The Serial Podcast: Ineffective Assistance of Counsel in the Aggregate vs. Single Issue IAC

It's a sign of the popularity of the Serial Podcast that I got multiple e-mails on Christmas Eve about a podcast about that podcast. This particular podcast was one done by the UVA Innocence Project regarding the final episode of the Serial Podcast. Both of the people who e-mailed me directed me to 24:21 of the UVA podcast. In this portion of the podcast, Deidre Enright, the director of the UVA Innocence Project, said the following about Adnan Syed's trial counsel:

"But, most of our lawyers aren't...they're kind of asleep at the wheel, and she wasn't that. And so it's good that there's physical evidence because we could probably pick away at many things she did wrong but I don't think she'd be ineffective under Strickland."

I noted in my last post that it would be my final post on the Serial Podcast unless and until (1) the full trial transcripts are released and/or (2) something happens with Adnan's appeal. The UVA podcast relates to Adnan's appeal because they're the ones petitioning for DNA testing. That said, I still don't have the full trial transcripts, and the folks at UVA do. Given that, I'm not going to attempt to second guess the conclusion of Deidre Enright. She's clearly a brilliant legal mind, and she clearly knows what she's talking about. What I do want to do in this post, however, is lay out the two different ways that a defendant can prove the ineffective assistance of counsel.

In the UVA podcast, one of the students lays out the two pronged test for proving IAC that is derived from Strickland v. Washington and that I've laid out before on this blog. That test requires the defendant to prove

(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."

As I noted in the introduction, there are two ways for a defendant to prove that he received the ineffective assistance of counsel. The first is by proving ineffective assistance of counsel in the aggregate. As the Court of Special Appeals of Maryland noted in Cirincione v. State, 705 A.2d 96, 112-13 (Md.App. 1998):

Even when no single aspect of the representation falls below the minimum standards required under the Sixth Amendment, the cumulative effect of counsel's entire performance may still result in a denial of effective assistance. Apparently, this cumulative effect may be applied to either prong of the Strickland test. That is, numerous non-deficient errors may cumulatively amount to a deficiency, Bowers v. State, 320 Md. 416, 436, 578 A.2d 734, 744 (1990), or numerous non-prejudicial deficiencies may cumulatively cause prejudice. Harris v. Wood, 64 F.3d 1432, 1438-39 (9th Cir.1995). As ever, the touchstone is whether, in view of all the circumstances, our confidence in the result has been undermined by counsel's failings.

Assume that defense counsel cross-examines a few key witnesses for the prosecution for only a few minutes, delivers a two minute closing argument, and fails to object to a couple of pieces of tangential hearsay. In isolation, each of these errors/deficiencies might not constitute IAC, but their cumulative effect might add up to an IAC claim. Or not. In Grandison v. State, 670 A.2d 398, 423 (Md. 1995), the defendant claimed IAC based upon the cumulative effect of five errors by defense counsel, and the Court of Appeals of Maryland responded as follows:

In Gilliam v. State, 331 Md. 651, 629 A.2d 685 (1993), cert. denied, 510 U.S. 1077, 114 S.Ct. 891, 127 L.Ed.2d 84 (1994), in rejecting a "cumulative effect" argument in the context of an ineffective assistance of counsel claim, we stated that "[t]his is not a case where the cumulative effect of numerous interrelated errors in aggregate amount to inadequate representation. This is more a case of the mathematical law that twenty times nothing is still nothing." Gilliam, 331 Md. at 686, 629 A.2d at 703. In the case sub judice, we hold that five times nothing is still nothing. 

The second way that a defendant can prove he received the ineffective assistance of counsel is by proving a single important error/omission by defense counsel. As the Supreme Court of New York, Bronx County, noted in People v. Brown, 

in order for a single error to constitute ineffective assistance of counsel in an otherwise competent representation, the argument which defense counsel allegedly failed to make must be on a "clear-cut and completely dispositive" issue....  

Where the argument at issue depends upon a complex analysis, it will not be considered so "clear-cut."

Or, as the Fifth Circuit noted in Nero v. Blackburn, 597 F.2d 991, 994 (5th Cir. 1979), "sometimes a single error is so substantial that it alone causes the attorney's assistance to fall below the Sixth Amendment standard."

In other words, defense counsel can otherwise be completely competent over the course of the defendant's trial and yet make one vital error/omission that renders her assistance ineffective. As noted in Brown, however, if the defendant is relying on a single error, that error needs to be something clear-cut as opposed to something that requires a lot of leg work to take the defendant from guilt to possible innocence.

One error that can be clear-cut is the failure to call an unbiased alibi witness. For instance, in People v. Claumextle, 626 N.E.2d 741 (Ill.App. 2nd Dist. 1994), the defendant was charged with aggravated battery and called an alibi witness who shared an apartment with him. At trial, however, the prosecutor greatly undermined the credibility of this alibi witness by eliciting on cross-examination the fact that the alibi witness disliked the victim because the alibi witness's "husband had supposedly fathered a child by [the victim] while [the alibi witness] was living in Mexico." 

After he was convicted, the defendant claimed that he received the ineffective assistance of counsel because his lawyer failed to ask for a continuance so that he could contact and call a second, unbiased alibi witness. The Appellate Court of Illinois agreed with the defendant, concluding that

We believe that the failure to seek a continuance in order to locate [the second alibi witness] renders the result of the proceeding unreliable under the standard enunciated in Strickland....

The State argues, though, that a claim of ineffective assistance of counsel must be evaluated in light of the totality of the evidence....The State contends that under such an analysis defense counsel's isolated error of failing to seek a continuance to secure [the alibi witness]'s testimony at trial cannot constitute ineffective assistance. We do not agree. Whether a single error is so egregious that it gives rise to a claim of ineffective assistance of counsel depends upon the facts of the particular case. In this case, the only evidence in support of the defendant's alibi defense came from [the first alibi witness], who shared an apartment with the defendant and who also admitted that she did not like [the victim]. [The potential second alibi witness] had no such obvious reasons to testify in favor of the defendant. Her testimony in support of the defendant was thus so important to the defendant's alibi defense that his counsel's error in not seeking a continuance to locate her undermines confidence in the outcome of the proceeding. We therefore reverse and remand for a new trial.

Now, again, I don't have access to the full trial transcripts, so I can't say with any degree of certainty whether Adnan's trial counsel was effective or ineffective. In fact, at this point, I would take what was said by Deidre Enright over anything I have to say. But I do think that cases such as Claumextle establish that my argument that Adnan's counsel possibly should have asked for a continuance so that she could contact/call Asia McClain after the prosecution claimed the "I killed Hae" call was the 2:36 call is not entirely frivolous.

-CM