The Serial Podcast, Final Post: Why I'm Now Convinced That Adnan Will Get a New Trial

I've posted 30 entries Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee, on January 13, 1999. These posts are collected in my Legal Companion to the Serial Podcast. This will be my final post about the case until the court opinion granting him a new trial. Yes, that's right. I'm now convinced that Adnan will be released from prison. Maybe not today, maybe not tomorrow, maybe not soon, but (possibly) for the rest of his life.

All of my posts about Adnan's chances of getting a new trial have been filled with caveats: I'm not an expert in Maryland law. I don't have Adnan's whole case file. I think that Adnan might get a new trial, but only if something unexpected happens like a law clerk remembering a conversation with Adnan from fifteen years ago. Now, however, with complete confidence, I can say that I think Adnan will get a new trial as long as two things that easily can happen do happen: (1) Asia McClain is willing and able to testify in a way consistent with seeing Adnan in the library on January 13, 1999; and (2) the court believes that Adnan's trial counsel, Cristina Gutierrez, did not try to contact Asia.

It's possible that Adnan succeeds on his current Petition for Post-Conviction Relief. It's also possible that Adnan gets a new trial based upon DNA testing. But let's assume that Adnan is unsuccessful in appealing his convictions in the Maryland state court system. Once Adnan has exhausted his state remedies, he can file a federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Adnan would file this petition with the United States District Court for the District of Maryland. If that court denies Adnan's petition, he could appeal to the United States Court of Appeals for the Fourth Circuit (the federal judicial circuit covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina).

A federal court must grant a petition for a writ of habeas corpus if it finds that the state adjudication of the defendant's claim "'was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' within the meaning of 28 U.S.C. § 2254(d)(1)." Williams v. Taylor, 529 U.S. 362, 367 (2000). As the Supreme Court held in Taylor, it became clearly established Federal law in 1984 that a defendant is entitled to a new trial if he satisfies the two-pronged test in Strickland v. Washington, 466 U.S. 668 (1984), for proving ineffective assistance of counsel: 

(1) 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." 

My contention in this post is that it is also clearly established Federal law 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." Grooms v. Solem,  923 F.2d 88, 90 (8th Cir. 1991). Numerous federal circuit courts have cited or adopted this language from Grooms. The First Circuit (covering Maine, Massachusetts, New Hampshire, and Rhode Island) cited it in Shuman v. Spencer, 636 F.3d 24, 31-32 (1st Cir. 2011). The Fifth Circuit (covering Louisiana, Mississippi, and Texas) adopted it in Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) ("[W]hen alibi witnesses are involved, it is unreasonable for counsel not to try to contact the witnesses and 'ascertain whether their testimony would aid the defense.' Grooms v. Solem, 923 F.2d 88, 90 (8th Cir.1991)." The Tenth Circuit (covering Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) adopted it in Foster v. Ward, 182 F.3d 1177, 1198 (10th Cir. 1999). And the D.C. Circuit adopted this language in United States v. Johnson, 970 F.2d 907, 911 (D.C. Cir. 1992).

So, even if the Fourth Circuit had never previously adopted this language from Grooms, Adnan would have a pretty decent argument that it is clearly established Federal law. Luckily for Adnan, he doesn't have to make this argument because the Fourth Circuit also adopted this language in Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992).

In Griffin, Donald Griffin was charged with robbery and using a handgun during a crime of violence. The robbery occurred at a Rite-Aid in Baltimore at 3:45 P.M. on July 24, 1983. Griffin's initial attorney was disbarred based on "misappropriating client funds, commingling funds, failing to keep records, and neglecting a legal matter." On October 25, 1984, Griffin's new attorney, Charles Howard, met Griffin for the first time at a pretrial hearing. Howard expected Griffin to plead guilty, but Griffin refused and instead told Howard about an alibi witness named Rodney Staples. With Griffin's trial scheduled to start in the Circuit Court for Baltimore City on November 19, 1984, Howard did not attempt to contact Staples in part because he still expected Griffin to plead guilty. Griffin, however, never pled guilty, and Howard never contacted Staples. At the end of trial, Griffin was convicted.

Griffin thereafter filed a direct appeal, which was rejected by the Court of Special Appeals of Maryland. Griffin later filed a petition for postconviction relief with the Circuit Court for Baltimore City, claiming that he received the ineffective assistance of counsel because Howard failed to contact Staples (and also failed to contact/call other alibi witnesses). The Circuit Court denied the petition.

Under Strickland's first prong, the Circuit Court hypothesized possible strategic reasons that Howard could have decided not to contact Staples. Under Strickland's second prong, the court held that, even if Howard acted unreasonably, Griffin couldn't "demonstrate affirmatively that, but for trial counsel's unprofessional errors, the result would have been different." The Court of Special Appeals of Maryland thereafter denied Howard leave to appeal the Circuit Court's opinion.

Howard then filed a petition for a writ of habeas corpus with the United States District Court for the District of Maryland. The district court denied the petition without a hearing. The United States Court of Appeals for the Fourth Circuit, however, reversed, granting Griffin a new trial while dismantling the reasoning of the Circuit Court for Baltimore City under both of Strickland's prongs.

Under the first prong, the Fourth Circuit started by broadly finding the following: 

The "deficient performance" prong is easily met here. An attorney's failure to present available exculpatory evidence is ordinarily deficient, "unless some cogent tactical or other consideration justified it." Washington v. Murray, 952 F.2d 1472, 1476 (4th Cir.1991). Accord, Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir.1990), appeal after remand 961 F.2d 113 (8th Cir.1992) (failure to interview alibi witnesses was deficient performance under first Strickland factor); Harris v. Reed, 894 F.2d 871, 878 (7th Cir.1990) (failure to call witnesses to contradict eyewitness identification of defendant was ineffective assistance); Grooms v. Solem, 923 F.2d 88, 90 (8th Cir.1991) (“it is unreasonable not to make some effort to contact [alibi witnesses] to ascertain whether their testimony would aid the defense”).

As we will discuss below, the “cogent tactical considerations” that the state court bestowed on David for failing to present Griffin's alibi witnesses are exercises in retrospective sophistry. From the attorney's perspective at the time of trial, no reasonable excuse for failing to notify the state of Griffin's alibi and to secure the attendance of alibi witnesses appears or is even suggested in the evidentiary record. Indeed, David's statements at the bench conference are unambiguous admissions of unpardonable neglect. We hold that counsel's performance was deficient. (emphases added).

In other words, based on clearly established Federal law, including Grooms v. Solem, Griffin easily satisfied Strickland's first prong by proving that Howard failed to make some effort to contact alibi witnesses identified by Griffin. Here's the Fourth Circuit's specific evisceration of the Circuit Court's conclusions with regard to the failure to contact Staples:

Rodney Staples testified [at the postconviction hearing] that he arrived at Griffin's house between 3:00 and 3:15 p.m. on the day of the robbery. He stated that soon thereafter he and Griffin went to the Williams' house to watch sports. Inasmuch as this testimony clearly "covers" the period in question, the state court took a different tack. Staples had been picked out of a photo array by one of the security guards and identified as one of the robbers. Therefore, concluded the state court, it may have been sound trial strategy not to call Staples, i.e. if he were an accomplice, and the state could show that when he was on the stand, it could have hurt Griffin's case.

This reasoning is thoroughly disingenuous. David did not even talk to Staples, let alone make some strategic decision not to call him. Strickland and its progeny certainly teach indulgence of the on-the-spot decisions of defense attorneys. On the other hand, courts should not conjure up tactical decisions an attorney could have made, but plainly did not. The illogic of this "approach" is pellucidly depicted by this case, where the attorney's incompetent performance deprived him of the opportunity to even make a tactical decision about putting Staples on the stand. A court should "evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Tolerance of tactical miscalculations is one thing; fabrication of tactical excuses is quite another. Kimmelman v. Morrison, 477 U.S. 365, 386-387, 106 S.Ct. 2574, 2588-2589, 91 L.Ed.2d 305 (1986) (hindsight cannot be used to supply a reasonable reason for decision of counsel); Harris, 894 F.2d at 878 (same). (emphases added).

In other words, the Circuit Court's decision to hypothesize possible strategic reasons for why Howard didn't CALL Staples when he never attempted to CONTACT him was contrary to the Federal law clearly established in cases like Grooms v. Solem. 

This takes us to the Fourth Circuit's analysis of Strickland's second prong. According to the Fourth Circuit, the Circuit Court for Baltimore City applied

an overly-strict legal standard for the second Strickland prong. The court stated that Griffin had to "demonstrate affirmatively that, but for trial counsel's unprofessional errors, the result would have been different." Strickland is not so demanding. If a petitioner establishes a reasonable probability that the result would have been different, prejudice is established. Moreover, a "reasonable probability" is simply "a probability sufficient to undermine confidence in the outcome."...

Our confidence in the outcome is very much undermined. Eyewitness identification evidence, uncorroborated by a fingerprint, gun, confession, or coconspirator testimony, is a thin thread to shackle a man for forty years. Moreover, it is precisely the sort of evidence that an alibi defense refutes best. Lawrence, 900 F.2d at 130; cf. Montgomery v. Petersen, 846 F.2d 407, 415-416 (7th Cir.1988) (where trial was "swearing match" between biased witnesses, counsel's failure to call unbiased alibi witness was prejudicial); Harris, 894 F.2d at 879 (failure to call two witnesses who would have identified someone else as perpetrator prejudicial where prosecution relied on single eyewitness identification). This excerpt from the prosecutor's closing argument, to which we referred earlier, demonstrates the narrow scope of the state's case and the prejudice that resulted to Griffin from his inability to introduce alibi evidence (emphasis added):

The entire case hinges on the credibility of the witnesses. Who do you believe? Do you believe...the security officers, who were trained as security officers in identification, who have positively identified Donald Gary Griffin as the individual responsible for shooting them on July 24th, 1983 or do you believe Donald Gary Griffin, who makes the self-serving statement, I was at home at the time that the alleged incident took place, I had been out all night, I did not return home until seven o'clock that morning, I was in my pajamas at 3:30 in the afternoon when friends of mine, none of which you heard from, come in and they went to a friend's house?

So, let's summarize what happened in Griffin:

1. Griffin was convicted in the Circuit Court for Baltimore City.

2. His direct appeal to the Court of Special Appeals of Maryland failed.

3. His postconviction petition claiming ineffective assistance of counsel based on failing to contact alibi witnesses was rejected because the Circuit Court hypothesized possible strategic reasons for why his attorney didn't contact an alibi witness who directly contradicted the State's timeline.

4. The Court of Special Appeals of Maryland did not grant him leave to appeal.

5. The the United States District Court for the District of Maryland rejected his habeas petition.

6. The Fourth Circuit granted his habeas petition and granted him a new trial because

a. The Circuit Court improperly hypothesized strategic reasons for his attorney not CALLING an alibi witness when that attorney never even attempted to CONTACT that alibi witness.

b. The was no physical evidence against Griffin, and the alibi witness directly contradicted the State's timeline regarding when the crime occurred.

Now, let's turn to Adnan's case:

1. Adnan was convicted in the Circuit Court for Baltimore City.

2. His direct appeal to the Court of Special Appeals of Maryland failed.

3. His postconviction petition claiming ineffective assistance of counsel based on failing to contact alibi witnesses was rejected because the Circuit Court hypothesized possible strategic reasons for why his attorney didn't contact an alibi witness who directly contradicted the State's timeline.

4. The Court of Special Appeals of Maryland did not grant him leave to appeal his claim that his attorney was ineffective based on not contacting an alibi witness who directly contradicted the State's timeline.

It's the same case. Okay, not exactly the same case. In Griffin, the Fourth Circuit knew that Howard didn't contact Staples, and it was pretty sure it knew why he didn't contact him. Adnan's case isn't quite as strong as that. Then again, it presumably would have been much easier for Gutierrez to contact Asia than it would have been for Howard to contact Staples because Asia's phone number was on the letters she wrote to Adnan. Also, Howard met Griffin less than a month before trial because Griffin's prior attorney was disbarred. He didn't have that much time to prepare. In Adnan's case, Gutierrez had several months to prepare before Adnan's first trial and then more than a month to prepare again after his first trial (when the State's timeline and the importance of Asia became obvious). And, in Adnan's case, it was Gutierrez herself who was disbarred after a record number of clients claimed that she didn't do the work she was supposed to do.

Finally, in Griffin, the Circuit Court at least flagged a plausible hypothetical reason for Howard not contacting Staples: the prosecution could have claimed he was an accomplice. In Adnan's case, the Circuit's Court's primary hypothetical reason -- that Gutierrez concluded without even talking to Asia that she was offering to lie -- seems a lot weaker. 

Is Adnan's case stronger or weaker than Griffin's case? I don't know, but I do know that the Fourth Circuit said that Griffin "easily met" Strickland's first prong. Therefore, you can think Adnan's case is considerably weaker and still think he meets Strickland's first prong. Moreover, it's not really the exact facts that are important. In Griffin, the Fourth Circuit adopted the holding from Grooms v. Solem 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." If we think Gutierrez made no effort to contact Asia after Adnan identified her (twice), Adnan satisfies Strickland's first prong. And there's no two ways about it. Griffin is now binding precedent for both the United States District Court for the District of Maryland and Fourth Circuit. This is THE case that these courts will primarily use in Adnan's case.

That's good news for Adnan because the court in Griffin found that Strickland's second prong was satisfied despite pretty decent evidence of Griffin's guilt. Two security guards from the Rite-Aid identified Griffin as one of the robbers. In Adnan's case, all the State had was Jay, who had shifting stories and a plea deal. But the cases are similar in the broad way described by the Fourth Circuit: There was no physical evidence in either case, meaning that both cases hinged on credibility. In Griffin, the Fourth Circuit implicitly concluded that Staples could be every bit as credible as the security guards. The question in Adnan's case is thus whether Asia could be as credible as Jay. It's not too hard to see that question being answered in the affirmative.

So, what do I think Adnan's legal team can and will do?

1. See whether the Court of Special Appeals of Maryland grants Adnan leave to appeal on the issue of whether Gutierrez was ineffective in not asking about a plea deal.

2. Move to reopen his postconviction proceeding on the issue of whether Gutierrez was ineffective in failing to contact/call Asia so that he can either get Asia's testimony on the record or have a court ruling refusing to allow her to testify. This testimony should be able to establish that Gutierrez never tried to contact Asia (Gutierrez had her phone number, and Asia said she was never contacted by an attorney) and that Asia probably saw Adnan on 1/13/99 (it's what she said back in 1999/2000; she still remembers school being cancelled the next two days).

3. See what happens with the UVA Innocence Project's motion for DNA testing.

And then, if none of the above leads to a new trial:

4. File a petition for a writ of habeas corpus wth the United States District Court for the District of Maryland, which should grant it and order a new trial based upon Griffin.

5. If that court for some reason denies Adnan's petition, appeal to the Fourth Circuit, which should grant it and order a new trial based on Griffin.

[Update: Mark Falkoff flags a possible statute of limitations issue in the comments below. As you can see from my comment in response, I think that there shouldn't be a statute of limitations issue, but that is based about my assumption about why Asia wasn't brought up on direct review. So, a third thing that needs to be true for Adnan to get a new trial is that there's no statute of limitations issue, and I lack the information to be able to affirmatively answer that question beyond my assumption.

On a more positive note, I'll add that I realized that the Court of Appeals of Maryland (Maryland's highest court) cited both Grooms v. Solem and Griffin in In re Parris W., a case in which it found that a defendant received the ineffective assistance of counsel in connection with alibi witnesses. Indeed, the court noted that "[t]his case is strikingly similar to that of Griffin...." The only material difference between Adnan's case and these cases is that there was witness testimony/proffers by the alibi witnesses in the other cases. In contrast, Asia didn't testify at Adnan's PCR hearing, and the prosecutor possibly misconstrued what Asia told him. Therefore, I'm feeling better about Adnan's chances of having his PCR proceeding reopened and being granted a new trial based upon Asia's willingness to testify.].

[Update #2: Following up on my first update, I thought I would add some thoughts about Adnan's chance of success at the federal level in the event the court finds that there is a statute of limitations issue. In this case, in addition to proving that the state adjudication of his ineffective assistance of counsel claim "'was contrary to, or involved an unreasonable application of, clearly established Federal law," he would also have to prove "actual innocence." This would be a difficult standard for Adnan to satisfy, but not as difficult as the phrase "actual innocence" implies.

"Actual innocence" means that Adnan would have to demonstrate using "'new reliable evidence'" that it is "'more likely than not...[that] no reasonable juror would find him guilty beyond a reasonable doubt-or to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.'" Lopez v. Miller, 915 F.Supp.2d 373, 383 (E.D.N.Y. 2013). Also,

it is important to note that in considering the reliability of evidence for actual innocence purposes, the court "is not bound by the rules of admissibility that would govern at trial."...Instead, the court must determine the reliability of all the new evidence Lopez has submitted, both admissible and inadmissible, by considering it "both on its own merits and, where appropriate, in light of the pre-existing evidence in the record."

So, examples of "new reliable evidence" would include (1) Asia's testimony; (2) the fax that AT&T sent to the Baltimore Police Department indicating that cell tower pings from incoming calls, like the Leakin Park pings, "will NOT be considered reliable information for location;" and (3) the interview with the key witness for the prosecution, in which he admitted to some important lies at trial and also said, contrary to his trial testimony, that he asked to borrow Adnan's car and that Adnan did not mention killing Hae when loaning him the car.

In the deciding whether the "actual innocence" standard has been met, the "'federal court [will] assess how reasonable jurors would react to the overall, newly supplemented record,' which may...'include consideration of the credibility of the witnesses presented at trial.'" I actually think that Adnan has a decent chance of success under this "actual innocence" standard, given that some significant new evidence has been uncovered and given how the credibility issue seems to shake out. For an example of a court granting habeas relief based on "actual innocence" and ineffective assistance of counsel due to not contacting an alibi witnesses, you can consider the aforementioned Lopez v. Miller.

And if you don't think that Adnan can satisfy the "actual innocence" standard, keep in mind that Adnan doesn't have to prove that he is actually innocent of murdering Hae. Adnan was convicted of first-degree murder under the theories/charges of kidnapping and false imprisonment by fraud. This means that the prosecution had to prove beyond a reasonable doubt that Adnan lied to Hae to get her to drive him to a location where he intended to harm her and ended up killing her. Given new evidence such as the interview, I could see how a federal court could conclude that no reasonable juror could find kidnapping/false imprisonment by fraud beyond a reasonable doubt.

Overall, then, I don't have enough information to answer the statute of limitations questions. If there's no statute of limitations issue, I think Adnan definitely gets a new trial. If there is a statute of limitations issue, I still think Adnan has a solid chance at a new trial, but the legal prognosis becomes murkier.

-CM