Thursday, December 11, 2014
Here's my interview with Libby Nelson with vox.com about Adnan Syed and the likelihood of him succeeding on his current claim that he received the ineffective assistance of counsel at trial: "We asked a legal evidence expert if Serial's Adnan Syed has a chance to get out of prison." In this prior post, I already fleshed out my analysis of why I think Adnan has a pretty good chance of succeeding if the Maryland Court of Special Appeals considers his claim that his trial counsel was ineffective for failing to contact potential alibi witness Asia McClain. So, why did I say in the interview that Adnan has very little chance of succeeding on his claim was ineffective for failing to seek a plea deal despite his repeated requests?
As I noted in my prior post:
Pursuant to the Supreme Court's opinion in Strickland v. Washington, a defendant proves an IAC claim by proving (1) that counsel’s performance "fell below an objective standard of reasonableness" as measured by "prevailing professional norms;" and (2) prejudice,i.e., "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
I don't think that there's any question that Adnan could satisfy Strickland's first prong. Adnan, a teenager, was charged with first-degree murder, robbery, and kidnapping. If convicted, he faced the very real possibility that he would be incarcerated for the rest of his life. Adnan has claimed that he repeatedly asked defense counsel to talk to the prosecution about a possible plea deal. The prosecution has come forward and stated that defense counsel never asked them about a plea deal. Assuming that the court believes Adnan when he says that he asked defense counsel to talk to the prosecution about a plea deal, Adnan should be able prove that it was unreasonable for defense counsel not to comply.
The difficulty that Adnan faces is satisfying Strickland's second prong. In order to prove prejudice, Adnan would have to prove two things: (1) the prosecution would have offered Adnan a plea deal; and (2) Adnan would have accepted the plea deal. Let's start with the question of whether the prosecution would have offered Adnan a plea deal. United States v. Heli-Mejia, 2008 WL 4899648 (S.D. Tex. 2008) is fairly typical of how courts treat claims like Adnan's claim of IAC. Here's the courts analysis of the issue:
Heli-Mejia's contention that counsel did not negotiate and secure for him a Plea Agreement when counsel knew or should have known that he would be convicted if he proceeded to trial, the contention was not only conclusory but also failed because Heli-Mejia made no showing that the Government would have entered into plea negotiations, and further, that even had negotiations commenced, there was no showing that a plea agreement could have and would have resulted.
That sums up the problem for Adnan pretty well. Fifteen years after the fact, he's claiming that, if defense counsel asked the prosecution about a plea deal, the prosecution not only would have entered into plea negotiations but also would have offered a plea agreement that Adnan reasonably could have accepted. That's simply too high of a hill for most, if not all, courts to climb.
But let's assume that the court does find that the prosecution would have offered Adnan a plea deal. After all, after Adnan's first trial ended in a mistrial, the jurors were polled, and the results were favorable to the defense. Maybe this unique circumstance would lead the court to find that the prosecution would have offered Adnan a plea deal if defense counsel approached them between trials.
That still leaves the problem that Adnan would have to prove he would have accepted the plea deal. This is where what I just wrote works against Adnan? Why would Adnan accept a plea deal if things seemed to be going so well for him? Additionally, there's another factor that hurts Adnan. Consider this language from Melo v. United States, 825 F.Supp.2d 457 (2011):
Even if Melo could establish that Nooter committed unprofessional errors, he has failed to establish any prejudice resulting from such conduct. Melo must show some "objective evidence other than [his] self-serving assertions to establish that [he] would have pled guilty had he received constitutionally effective assistance of counsel." Crisci v. United States, 108 Fed.Appx. 25, 27–28 (2d. Cir.2004). Here, Melo maintained his innocence throughout the proceedings....Insistence on innocence, although not dispositive, weighs against finding that Melo would have accepted a plea deal. See Cullen, 194 F.3d at 407. Additionally, because there was no concrete plea deal offered, there is no objective evidence of the sentence Melo could have received with a guilty plea. See Osorio v. Conway, 496 F.Supp.2d 285, 303 (S.D.N.Y.2007) ("Objective evidence may include a disparity between the plea offers and the actual sentence, and whether the plea offers were stated in petitioner's presence in open court."). The Court therefore has no objective basis to find that the outcome would have been different had Melo pled guilty.
That's two seemingly fatal blows for Adnan: (1) he has maintained his innocence, which, while not dispositive, weighs against a finding that he would accepted a plea deal; and (2) no plea deal was ever offered to Adnan, which makes it seemingly impossible for the court to order relief. A year after Melo, the United States Supreme Court issued Lafler v. Cooper, 132 S.Ct. 1376 (2012), its most important decision on the relationship between a claim of ineffective assistance of counsel (IAC) and the plea bargaining process. In Lafler, Blaine Lafler
was charged under Michigan law with assault with intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a felony, misdemeanor possession of marijuana, and for being a habitual offender. On two occasions, the prosecution offered to dismiss two of the charges and to recommend a sentence of 51 to 85 months for the other two, in exchange for a guilty plea. In a communication with the court [Lafler] admitted guilt and expressed a willingness to accept the offer. [Lafler], however, later rejected the offer on both occasions, allegedly after his attorney convinced him that the prosecution would be unable to establish his intent to murder [the victim] because she had been shot below the waist. On the first day of trial the prosecution offered a significantly less favorable plea deal, which respondent again rejected. After trial, respondent was convicted on all counts and received a mandatory minimum sentence of 185 to 360 months' imprisonment.
The Lafler Court found that Lafler satisfied (1) Strickland's first prong by giving him patently incorrect legal advice: that the prosecution couldn't prove intent to kill because he shot the victim below the waist; and (2) Strickland's second prong by convincing the Court that he would have accepted the prosecution's plea deal if defense counsel had properly advised him that the prosecution could prove intent to kill.
Having found that Lafler proved IAC, the Supreme Court had to decide what remedy to impose, and it ruled as follows:
The correct remedy in these circumstances, however, is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed....Today's decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case.
Lafler doesn't overtly say anything about Adnan's chances of success. That said, it pretty clearly states that the remedy for a successful IAC claim in connection with plea bargaining is: reoffering the plea agreement. I've seen two types of successful IAC claims in connection with plea bargaining: (1) defense counsel failed to inform the defendant of a plea deal; or (2) defense counsel improperly instructed the defendant to reject a plea deal. As Lafler tells us, the remedy in either case is to have the prosecution reoffer the plea deal.
I've never seen a court grant an IAC claim based on defense counsel's refusal to seek a plea deal. And I think a large part of that is that there's no clear remedy that applies in such a case. Therefore, I think Adnan's claim that defense counsel was ineffective in failing to seek a plea deal will be a bridge too far for the court.