EvidenceProf Blog

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

Monday, March 23, 2015

Some Quick Thoughts on Adnan Syed's Brief of Appellant

Today, Adnan Syed filed his Brief of Appellant to the Court of Special Appeals of Maryland, seeking a new trial based upon the claim that he received the ineffective assistance of counsel (IAC). When I started writing about this case, the only live IAC claim was Adnan's claim that his trial counsel was ineffective based on failing to ask the State about a possible plea bargain despite his repeated requests.  At the time, I gave an interview to vox.com in which I noted that Adnan was almost certain to be unsuccessful on this claim; I then followed up that interview with a blog post in which I went into more detail regarding why I thought this IAC claim would be unsuccessful. Quite simply, the law was not on Adnan's side.

But then, in January, Asia McClain came forward with a new affidavit in which she stated that she stood by her claim that she saw Adnan in the library on January 13, 1999 and that she was dissuaded from testifying at Adnan's PCR hearing by one of the prosecutors at Adnan's initial trial(s). This led to Adnan filing a Supplement to his application for leave to appeal and the resuscitation of Adnan's claim that his trial counsel was ineffective based on her failure to contact Asia McClain as a potential alibi witness. With this claim revived, I now reached the conclusion that Adnan's appeal would be successful. Quite simply, this time, the law was on Adnan's side.

In particular, there was a Court of Appeals of Maryland case, In re Parris W., 770 A.2d 202 (Md. 2001), in which Maryland's highest court found that the constructive failure of an attorney to call alibi witnesses constituted the ineffective assistance of counsel. Moreover, the court in Parris W. cited several cases from across the country, all of which stood for the proposition that failure to contact an alibi witness constituted the ineffective assistance of counsel. Many of these cases are cited in Adnan's appellate brief, including Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), a case involving the same courts that handled Adnan's trial and appeal.

Some further research led me to find 50 cases from around the country in which courts deemed the failure to contact or investigate a potential alibi witness to be unreasonable or potentially unreasonable under circumstances similar to the circumstances in Adnan's case. Conversely, I found no cases in which the opposite conclusion was reached. I am now up to 70 such cases, which are listed below the fold. It will be interesting to see if the State is able to find any cases reaching the opposite conclusion when it files its own brief next month.

1. In re Parris W., 770 A.2d 202 (Md. 2001).

2. Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992) (case involving the same courts handling Adnan’s trial and appeal).

3. Grooms v. Solem, 923 F.2d 88 (8th Cir. 1991).

4. Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988).

5. Tosh v. Lockhart, 879 F.2d 412 (8th Cir. 1989).

6. Johns v. Perini, 462 F.2d 1308 (6th Cir. 1972).

7. Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994).

8. Walker v. State, 756 S.E.2d 144 (S.C. 2014).

9. Toney v, Miller, 564 F.Supp.2d 577 (E.D.La. 2008).

10.  United States v. Johnson, 970 F.2d 907 (D.C. Cir. 1992).

11. Lopez v. Miller, 915 F.Supp.2d 373 (E.D.N.Y. 2014).

12. Washington v. Smith, 48 F.Supp.2d 1149 (E.D.Wis. 1999).

13. Butler v. McEwan, 2014 WL 2566069 (C.D.Cal. 2014).

14. Francis v. People, 2012 WL 3183823 (D.V.I. 2012).

15. Matthews v. Abramajtys, 319 F.3d 780 (6th Cir. 2003).

16. Matthews v. Abramajtys, 92 F.Supp.2d 615 (E.D.Mich. 2000).

17. United States v. Williams, 2012 WL 38229 (D.Minn. 2012).

18. State v. Glover, 396 S.E.2d 198 (W.Va. 1990).

19. Ballard v. Hurt, 2014 WL 2404302 (W.Va. 2014).

20. State v. Glover, 355 S.E.2d 631 (W.Va. 1987).

21. State v. Sanford, 948 P.2d 1135 (Kan.App. 1997).

22. Montalvo v. Mantello, 233 F.Supp.2d 554 (S.D.N.Y. 2002).

23. Bigelow v. Williams, 367 F.3d 562 (6th Cir. 2004).

24. Lawrence v. Armontrout, 900 F.2d 127 (8th Cir. 1990).

25. Bell v. Georgia, 554 F.2d 1360 (5th Cir. 1977).

26. Avery v. Prelesnik, 524 F.Supp.2d 903 (W.D.Mich. 2007).

27. Stewart v. Wolfenarger, 468 F.3d 338 (6th Cir. 2006).

28. Ramonez v. Berghuis, 490 F.3d 482 (6th Cir. 2007).

29. Gaines v. Commissioner of Correction, 51 A.3d 948 (Conn. 2012).

30. Ellerby v. United States, 187 F.3d 257 (2nd Cir. 1998).

31. Rolan v. Vaughn, 445 F.3d 671 (3rd Cir. 2006).

32. Holmes v. McKune, 59 Fed.Appx. 239 (10th Cir. 2003).

33. Code v. Montgomery, 799 F.2d 1481 (11th Cir. 1986).

34. Brown v. Myers, 137 F.3d 1154 (9th Cir. 1988).

35. Moran v. Vose, 816 F.2d 35 (1st Cir. 1987).

36. Teat v. State, 589 So.2d 815 (Ala.Crim. 1991).

37. Thomas v. State, 639 S.W.2d 353 (Ark. 1982).

38. People v. Shaw, 674 P.2d 759 (Cal. 1984).

39. State v. Allen, 1990 WL 1104263 (Del.Supr. 1990).

40. Jones v. United States, 918 A.2d 389 (D.C. 2007).

41. Cohens v. State, 775 So.2d 336 (Fla.App. 2nd 2000).

42. Tenorio v. State, 583 S.E.2d 269 (Ga.App. 2003).

43. People v. Krankel, 447 N.E.2d 1379 (Ill.App. 4th 1983).

44. Williams v. State, 508 N.E.2d 1264 (Ind. 1987).

45. State v. Cooks, 726 N.W.2d 633 (Wis.App. 2006).

46. Jones v. State, 133 S.W.3d 307 (Tex.App. 2004).

47. Commonwealth v. Bronson, 321 A.2d 645 (Penn. 1974).

48. Lichau v. Baldwin, 39 P.3d 851 (Or. 2002).

49. People v. Bussey, 6 A.D.3d 621 (N.Y.App.2nd 2004).

50. State v. Porter, 80 A.3d 732 (N.J. 2013).

51. State v. Love, 865 P.2d 322 (Nev. 1993).

52. State v. McElveen, 544 P.2d 820 (Mont. 1975).

53. Mullen v. State, 638 S.W.2d 304 (Mo.App. 1982).

54. Johns v. State, 926 So.2d 188 (Miss. 2006).

55. People v. Akram, 2010 WL 3418913 (Mich.App. 2010).

56. Calene v. State, 846 P.2d 679 (Wyo. 19993).

57. Bigelow v. Haviland, 576 F.3d 284 (6th Cir. 2009).

58. Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987).

59. Raygoza v. Hulick, 474 F.3d 958 (7th Cir. 2007).

60. Garcia v. Portuondo, 459 F.Supp.2d 267 (S.D.N.Y. 2006).

61. Miller v. Singetary, 958 F.Supp. 572 (M.D.Fla. 1997).

62. Stubbs v. Thomas, 590 F.Supp. 94 (S.D.N.Y. 1984).

63. Poindexter v. Booker, 301 Fed.Appx. 522 (6th Cir. 2008).

64. Shumway v. State, 293 P.3d 772 (Kan.App. 2013).

65. Black v. State, 2004 WL 2914986 (Alaska App. 2004).

66. State v. Tapia, 725 P.2d 1096 (Ariz. 1986).

67. People v. Herrera, 534 P.2d 1199 (Colo. 1975).

68. Cunningham v. State, 788 P.2d 243 (Idaho App. 1990). 

69. Holland v. Commonwealth, 679 S.W.2d 832 (Ky.App. 1984).

70. Lagassee v. State, 655 A.2d 328 (Me. 1995).


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This sounds encouraging for Adnan's Appeal.

But, if this Appeal is successful, will he receive another trial? Or are there other remedies that might be on the table.

Thanks in advance.

Posted by: Badger | Mar 23, 2015 2:07:09 PM

You claim Asia's second affidavit was crucial to this appeal, but there doesn't seem to be any mention of it in the brief. Why?

Posted by: Seamus Duncan | Mar 23, 2015 2:26:23 PM

I think the State's most likely claim will be that she wasn't an alibi witness or to stick to the validity of the opinion below, namely that the decision not to call her was strategic.

Posted by: PowerofYes | Mar 23, 2015 2:49:39 PM

Badger: If Adnan is successful, his conviction is thrown out. The State would then have to decide to reprosecute or offer a plea deal.

Seamus: Asia's 2nd affidavit was already discussed in Adnan's Supplement and will be considered by the court:


Posted by: Colin Miller | Mar 23, 2015 3:43:24 PM

Hi Colin,
Having read the brief and related media, it seems that the defense team are attempting to link the failure to investigate alibi witness and failure to follow client and attempt a plea deal, thereby raising the significance of the plea deal failure. (For example one argument of the stat may be that there would be no willingness of Adnan to accept a deal, but defence can argue that his knowledge of "failure" of the alibi witness to amount to anything may have modified his position).

Do you think that the combined arguments for IAC strengthen the "plea deal" portion of the argument?

In your research have you encountered any appeals with a similar combination of claims?



Posted by: brisvegas1 | Mar 23, 2015 5:35:44 PM

Hi Prof.: I'm an attorney but don't do criminal work usually. If I were writing this appeal as a civil lawyer I would definitely have mentioned (a) Asia's recent affidavit and (b) the apparently perjurious (in my opinion) testimony by Urick that Asia told him that she was being harangued or threatened by Adnan's family, and that is why she wrote the original letters. I realize that the recent affidavit is before the court in the supplemental brief, but I still think it is curious that it and the Urick testimony were omitted from this brief.

Posted by: Michele | Mar 23, 2015 8:55:35 PM

brisvegas1: Yes, it's a smart move by defense counsel, which I think strengthens the Asia claim, but I don't think it is enough to make the plea bargaining issue a winning one.

Michele: It's still debatable whether the court can consider the new allegations, which is probably why it made sense to leave that in the Supplement and not use it in this filing.

Posted by: Colin Miller | Mar 24, 2015 3:27:30 AM

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