cross-reference to CP § 11-403.

Regardless of whether any member of this Court expressly discussed the meaning of the

cross-reference at the Rules Meeting when the Rule was considered, it is clear that in

adopting Maryland Rule 8-433, which implements CP § 8-301.1, this Court was of the

56

opinion that a victim has a right to be heard at a vacatur hearing and that the victim’s right

to be heard is governed by CP § 11-403. There would be no reason to highlight the victim’s

right to be heard under § 11-403 with a cross-reference if the Rules Committee and,

ultimately, this Court believed that this right does not apply at a vacatur hearing. If there

were no link between conducting a vacatur hearing under CP § 8-301.1 and the right to be

heard provided in CP § 11-403, this Court’s adoption of the cross-reference would have

been superfluous. 26

26

Amicus Curiae National Association of Criminal Defense Lawyers argues that the

purpose of the cross-reference in Rule 4-333 is to contrast the express grant of the right to

be heard at a sentencing hearing in CP § 11-403 with the absence of such an express right

in the language of the Vacatur Statute; see also Lee, 257 Md. App. at 546 (“This cross-

reference, … read in context with the statutory scheme, and in the absence of specific

language in Rule 4-333 indicating that the victim has a right to be heard, suggests that it is

listed as a comparison to victims’ rights in sentencing hearings, where the victim does have

the right to be heard.”). As discussed in the text, we view the cross-reference differently.

Mr. Syed correctly notes that the cross-reference to § 11-403 is not part of Rule

4-333 itself. See Md. Rule 1-201(e) (“Headings, subheadings, cross references, committee

notes, source references, and annotations are not part of these rules.”). However, a cross-

reference may nevertheless aid in interpretating the rule in which it is contained or a related

statute. See, e.g., Alarcon-Ozoria v. State, 477 Md. 75, 105-06 (2021) (citing, among other

things, a Rules Committee cross-reference to a case and “persuasive commentary of the

Rules Committee” to determine compliance with the due diligence requirements of Rule

4-263, explaining that “[t]he Rules Committee added ... the cross-reference ... to illustrate,

in part, the limits of the obligation of due diligence”); O’Donnell v. McGann, 310 Md. 342,

349-50 (1987) (concluding that former Rule H4(a) “was clearly applicable to supersedeas

bonds” in part because “a cross reference incorporated at the time of the adoption of the

H rules stated that ‘[t]he following rules contain other provisions applicable to judicial

bonds’”); Permanent Fin. Corp. v. Taro, 71 Md. App. 489, 494-95 & n.6 (1987)

(concluding that former Rule BD1 “implicitly acknowledge[d]” certain limits to the

doctrine of lis pendens, in part because the rule included a cross-reference to a property

law treatise that espoused those limits).

57

To summarize our analysis so far, we conclude that CP § 11-403 is unambiguous.

The plain language of § 11-403 provides that a victim has the right to be heard at “a hearing

at which the imposition of a sentence, disposition in a juvenile court proceeding, or

alteration of a sentence … is considered.” CP § 11-403(a) (emphasis added). As discussed,

the vacatur of a conviction necessarily results in the alteration of a sentence.

To the extent one can argue that there is any ambiguity in CP § 11-403, nothing in

the legislative history of that statute, or in the legislative history of Article 47, or in any

other source we have located suggests that the General Assembly intended for victims to

have the right to be heard only where a sentence may be reduced but the underlying

conviction will remain intact. To the contrary, the concerns that led to the inclusion of the

right to be heard in Article 47 and the implementation of that right in the VRA included

concepts such as the emotional toll of being a victim, the need for closure, and recovery

from trauma – concepts that are implicated as much in the vacatur context as they are at an

original sentencing hearing or at a hearing on a motion to modify a sentence. For example,

testifying in support of the proposed constitutional amendment, the National Director of

Justice Fellowship observed: “If crime victims get their day in court, it is most often as a

witness for the state. Even then, most victims find that no matter how effectively they

present their testimony to a judge or jury, many of their concerns are not addressed. Usually

victims are not allowed to talk about their fear or anger or about the emotional cost of their

losses[.]” Prepared Statement of Richard L. Templeton, National Dir., Justice Fellowship

in support of S.B. 300 (Feb. 10, 1994); see also Letter from Eugene P. Bartell, Exec. Dir.,

Cmty. Servs. Admin., to Hon. Joseph F. Vallario in support of S.B. 300 at 1-2 (March 29,

58

1994) (opining that the constitutional amendment “will make the criminal justice system

fair and just for victims of crime” as “[t]he right to be informed, to be present and to be

heard is key to the recovery from the trauma of victimization”).

Similarly, victims and victims’ rights organizations urged passage of the VRA, in

part, because the right to be heard implemented by that legislation would help provide

“closure.” See, e.g., CrimeStrike, Memorandum of Support re: House Bill 768, The

Victims’ Rights Act of 1997 at 1-2 (Feb. 25, 1997) (“All of the ‘details’ in HB 768 are

necessary to implement crime victims’ rights, but CrimeStrike particularly wants to

highlight the importance of victim notification and articulation during post-conviction

proceedings.… The system, in effect, was denying [family members of homicide victims]

closure they needed to come to terms with their tremendous loss.”) (emphasis added).

At the Vacatur Hearing, Mr. Lee told the court that he had “been living with this for

20 plus years and every day when I think it’s over … [i]t always comes back. And it’s not

just me, killing me and killing my mother and it’s really tough … just going through this

again and again and again…. [I]t’s living a nightmare over and over again.” He described

the same type of emotional toll, lack of closure, and re-traumatization that prompted the

General Assemblies of the 1990s to pass the legislation that became Article 47 and to enact

the VRA. In the absence of any indication in the legislative history of the VRA that the

General Assembly intended to distinguish between a victim’s emotional toll when a

sentence may be reduced and a victim’s emotional toll when a conviction may be set aside

entirely by way of vacatur, we decline to interpret CP § 11-403 in a way that would do just

that.

59

Finally, an interpretation of CP § 11-403 that excludes a vacatur hearing from

inclusion as “a hearing at which the … alteration of a sentence … is considered” would

lead to absurd results. As the State aptly puts it in its brief, “[i]f a victim has the right to

address the court before the mere alteration of a sentence, surely a victim has the same right

to address the court when a sentence may be vacated entirely.” For example, suppose a

defendant who is sentenced to serve 20 years in prison for a violent crime timely moves

for a sentence modification under Maryland Rule 4-345(e). Shortly before the five-year

time limit to rule on such a motion is set to expire, the court sets the motion in for a hearing.

It is beyond dispute that, even if Maryland Rule 4-345(e)(3) did not refer to a victim’s right

“to be heard as allowed by law” on such a motion, CP § 11-403 would require the court to

allow the victim to be heard before granting the defendant’s motion for a sentence

reduction. Now imagine that, after hearing from the victim who opposes any reduction in

the sentence, the court nevertheless grants the motion and resentences the defendant to

10 years of imprisonment, all suspended. The defendant is immediately released from

prison. The victim will likely be disappointed by the outcome, but the victim can take some

solace from knowing that they were heard.

Now suppose that after the sentence is reduced to a 10-year suspended sentence, the

State moves to vacate the defendant’s conviction under CP § 8-301.1. At the hearing on

the motion to vacate, the circuit court denies the victim’s request to be heard. In Mr. Syed’s

view, that decision would not violate CP § 11-403. According to Mr. Syed, the same victim

who had a right to be heard before the sentence was reduced would have no right to be

heard before the court vacated the sentence entirely. We do not agree that, in implementing

60

the right to be heard at sentence-related hearings in the VRA, the General Assembly

intended to provide a victim with the right to be heard before a court reduces a sentence

but to allow the court to silence the same victim when the entire sentence is on the line.

In sum, we are persuaded by Respondents’ interpretation of CP § 11-403. We hold

that § 11-403 provides a victim with the right to be heard at a vacatur hearing.

d. Article 47

Article 47(b) of the Declaration of Rights also supports our conclusion that a victim

has the right to be heard at a vacatur hearing. Article 47 was enacted in 1994 and guarantees

victims of crimes certain rights. Article 47(a) requires that victims be treated with “dignity,

respect, and sensitivity” by State agents during all phases of the criminal justice process.

Article 47(b) provides:

In a case originating by indictment or information filed in a circuit court, a

victim of crime shall have the right to be informed of the rights established

in this Article and, upon request and if practicable, to be notified of, to attend,

and to be heard at a criminal justice proceeding, as these rights are

implemented and the terms “crime”, “criminal justice proceeding”, and

“victim” are specified by law.

We will not dwell on the phrase “upon request” in Article 47(b), as its application will

depend on the facts of each case. Here, Mr. Lee made clear his request to be heard at the

Vacatur Hearing.

The “if practicable” language also need not detain us long. The bill file for the

legislation that was the prerequisite for placement of Article 47 on the ballot contains a

letter from Assistant Attorney General Robert A. Zarnoch, Counsel to the General

Assembly, to Governor William Donald Schaefer’s Chief Legislative Officer concerning

61

the proposed constitutional amendment. In his letter, AAG Zarnoch wrote that

“practicable” ordinarily means “that which is ‘capable of being put into practice, done[,]

or accomplished.’” Letter from AAG Robert A. Zarnoch to Bonnie A. Kirkland, at 3 (Feb.

4, 1994) (quoting Holyfield v. State, 63 S.W.2d 386, 388 (Tex. Crim. App. 1933)). Under

this definition of “practicable,” it is clear that it is practicable for a circuit court to allow a

victim to be heard at a vacatur hearing. 27 Indeed, the circuit court permitted Mr. Lee to

speak at the Vacatur Hearing, albeit before the parties made their presentations in support

of the Vacatur Motion. 28 Thus, the only language in Article 47 concerning the right to be

heard that could affect Mr. Lee’s right to be heard at a vacatur hearing is the phrase “as

these rights are implemented[.]”

But, the language of Article 47(b) is plain and unambiguous: it instructs that a

victim’s right to notice, to attend, and be heard at a criminal justice proceeding be

implemented where the relevant terms are implicated by law and where it is practicable to

do so. In its plain language, Article 47(b) is a broad grant of the right to be heard (and other

rights specified in that provision). To the extent the rights referenced in Article 47(b) did

27

In contrast, providing a victim with a right to testify or otherwise be heard at a

criminal trial would not be practicable. See Letter from AAG Robert A. Zarnoch to

Del. Brian E. Frosh, at 1-2 (Feb. 18, 1994) (reasoning that it would not be practicable to

allow a victim to testify as a witness at trial if the victim has not been called to do so by

either side).

28

As discussed below, a victim must be permitted to address the merits of the

parties’ presentations in support of a vacatur motion if the victim (or the victim’s counsel)

wishes to do so. However, the fact that Mr. Lee spoke at all at the Vacatur Hearing

demonstrates that it is practicable to permit a victim to be heard at such a hearing. At oral

argument, counsel for Mr. Syed acknowledged this point.

62

not yet exist in Maryland law, the constitutional amendment directed that the General

Assembly “implement” them, where “practicable” in “criminal justice proceedings,” in

order to give form to those rights. Thus, Article 47 was not self-executing.

In turn, the General Assembly has created new criminal justice proceedings and has

implemented new and broader rights for victims since Article 47 went into effect. The plain

language of Article 47 dictates that, as such new or additional rights relating to notice,

attendance, and being heard are “implemented” – thereby obtaining the force of law – they

take on constitutional significance. That is, Article 47 prevents the General Assembly from

repealing any right to notice, to attendance, or to be heard at a criminal justice proceeding

after that right is enacted, in the absence of a new constitutional amendment authorizing

such legislative action. See Conaway v. Deane, 401 Md. 219, 315 (2007) (“As the Supreme

Court stated, ‘[b]y extending constitutional protection to an asserted right or liberty

interest, we, to a great extent, place the matter outside the arena of public debate and

legislative action.’”) (quoting Washington v. Glucksberg, 521 U.S. 702, 720 (1997)),

abrogated on other grounds by Obergefell v. Hodges, 576 U.S. 644 (2015); Pa. R.R. Co.

in Md. v. Balt. & Ohio R.R. Co., 60 Md. 263, 267 (1883) (railroad company charter that

was “within the protection of the Constitution of the United States … could not therefore

be repealed, or in any manner impaired or affected by any subsequent legislation to which

the company did not give its assent or accept”). 29

29

A letter from an organization in support of the legislation that put Article 47 on

the ballot made this point: “Providing the … rights [of notice, attendance, and to be heard]

by statute is not an acceptable approach. Statutes are instruments of social policy and can

be easily changed to reflect current views. It was precisely for this reason that the framers

63

The VRA implemented a victim’s constitutional rights to notice of, and to be heard

at, certain criminal justice proceedings, and expanded a victim’s right to attend a

defendant’s trial. And some victims’ rights laws in effect today are broader still than the

rights that were enacted shortly after the passage of Article 47. Compare 1996 Md. Laws

3324 (ch. 585) (allowing victim to be sequestered after a general finding of good cause)

with 2001 Md. Laws 322-23 (ch. 10) (setting forth specific findings of fact that a court

must make on the record before sequestering a victim). Once the General Assembly

implemented victims’ rights to notice, attendance, and to be heard in the VRA and in

subsequent legislation, the General Assembly could not repeal those provisions, barring a

subsequent constitutional amendment that provided legislative authority to do so. In effect,

Article 47 creates a one-way ratchet for the rights of notice, attendance, and to be heard:

any new victims’ rights provisions that are “implemented” regarding these rights obtain

the same constitutional protection that applies to pre-existing victims’ rights laws, meaning

that post-Article 47 provisions regarding notice, attendance, and the right to be heard may

not be repealed, absent a change to Article 47. If the opposite were true – if the General

Assembly could repeal or otherwise weaken victims’ rights without amending Article 47

– then the fact that these rights are enshrined in the Declaration of Rights would be

meaningless. See Schisler v. State, 394 Md. 519, 590 n.51 (2006) (“Whatever the extent of

the Legislature's ‘plenary’ power, it is subordinate to the ‘organic’ law of this State – the

of the Constitution included protections for [criminal defendants] in the Bill of Rights.”

Letter from Karen A. Smith, Legal Dir., People Against Child Abuse, Inc. in support of

S.B. 300 (Feb. 9, 1994).

64

Maryland Constitution. When the provisions of the Constitution are violated, the ‘plenary’

power, if any, of the Legislature must yield.”) (plurality op.).

Against this constitutional backdrop, the relevant question becomes: Would it

violate Article 47 for the General Assembly to pass a law that creates a new “criminal

justice proceeding” – such as a hearing on a motion to vacate under CP § 8-301.1 – that

fails to grant a victim the right to be heard at that proceeding, where it would be practicable

to permit a victim to be heard upon request?

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. If, as is the case with CP § 8-301.1, there has not been a legislative finding of

impracticability, 30 a reviewing court must consider whether the new criminal justice

30

Contrary to expressing concerns about practicability, during consideration of the

bill that became CP § 8-301.1 several legislators and witnesses/commenters stated that

victims would be allowed to be heard at vacatur hearings. In his opening statement at the

House Judiciary Committee hearing on the bill, Delegate Erek Barron, who sponsored the

legislation, said that “any named victim should be heard” during a vacatur hearing.

Statement of Del. Barron, House Jud. Comm. Hearing, Feb. 26, 2019 (available at

https://perma.cc/JCL2-EF6G). In response to a question from Delegate Charles Sydnor

whether a victim would have the right to be heard at a vacatur hearing, Tony Gioia, a

representative of the Baltimore City State’s Attorney’s Office, stated that victims “would

have the right to address the court, they most certainly would.” Maryland Public Defender

Paul DeWolfe stated that it was important for victims “not only to be present” at vacatur

hearings but also to “weigh in and give statement[s].” In addition, the bill file for the

legislation includes a letter from Professor Douglas Colbert of the University of Maryland,

Francis King Carey School of Law, in support of the bill, in which Professor Colbert wrote

65

proceeding is similar to one or more extant criminal justice proceedings where the General

Assembly has previously granted victims the right(s) that is missing with respect to the

new criminal justice proceeding. If the missing right has previously been implemented with

respect to a similar criminal justice proceeding, then the new statute that omits the right in

question violates Article 47.

A contrary regime – in which the General Assembly could opt to provide victims in

one or more criminal justice proceedings with the rights to notice, attendance, and to be

heard, but could opt not to provide those same rights to victims with respect to similar

criminal justice proceedings – would fail to live up to the constitutional requirement that

all victims be treated with dignity, respect, and sensitivity. We reject the notion that, in

adopting Article 47, Maryland voters intended to allow the General Assembly to give

victims in some criminal justice proceedings more rights than victims in similar criminal

justice proceedings, where it is practicable to give both sets of victims the same rights. 31

Our view of what Article 47 requires in the context of a victim’s right to be heard is

consistent with additional advice that AAG Zarnoch provided during the General

Assembly’s consideration of the legislation that led to adoption of the constitutional

that the bill “provides the requisite due process that allows a judge to review the grounds

raised and the newly-discovered evidence presented, while giving notice to the defendant

and crime victim to attend and presumably the opportunity to respond and be heard.” Letter

from Douglas Colbert to Del. Luke Clippinger (Feb. 25, 2019).

31

As Mr. Syed explained in his opening brief, “Article 47 of the Declaration of

Rights and its implementing statutes couch the rights of victims and their representatives

in terms of what is ‘practicable.’ Under Article 47, ‘a victim of crime shall have the right

… upon request and if practicable, to be notified of, to attend, and to be heard at a criminal

justice proceeding, as these rights are implemented[.]’” Petitioner’s Brief at 30.

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amendment. In response to Delegate Brian Frosh’s question concerning whether, under the

proposed constitutional amendment, a victim would have the right to testify on demand at

a criminal trial, AAG Zarnoch stated:

[I]t is likely that the proposed amendment will be construed with an eye on

victim’s rights provisions found in existing law, particularly Art. 27, §761.

Section 761(12)[32] suggests the kind of right to be “heard” that is

contemplated by the proposed amendment. Under this statute a victim may

address the judge or jury or have a victim impact statement read by the judge

and jury at sentencing, before the imposition of the sentence or at any hearing

to consider altering the sentence. No mention is made of a victim’s right to

testify during the trial.

Letter from AAG Robert A. Zarnoch to Del. Brian E. Frosh, at 2 (Feb. 18, 1994). AAG

Zarnoch also advised that, under the proposed constitutional amendment, “[w]hen it is

reasonably possible to provide the rights in question,” – i.e., when it is “practicable” to do

so – “they must be provided.” Letter from AAG Robert A. Zarnoch to Bonnie A. Kirkland,

at 3 (Feb. 4, 1994).

AAG Zarnoch’s analysis is on point here. Article 47 requires that victims be

afforded the rights to notice, attendance, and to be heard in connection with criminal justice

proceedings that are similar to those proceedings as to which victims have such rights “in

existing law,” unless it is clear that the General Assembly has determined it is not

practicable – i.e., reasonably possible – to do so. Even if CP § 11-403 were not broad

enough to apply to a vacatur hearing, we would conclude that a hearing where the

32

As mentioned above, Article 27, § 761(12) was a pre-Article 47 provision in the

Maryland Code that allowed a victim (on request of the State’s Attorney and in the

discretion of the court) to address the court or jury “at sentencing before the imposition of

sentence or at any hearing to consider altering the sentence.” Md. Code Ann., art. 27,

§ 761(1) (1987 Repl.).

67

“alteration of a sentence” is considered is similar enough to a vacatur hearing to require the

provision of a right to be heard at the latter proceeding. 33

In granting Mr. Lee’s cross-petition for a writ of certiorari, we agreed to decide

whether a victim has the right to be heard at a vacatur hearing. It is beyond dispute that a

victim’s right to be heard in Maryland criminal justice proceedings emanates from Article

47(b). Given Article 47’s centrality to questions concerning victims’ rights, the parties

relied on Article 47 in their briefs for many points. In his opening brief, quoting the text of

Article 47, Mr. Syed asserted that “Article 47 of the Declaration of Rights and its

implementing statutes couch the rights of victims and their representatives in terms of what

is ‘practicable.’” Petitioner’s Brief at 30. Also, quoting Article 47, Mr. Lee stated that

“[t]he Maryland Declaration of Rights requires state agents to treat crime victims with

‘dignity, respect and sensitivity during all phases of the criminal justice process[,]’” and

that “[t]his broad grant engendered a suite of victims’ rights.” Brief for Appellee/Cross-

Appellant at 20. In its brief, the State noted that “victims’ rights in Maryland have both a

constitutional and statutory dimension.” Brief for Respondent, the State of Maryland at 24.

And, adding to the parties’ discussion of Article 47, Mr. Lee pointed out that the right to

be heard is a constitutional right. Reply Brief for Appellee/Cross-Appellant at 1-2.

Article 47 was also discussed by several amici curiae in their briefs. See, e.g., Brief

of Amicus Curiae Maryland Crime Victims’ Resource Center, Inc. at 14 (arguing that

33

Because CP § 11-403 provides a victim with the right to be heard at a vacatur

hearing, we need not decide whether the Vacatur Statute may be unconstitutional on its

face or as applied to Mr. Lee.

68

caselaw, the Maryland Rules, and CP § 11-403 “supply the legal authority, guaranteed by

Article 47(a)&(b) of the Maryland Declaration of Rights, that crime victims must be heard

at any criminal justice proceeding when the alteration of a sentence … is being

considered”); Brief of Amicus Curiae The National Crime Victim Law Institute at 2-3

(“The Maryland Constitution contains a clear mandate – victims ‘shall be treated by agents

of the State with dignity, respect, and sensitivity during all phases of the criminal justice

process.’”) (quoting Article 47(a)); Amicus Curiae Brief of the National Association of

Criminal Defense Lawyers in Support of Petitioner Adnan Syed at 5-6 (citing Article 47

for the proposition that the rights to notice, attendance, and to be heard do not “apply in

every type of proceeding”).

At oral argument, there were multiple questions concerning the right to be heard

referenced in Article 47, and all counsel addressed Article 47 in that regard. See Oral

Argument at 20:20 (in response to question about Article 47, Mr. Syed’s counsel stating

that rights in existence at the time Article 47 was adopted may not be changed without a

further constitutional amendment); 27:50 (in discussing the right to be heard, Mr. Lee’s

counsel referring to “the penumbra of the constitutional protections that are provided to

victims”); 28:35 (Mr. Lee’s counsel arguing that the right to be heard exists in Article 47);

30:30 (Mr. Lee’s counsel arguing that when statute is silent about right to be heard, that

right exists as provided by Constitution); 52:55 (State agreeing with Mr. Lee that, with

respect to the right to be heard, “there’s a constitutional principle generally that’s at play

here”).

69

Thus, Justice Booth is incorrect when she states that “the Majority has decided to

reach constitutional issues that were not argued or briefed before this Court.” Dissenting

Op. of Booth, J., at 59. Justice Booth also is wrong when she characterizes our analysis as

“crossing the impermissible separation of powers line” and “attempting to tie the General

Assembly’s hands when it enacts future legislation.” Dissenting Op. of Booth, J., at 50, 62.

To the contrary, we engage here in the core judicial function of constitutional

interpretation. No more, no less.

2. A Victim’s Right to Be Heard at a Vacatur Hearing Includes the Right to Address

the Merits of the Motion to Vacate, Personally or Through Counsel.

The circuit court permitted Mr. Lee to address the court before what the court

described as the start of the Vacatur Hearing. But Mr. Lee did not have the benefit of

hearing the parties’ presentations in support of the Vacatur Motion before he addressed the

court. In addition, the court declined Mr. Kelly’s request to “just say a couple of sentences”

after Mr. Lee concluded his remarks. 34

Mr. Lee argues that a victim has a right not just to speak generally at a vacatur

hearing, but has the right specifically “to address the evidence[.]” According to Mr. Lee,

allowing a victim to address the evidence is necessary because the prosecutor and

defendant are aligned at a vacatur hearing. Mr. Lee asserts that, at a vacatur hearing, the

victim is the one potential adversary present who may assist the circuit court’s factfinding

with respect to the non-discretionary aspects of the inquiry by pointing out problems with

34

In denying Mr. Kelly’s request to speak briefly, the circuit court noted that it had

heard from Mr. Kelly earlier. However, the court had only heard from Mr. Kelly

concerning the motion for a continuance of the hearing.

70

the parties’ positions. On appeal, the State agrees that, “where the victim [is] the only one

taking an adversarial position to the granting of the motion, the victim’s input could alert

the circuit court to shortcomings in the State’s presentation or lead the court to ask

questions that it might not otherwise have posed.”

We agree with Respondents that the victim’s right to be heard at a vacatur hearing

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. After hearing the evidence

adduced at the hearing, if the victim believes the State has not met its burden of proof under

CP § 8-301.1(g), 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. If, as happened here, the victim is only

permitted to speak before the parties have concluded their presentations, the victim does

not have the opportunity to fully address the merits of the motion. This undermines the

victim’s ability to have meaningful input into the court’s decision-making process, thereby

devaluing the victim’s right to be heard. Cf. Antoine, 245 Md. App. at 547 (reasoning that

“[t]he statutory rights to present victim impact evidence are … meaningful only if they are

afforded before a trial court formally binds itself to a particular disposition of a case”).

Having gone through the process that led to the conviction of the defendant – which

sometimes can involve years of stressful proceedings – a victim should not be forced to

stand silent concerning what the victim believes to be the flaws in the prosecutor’s

evidentiary submission or the legal correctness of a vacatur motion. Such a scenario would

not treat the victim with the dignity, respect, and sensitivity that Article 47 requires.

71

If a victim is represented by counsel at a vacatur hearing, the court must permit

counsel to address the merits of the motion to vacate following the parties’ presentations

in support of the motion, if counsel wishes to do so. Cf. Md. Rule 1-331 (“Unless otherwise

expressly provided and when permitted by law, a party’s attorney may perform any act

required or permitted by these rules to be performed by that party.”). To that end, the judge

presiding at a vacatur hearing where a victim is represented by counsel should typically

inquire whether the victim, the victim’s attorney, or both the victim and the victim’s

attorney wish to be heard. When the victim has a potential legal issue to raise before the

court – and especially when the issue is complex – the assistance of the victim’s counsel

can be critical in vindicating the victim’s right to be heard meaningfully. Additionally, in

a case like this one, where the prosecutor and defendant both seek a vacatur, the victim’s

attorney can help the court, just as the adversarial process aids the court in virtually every

other court proceeding. Because the parties here were not in an adversarial posture on the

issue before the circuit court, neither the State nor Mr. Syed was well-positioned to present

a contrary position to assist the circuit court in analyzing the vacatur issue. By presenting

adversarial positions in these sorts of cases, victims and their counsel can aid the judicial

factfinding and decision-making process. 35 Cf. In re Riddlemoser, 317 Md. 496, 505 (1989)

35

The benefit of adversarial proceedings to judicial decision-making is well-

recognized generally. For instance, the U.S. Supreme Court regularly invites amici to

participate in briefing, among other things, to fill the gap in argument when a litigant

changes course or abandons a position, when the Court raises an issue that it wants to

consider, or when a party simply fails to participate. See generally Katherine Shaw, Friends

of the Court: Evaluating the Supreme Court’s Amicus Invitations, 101 Cornell L. Rev.

1533, 1565-68 (2016) (noting that the Court’s amicus invitations can avoid “undermining

72

(noting that questions with “serious implications” tend to show “the wisdom of an

adversarial airing between contesting parties, which is so essential to the integrity of the

judicial process”); White v. State, 223 Md. App. 353, 390 (2015) (noting the benefit of

“rigorous adversarial testing that is the norm of Anglo-American criminal proceedings”)

(internal quotation marks and citation omitted).

In this case, Mr. Lee was not afforded the opportunity personally or through his

attorney to address the merits of the Vacatur Motion following the parties’ presentations in

support of the motion. For the reasons discussed above, this was error. In addition, it was

error for the circuit court to conduct an off-the-record in camera hearing at which the court

reviewed evidence in support of the Vacatur Motion – evidence that the parties did not

introduce at the subsequent hearing in open court. 36 Thus, even if Mr. Lee had been

permitted to speak at the Vacatur Hearing following the presentations by Ms. Feldman and

Ms. Suter in support of the Vacatur Motion, Mr. Lee would not have been able to address

the complete evidentiary submission. Going forward, barring unusual circumstances that

[the Court’s] ability to answer important questions” where there is not a sufficient

adversarial presentation from the parties).

36

The record could lead a reasonable observer to infer that the circuit court decided

to grant the Vacatur Motion based on the in camera submission it received in chambers,

and that the hearing in open court a few days later was a formality. As Justice Watts noted

at oral argument, there seemed to be a pre-determined understanding at the Vacatur

Hearing of what the Brady violation would constitute, as well as a pre-determined

knowledge between the parties that Mr. Syed would be placed on electronic monitoring

and that there would be a press conference outside the courthouse immediately after the

hearing. This raises the concern that the off-the-record in camera hearing – of which Mr.

Lee had no notice and in which neither he nor his counsel participated in any way – was

the hearing where the court effectively ruled on the Vacatur Motion, and that the result of

the hearing that occurred in open court was a foregone conclusion.

73

are not present here (such as a victim’s representative being a suspect), courts should ensure

that victims are able to respond to all evidence upon which the parties choose to rely in

seeking vacatur of a conviction under CP § 8-301.1. 37

3. A Victim Does Not Have the Right to Call Witnesses or Present Evidence at a

Vacatur Hearing.

Mr. Lee further argues that a victim has the right to participate as a party in a vacatur

hearing, including cross-examining witnesses called by the State’s Attorney and the

defense, and calling witnesses of their own. The State and Mr. Syed disagree with Mr.

Lee’s view that a victim has full participatory rights at a vacatur hearing. We agree with

the State and Mr. Syed on this point.

There is nothing in Article 47, the Vacatur Statute, or Maryland’s other victims’

rights statutes that contemplates giving party status to a victim. Indeed, it would be

problematic to permit victims to participate in a vacatur hearing as a party because doing

so would directly contradict Maryland law, which is clear on this issue. See CP § 11-103(b)

(a victim is “not a party to a criminal or juvenile proceeding”); Md. Rule 8-111(c) (same);

see also Lopez-Sanchez v. State, 388 Md. 214, 224 (2005) (“The non-party status of crime

37

We do not suggest that a victim has the right to attend every chambers conference

or every in camera hearing that a court may decide to conduct in a criminal case. Certainly,

that would not be practicable. Our concern is with the decision of the court to conduct a

portion of the vacatur hearing in the court’s chambers on September 16, in the absence of

Mr. Lee and his counsel. The production of all evidence in support of the Vacatur Motion

should have occurred at the hearing in the courtroom on September 19. If any confidential

matters had needed to be disclosed, Ms. Feldman, Ms. Suter, and Mr. Kelly could have

gone into chambers together, and the court could have taken appropriate steps to ensure

that, while such confidential information became part of the court record, it would remain

confidential as necessary thereafter.

74

victims has been a central precept of Maryland criminal jurisprudence ever since public

prosecution became the sole method of enforcing this State’s criminal law.”).

Furthermore, a circuit court can sufficiently analyze a vacatur motion without the

victim acting as a party to the proceeding. Allowing a victim to address the merits of the

motion following the parties’ presentations is an important part of ensuring that the circuit

court has sufficient information and argument to make an informed decision on a vacatur

motion. We decline to read more into the right of a victim to be heard at a vacatur hearing. 38

C. A Victim’s Right to Attend a Vacatur Hearing

We next consider whether Mr. Lee had the right to attend the Vacatur Hearing in

person. Mr. Syed argues that remotely attending the Vacatur Hearing satisfied Mr. Lee’s

right to attend. Respondents contend that Mr. Lee had the right to attend the Vacatur

Hearing in person if doing so was practicable. Because, as discussed above, a victim has

the right to be heard at a vacatur hearing, and because the hearing in this case was held in

person, we hold that Mr. Lee had the right to attend the hearing in person. The circuit

court’s denial of the requested one-week continuance prevented Mr. Lee from receiving a

reasonable opportunity to attend in person and, therefore, resulted in a violation of Mr.

Lee’s right to attend the hearing.

We first examine the language concerning attendance in the Vacatur Statute: “A

victim or victim’s representative has the right to attend a hearing on a motion filed under

38

We also decline to express any opinion concerning the scope of a victim’s right

to be heard beyond the context of a vacatur hearing.

75

this section, as provided under § 11-102 of this article.” CP § 8-301.1(d)(2). Section 11-

102, in turn, provides:

(a) If practicable, a victim or victim’s representative who has filed a

notification request form under § 11-104 of this subtitle has the right to

attend any proceeding in which the right to appear has been granted to a

defendant.

(b) As provided in § 9-205 of the Courts Article, a person may not be

deprived of employment solely because of job time lost because the

person attended a proceeding that the person has a right to attend under

this section.

CP § 11-102. The Vacatur Statute does not expressly reference a right of the defendant to

appear at a vacatur hearing. However, the Vacatur Rule requires that, as part of the notice

to a defendant, the State’s Attorney inform the defendant “of the right … if a hearing is set,

to attend the hearing.” Md. Rule 4-333(e). Based on this provision in the Vacatur Rule, we

conclude that defendants have been granted the right to appear at vacatur hearings and that,

therefore, victims who have filed the necessary notification request forms have a right to

attend such hearings. The question remains, however, whether a victim’s right to attend a

vacatur hearing includes the right to attend in person.

The ordinary meaning of “attend” is “to be present at; go to.” Webster’s Ninth New

Collegiate Dictionary (1984). Prior to the COVID-19 pandemic, the ordinary and popular

meaning of “attend” in the context of a court hearing was “to be present at” or “go to” a

hearing in person, as most court hearings were held in person. However, after being forced

to move work, medical, and social appointments online during pandemic-related

shutdowns, many people are no longer as quick to assume that meetings or hearings will

be held in person. Today, a reasonable person could understand “attending” a court hearing

76

to include both in-person attendance and remote attendance facilitated by a video

conferencing platform. Indeed, this is a reasonable understanding in the context of judicial

proceedings, as remote participation by some or all parties is now allowed in certain

criminal, delinquency, and civil proceedings. See Md. Rule 21-301 (criminal and

delinquency proceedings); Md. Rule 21-201 (civil proceedings). The Vacatur Statute,

however, was enacted in 2019, prior to the COVID-19 pandemic. Thus, a good argument

can be made that the “right to attend,” as used in CP § 8-301.1(d)(2), means the right to

attend a vacatur hearing in person.

The General Assembly’s incorporation of CP § 11-102 in the Vacatur Statute

sharpens o

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