Tuesday, May 15, 2018
I think there are two falsehoods at the center of the State's petition for writ of certiorari in the Adnan Syed case. These apparent falsehoods are significant because I think of them as necessary but not sufficient conditions for the State to win on appeal. So, what are these two likely falsehoods?
Alibi by Routine
The first of these falsehoods can be found on Page 6 of the State's petition:
As part of Syed’s overall trial strategy, his seasoned counsel developed and pursued an "alibi-by-routine" defense, seeking to place Syed on the evening of the victim’s disappearance at school, followed by track practice and then services at his mosque.
Presumably, the State is relying upon trial counsel's alibi notice, which stated that alibi witnesses would testify "as to the defendant's regular attendance at school, track practice, and the Mosque; and that his absence on January 13, 1999 would have been noticed." In other words, the State wants to claim that the defense presented the jury with a routine in which Adnan was at school between the end of classes and the start of track practice.
This is potentially a very important argument by the State. They're basically claiming that it made sense not to contact Asia McClain because her alibi would have conflicted with the "alibi by routine" defense that they presented at trial. If this decision could be construed as trial strategy, then maybe it was effective assistance of counsel (despite the fact that the Woodlawn Public Library was adjacent to Woodlawn High School).
But here's the thing: As I've noted, in Maryland, an alibi notice is just a discovery tool to let the State know the alibi defense that might be presented a trial; an alibi notice is not seen by the jury, and it's not admissible for substantive or impeachment purposes. See Simms v. State. So, what did the jury actually hear in terms of an alibi routine?
Track: The defense called track Coach Michael Sye to testify as an alibi witness. He was unable to testify that Adnan was at track practice on January 13th, but he did testify that Adnan "regularly attended practice."
Mosque: The defense called Syed Rahman (Adnan's father), Saad Chaudry (Adnan's best friend), Saad P (Adnan's friend), and Maqbool P (Mosque elder) as alibi witnesses. The latter three witnesses were unable to testify that Adnan was at the Mosque on January 13th, but they all testified that Adnan regularly went to the Mosque during Ramadan. Meanwhile, Adnan's father testified both to Adnan's regular attendance at the Mosque as well as his attendance on January 13th.
School: The defense didn't call any witnesses to testify that Adnan regularly remained at the school between the end of school and the start of track practice.
This last part is significant because the State is trying to create a false dichotomy. Under this false dichotomy, Cristina Gutierrez had two options:
(1) Call witnesses and/or present evidence that Adnan routinely remained at school between the end of class and the start of practice; or
(2) Contact/call Asia McClain, whose testimony about seeing Adnan at the public library would have contradicted this alibi-by routine.
But, as noted, this was a false dichotomy because the defense presented the jury with no witnesses or evidence to establish a routine of Adnan remaining at school between the end of class and the start of track practices. Three fellow students -- Aisha, Debbie, and Becky -- testified, and the defense didn't ask any of them about Adnan regularly remaining at school until the start of track practice. Because the defense presented no alibi-by-routine evidence about this part of Adnan's day, there was nothing for Asia to contradict; therefore, alibi-by-routine was not a valid reason for the defense to fail to contact Asia.
The Library Alibi Contradicted What Adnan Told the Police and the Defense
In its petition, the State argues once again that "the alibi at issue in the matter before the court contradicted what Syed told the police and his attorney." This is the argument that (1) just won't die; and (2) the State just won't support.
Again, this could be a very significant argument for the State...or maybe not. You might recall this post that I did about Towns v. Smith, 2003 WL 21488333 (E.D.Mich. 2003) and Towns v. Smith, 395 F.3d 251 (6th Cir. 2005). These were cases in which the defendant told the police that he was (as per his routine) at an arcade on the day of a murder, and the Sixth Circuit found that trial counsel was ineffective based on failure to contact an alibi witness who said the defendant was actually helping her move on that day.
But, putting those cases aside, the bigger problem for the State is that they continue to lack any support for the argument that the library alibi contradicts what Adnan told police or defense counsel. I covered this point in detail in this blog post under the heading "Adnan Said He Stayed at School Until Track Practice Began." That post was noting how the citations in a prior brief by the State didn't support its claim, and the State has never followed up by providing any factual support for its position that the library alibi contradicts what Adnan told the police or his attorney. On the other hand, we do have 2 notations from the defense file in which which Adnan is clearly telling the defense team about Asia seeing him in the library after school on January 13th (here and here)
If the State wants to win on appeal, it really needs factual support for one and probably both of these assertions; however, that support is wholly lacking in the record. As a result, it is tough to see the State winning on appeal.