EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, May 30, 2018

Cert Petitions and Finding Where the Truth Lies in the Adnan Syed Appeal

Petitions for writs of certiorari can be funny things. As I noted in yesterday's post,

Certiorari is reserved for issues of "public importance[.]"...Certiorari is generally denied where the "questions presented, the analysis, and the outcome are wholly unremarkable and of interest solely to the litigants." 

What this means is that you will often see litigants taking positions in cert petitions (and answers) that are diametrically opposed to the positions that they will take in later cases. We can see a good example of this in the Adnan Syed case.

The Court of Special Appeals of Maryland found that trial counsel Cristina Gutierrez was ineffective based on failure to contact alibi witness Asia McClain. As the losing party in that court, the State has every incentive to claim that this ruling was as broad as possible and will impact litigants in hundreds of future cases, creating an issue of public importance. And, of course, this is exactly what the State claimed in its petition for writ of certiorari:

The Court of Special Appeals has introduced specific constitutional obligations with potentially far-reaching consequences that are unmoored from prevailing Sixth Amendment law. The new requirement implicates the scope of defense counsel’s Sixth Amendment obligations to investigate specific avenues that are different from, and potentially incompatible with, other potential defenses, threatening to dramatically broaden the work required by the Constitution of defense counsel and stripping them of the discretion and presumption of reasonableness with respect to which leads they pursue and which they forego. Sturdivant v. Maryland Dep't of Health & Mental Hygiene, 436 Md. 584, 589, 84 A.3d 83, 86 (2014) (certiorari was appropriately granted when the case raises a legal question of public importance).

Let's say, however, that the Court of Appeals of Maryland denies cert, meaning that the Court of Special Appeals opinion is the opinion of record. And let's say that five years from now, another defendant claims that his trial counsel was ineffective based upon failure to contact an alibi witness. You better believe that the State will claim that the Syed opinion is limited to its facts and can easily be distinguished from the case at hand.

Meanwhile, as the winning party in the Court of Special Appeals, the defense has every incentive to claim that the court's ruling was simply applying existing law to the specific facts of the case at hand, meaning that it does not involve an issue of public importance. And, of course, that's exactly what the defense did in its Answer in Opposition to Petition for Writ of Certiorari with Conditional Cross-Petition:

That holding as to Syed’s particular facts does not, as the State suggests, impose some sweeping burden on defense attorneys....Much less is the burden a new one. Counsel’s duty to investigate is triggered once a defendant provides the information necessary to identify a witness and “to suggest that the witness’s testimony could provide the defendant with an alibi.”...These conditions will depend on the specific circumstances of each case. Here, Syed triggered this duty when he gave trial counsel letters that offered multiple ways of contacting McClain and stated that McClain was with Syed when the murder supposedly occurred....

Nor did the Court of Special Appeals’ analysis end there. Upon finding that counsel had failed to contact McClain, it still asked “whether defense counsel’s failure was deficient performance under the objective standard of a reasonably competent attorney acting under prevailing norms.”...In this case, the court answered “yes,” finding that “neither a review of the record nor the State’s arguments provide a reasonable basis to justify such failure.”... That is quite true: Syed adduced expert testimony that, under the circumstances, “trial counsel’s performance ‘was well below the minimum required by Strickland[.]’”

Again, let's say that the Court of Appeals of Maryland denies cert, meaning that the Court of Special Appeals opinion is the opinion of record. And, again, let's say that five years from now, another defendant uses the same appellate counsel to claim that his trial counsel was ineffective based upon failure to contact an alibi witness.  You better believe that the defense will claim that the Syed opinion was broad and cannot be distinguished from the case at hand.

So, where does the truth lie? I'd say somewhere in between. On the one hand, I think that the Court of Special Appeals opinion is pretty broad: It's tough for me to imagine circumstances in which trial counsel is deemed effective despite failing to contact an alibi witness brought to her attention by the defendant. Put another way, it's tough to see (m)any plausible reason(s) that would explain trial counsel's failure to contact such an alibi witness.

On the other hand, I don't think that the Court of Special Appeals of Maryland broke any new ground. Many courts, including the Court of Appeals of Maryland, have cited Grooms v. Solem,  923 F.2d 88, 90 (8th Cir. 1991), which held that "[o]nce a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense." And then, there was the recent opinion of the Supreme Court of Connecticut in Skakel v. Commissioner of Correction, 2018 WL 2104577 (Ct. 2018), which included the Syed opinion in a string cite of cases from across the country reaching the same conclusion.

So...who knows? I could easily see the Court of Appeals granting or denying cert in this case. I think the opinion of the Court of Special Appeals in Syed was important but also one that didn't really break any new ground.

-CM

http://lawprofessors.typepad.com/evidenceprof/2018/05/petitions-for-writs-of-certiorari-are-funny-things-as-i-noted-in-yesterdays-post-certiorari-is-reserved-for-issues-of-pu.html

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Comments

I think you are correct. A win for Adnan leaves the law with regard to contacting an alibi witness more or less exactly where it was prior to this case. A win for the state, on the other hand, would vastly curtail the obligation of future defense counsel to investigate alibi witnesses. It would extend precedent that a lawyer won't be found deficient for failing to contact alibi (or other types of) witnesses of dubious if any value to the defense to layers who don't contact alibi witnesses of demonstrated value to the defense.

Posted by: Michael | May 30, 2018 9:14:10 AM

Colin-

A question for you about the legal definition of an "alibi witness".

Is Asia McClain an "alibi witness" just because Syed classified her as such? Judge Welch stated the crux of this case was the confluence of eyewitness testimony plus technical location data re: the 7pm calls. Asia was not an alibi for that time period.

The State did not prove when Syed allegedly killed her; it offered a possibility but readily conceded it was not sure and could have offered others. Also, its main witness contradicted its timeline on the stand.

What's the counterargument here, that Asia isn't an alibi witness?

Posted by: Jonathan | May 30, 2018 12:51:04 PM

Michael: Agreed.

Jonathan: She’d be an alibi witness under the key Court of Appeals of Maryland opinion in In re Parris W., which found ineffective assistance based on subpoenaing alibi witnesses for the wrong trial date/ According to the court:

“Furthermore, it appears that the fifth witness, Diane Cary, may, in fact, have been able to provide proper alibi testimony, since it was proffered that she arrived at her home around 4:30 on the afternoon of the assault, which was approximately thirty miles from the scene of the assault, and that Appellant and his father were there when she arrived. Given the distance between Ms. Cary's home and the place where Morton was assaulted, and given the uncertainty surrounding the time of the assault, Ms. Cary's testimony alone may have been enough to create reasonable doubt in the mind of the hearing judge had she been available to testify.”

Posted by: Colin Miller | May 30, 2018 6:04:22 PM

“The State did not prove when Syed allegedly killed her; it offered a possibility but readily conceded it was not sure and could have offered others. Also, its main witness contradicted its timeline on the stand.”

Jonathan - The state most certainly did not readily concede it was not sure and there could have been others at trial. Quite the opposite. In opening and closing statements, the prosecution hammered away at the “21 Minutes. 21 Minutes after school let out, ladies and gentleman, Hae Min Lee was dead” concept. (Quote paraphrased, I’m no lawyer and so can be lazy not looking up for exact wording like that. That said, it’s pretty damn close to that, over several repetitions.)

Additionally, the jury most surely was never told that the star witness contradicted that timeline. Defense counsel seemingly wasn’t aware of it either, and allowed assertions like “The phone records confirm Jay. Jay confirms the phone records. There’s no two ways around it, these two lines of evidence match in a way that makes them unavoidable to get around.” —and this very much includes the 2:36 call.

Indeed, the prosecution had a big poster board of each and every call on the log blown up, and had witnesses place stickers at each call in order to somehow demonstrate that their testimony matched. Jay was very much sold as perfectly matching a rock solid timeline wherein Hae was dead within 21 minutes of school letting out at 2:15, and Gutierrez was seemingly unaware of the massive contradictions Jay presented, and she certainly didn’t point any out to the jury.

No, everythIng you refer to came during postconviction, in which the state did an about face, even introducing a second possible come-and-get-me call which was appropriately slapped down by Judge Welch as something the state should be estopp from making (ugh... I have no idea how to use that... verb? Adjective? Judicial estoppel: making arguments entirely inconsistent with, in this case, the position state fervently took at trial)

All that to say, Asia most certainly was, in the legal and factual framework of this case, an alibi witness.

Posted by: Paul | May 31, 2018 4:04:01 AM

Like many people, I am troubled by the interpretation of waiver in the appeals process, especially as it has been applied to the cell tower evidence in Adnan’s case. It would seem that the prosecution’s behavior at trial, and on appeal approaches (at best) misconduct, and Gutierrez was clearly functioning below any reasonable professional standard in numerous ways. However, I fear that in reversing the cell tower decision COSA might have set a precedent making it harder for future appellants to litigate their cases; am I right? In Adnan’s case, anyone with any experience of human nature knows that no one on any of his defense teams had the knowledge necessary for a knowing (at least in colloquial language) waiver of the issue.

However, if the court denies cert in the Asia alibi prong, the cell tower issue would seem moot, letting a possibly restrictive precedent stand. In general, would a court in such a situation ever grant cert when they would otherwise deny it so that they have an opportunity to review a precedential decision of a lower court? Or would anyone ever know? If so, someone might spend another 6 months to a year in prison when he or she might have been released.

Posted by: Hal | Jun 1, 2018 11:41:12 AM

Re Cell Tower Cert: It seems obvious to me that the conditional appeal of Adnan's attorneys is the appropriate approach for a backup if the Asia prong decision goes against them. And by analogy to agency, it would seem unethical in any event for Adnan's team to risk lengthening his term by some legal strategem that could only benefit future appellants. Adnan is their sole client. But do the seem ethical considerations apply to an appeals court?

Posted by: Hal | Jun 2, 2018 8:24:02 AM

Hal I’m pretty sure the court can’t hear just the appeal of the winning party. So what happens if they have an issue with just that waiver element Colin?

Posted by: Paul | Jun 4, 2018 2:52:12 PM

Can the Phone Records of the people who supposedly, had incoming calls to Adnan's phone, have their records pulled, and their out going calls cross referenced to the incoming calls on Adnan's phone? Is that data sill available?

Posted by: marci | Jun 5, 2018 4:04:24 PM

Paul:

I always like reading your replies. Good points all. I come to this case dispassionately and with no other agenda than to follow an interesting legal case and learn more.

My thoughts:

Prosecutors are advocates, just as defense attorneys are. Our system requires that they make arguments with the same forcefulness as a given defense attorney would. We the people (who the State is representing, after all) demand that. You seem uncomfortable that the State made claims you disagreed with. Yes, but that's our system. It's the defense counsel's job to rebut.

Also I want to clarify that I was not stating that *at trial* the State "readily conceded it was not sure and could have offered others." (re: when Syed allegedly killed Hae). I was referring to the PCR as you point out. The State is simply saying this: In our view, there were multiple times during that day where the crime could have been committed. At trial, given our knowledge that Asia would not testify, we chose the earlier one. Had Asia testified, we would have chosen a later one. There's no contradiction there. The State is just explaining its trial strategy.

I refer you back to Judge Welch's ruling. In his opinion he was quite critical of the State's case with respect to when the crime was committed. I believe he said it was the "weakest" part of the case. He *agreed* with the State that Asia's testimony would not have helped Adnan, because it did nothing to weaken the strong proof given that at 7pm, Adnan was in Leakin Park.

What was he doing there?

Posted by: Jonathan | Jun 8, 2018 1:14:12 PM

Marci:

I'm curious, what value do you see in learning who had called Adnan that evening? The salient fact would seem to be *where* he was when the calls were made.

Posted by: Jonathan | Jun 8, 2018 1:17:00 PM

Jonathon: I suppose to find out if there was other evidence of whereabouts evident to the caller. Party sounds, a congregation at prayer, a tv show? who knows. Something Adnan or Jay said to the caller?

Posted by: Hal | Jun 11, 2018 4:46:54 PM

Jonathan — Thank you, I appreciate the kind words at the beginning of your post. I must say that given the lowest common denominator that certain arguments on the Syed case have reached (see Reddit, Et al), that it is immensely refreshing to be able to have a discussion with someone who disagrees with me, but who reads, comprehends, acknowledges, and responds to the substance of what is said. I keep an eye out for your replies too.

In response to this, however,

“You seem uncomfortable that the State made claims you disagreed with. Yes, but that's our system. It's the defense counsel's job to rebut.”

Upon re-reading my own comment, I can see how you might have that impression. In truth however, it’s my apprehension and disdain for the intentionally trolling tendencies of certain other Reddit carry-overs on this blog (Seamus Duncan especially) which my tone is aimed toward.

All that to say, I am not uncomfortable with what arguments the state made, but rather I was fervently disagreeing with the assertion that Asia McClain would not have been an alibi witness because the state “did not prove when Syed allegedly killed her; it offered a possibility but readily conceded it was not sure and could have offered others.” It is this assertion which I was uncomfortable with.

Because there is a glaring problem what you said here:

“The State is simply saying this: In our view, there were multiple times during that day where the crime could have been committed. At trial, given our knowledge that Asia would not testify, we chose the earlier one. Had Asia testified, we would have chosen a later one. There's no contradiction there. The State is just explaining its trial strategy.”

In criminal trials discovery is nothing at all like at civil trials. The defense had no idea what the state’s case was going to be until they arrived in court and heard it for the first time. Likewise for the prosecution is in the dark about the defense, except 1 gigantic difference: the prosecution commits to their position ahead of defense because they have to go first. Indeed, state wasted no time at trial in fervently declaring their 2:36 timeline during opening statements. Likewise they had to present all their witnesses also. They did so without knowing whether any alibi witnesses like Asia would testify for the defense, and so had Gutierrez actually done her job (ie upon hearing the state’s timeline that Hae was murdered within 21 min of school lettin out, that that was the crucial time frame), the state would have been screwed, forced to either double down or attempt to walk back their fervent declarations made in opening statements and duration of their presented case.

This is why these cases of attorneys not bothering to contact what turn out to be totally legit alibi witnesses almost invariably lead to vacated convictions. It’s practically black letter law because it’s such a no-brainer that any competent Attorney would seize at the possible chance to thoroughly crush the state’s position after they have gone ahead and committed to it. And why do they invariably always commit to it first? Because in criminal law the prosecution must present and conclude their full case before the defense has to call even a single witness of their own. And there’s no pre-trial depositions of non-expert testimony either.

Posted by: Paul | Jun 11, 2018 7:27:30 PM

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