EvidenceProf Blog

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

Saturday, April 25, 2015

Adnan Syed's Postconviction Hearing & Why the Court Could & Should Remand to Allow Asia McClain to Testify

Yesterday, somebody released the transcript from Adnan Syed's Postconviction Review Hearing. Here is the heart of prosecutor Kathleen Murphy's argument from that hearing about why the court should deny Adnan's claim that he received the ineffective assistance of counsel based upon his trial attorney's failure to contact potential alibi witness Asia McClain:

Screen Shot 2015-04-25 at 6.15.04 AM

Simply put, this argument has me more convinced than ever that the Court of Special Appeals of Maryland can and should remand to the Circuit Court to allow Asia McClain to testify.


The case cited by Murphy is Veney v. Warden, 271 A.2d 133 (Md. 1970). In Veney, Samuel Veney, was convicted of murder in the first degree and was sentenced to death by the administration of lethal gas. Veney thereafter brought a petition for postconviction relief, claiming, inter alia, "[t]hat the petitioner's counsel failed to subpoena a defense witness whom petitioner wished to have testify on his behalf." 

Here's the relevant portion of the court's opinion denying Veney's petition:

An eighth contention raised by the petitioner is that his counsel failed to summon a witness whom the petitioner desired to testify in his behalf. The Clerk of the Circuit Court for Frederick County stated upon inquiry by the Court at the hearing on this petition that the witness in question, a Mr. Marvin, was not summoned nor was a summons requested. The Court concludes, however, that this contention must fail on its face since a failure to call witnesses will only constitute a ground for post conviction relief where the petitioner produces the alleged witnesses in support of his claim that the denial was prejudicial to his right to a fair trial. White v. Warden, 1 Md. App. 670, 232 A.2d 821 (1967). In the instant case the petitioner has not produced the witness to substantiate the claim that such witness was essential to a fair trial.

And there you have it. Maryland's highest court found that a claim that trial counsel was ineffective for failing to call a witness at trial failed on its face because the defendant did not call that witness to testify at his PCR hearing. This is the exact same argument that Murphy made at Adnan's PCR hearing, and it explains why Adnan's PCR petition was similarly rejected. Anything else that the Circuit Court said was basically window dressing; Asia's testimony was the sine qua non of a successful claim of ineffective assistance of counsel.

Now, we have Asia McClain's new affidavit. In it, she claims that she was dissuaded from testifying based upon a phone conversation with Kevin Urick, one of the prosecutors at Adnan's original trial(s). As a result, the Court of Special Appeals of Maryland has to decide whether to remand to the Circuit Court to allow Asia to testify.

In making this decision, the Court of Special Appeals has to decide whether a remand is in the interests of justice. To remand, the court basically has to find (1) the possibility of prosecutorial misconduct based upon Urick's statements to Asia and/or the court at Adnan's PCR hearing; and (2) the possibility of a different outcome after Asia testifies.

I've already discussed (1) in detail in this post. The key cases on this point are Campbell v. State, 376 A.2d 866 (Md.App. 1977) and Curry v. State, 458 A.2d 474 (Md.App. 1983). Both of them stand for the proposition that even pretty benign behavior by the prosecutor is sufficient to satisfy the "interests of justice" standard, and both of them actually involved new trials being granted, not simply remand for additional factfinding.

As for (2), Murphy's argument and Veney lay this out pretty clearly. Without Asia's testimony, Adnan basically had no chance of winning on his ineffective assistance claim. On the other hand, if Asia testifies consistently with seeing Adnan at the library on January 13, 1999, well...I have 70 cases supporting the proposition that such testimony should lead to the court granting Adnan a new trial. Simply put, Asia's testimony could make all the difference in the world, which is why the court could and should remand to the Circuit Court to allow that testimony.



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Will you please comment on why you believe the defense didn't have an obligation to subpoena Asia dring the two years between her conversation with Urick and the PCR hearing? Thanks.

Posted by: ScoutFinch2 | Apr 25, 2015 5:04:00 AM

Additional question, when did Adnan's attorney become aware Asia had called Urick? Thanks again.

Posted by: ScoutFinch2 | Apr 25, 2015 5:14:48 AM

ScoutFinch2: I assume the argument is that the defense knew Asia wouldn't be cooperative and that Asia was being uncooperative based upon what Urick told her. I don't know when defense counsel became aware that Asia called Urick. I assume that this will all come out during the June hearing or on remand.

Posted by: Colin Miller | Apr 25, 2015 5:52:25 AM

Thank you for your response.

Posted by: ScoutFinch2 | Apr 25, 2015 6:18:39 AM

I've asked this elsewhere but I'm curious: what about the two people who Asia says were with him and Adnan, that is her boyfriend and another guy. We know who they are. What do they say??

Posted by: NewInfo | Apr 25, 2015 7:12:15 AM

I'm confused about this and maybe it's because I have something wrong, but if I do, I hope it can be explained to me:

1) Petitioner's PI locates Asia and visits her home
2) fiancé says go away (implying PI and Adia never spoke)
3) Asia call Urick
4) Asia claims Urick dissuaded her from testifying

Well who asked her to testify? The petitioner's PI? Did she have contact with the attorney prior to or after the Urick call? I"m assuming one or both of those is true.

If so, how is Brown then choosing not to subpoena her not considered their "strategy", and at this point why would they get a do over on that? Because Asia now claims Urick dissuaded her? If that was the story all along, why wouldn't they have brought that up in the initial filing of the brief?

Is there precedent for the prosecutor to offer advice sought out by someone who was never technically part of the trial, about an appeal? She's not claiming he threatened her, or told her false information (just his opinion of the case), so... I guess I'm just asking why this do over is a possibility or why the case you site above applies.

Posted by: Orange theory | Apr 25, 2015 7:14:13 AM

It seems odd that Brown and Rabia were uable to bring Asia to the table before the hearing, as I'm sure Brown knew the importance of producing her as a witness.

And speaking of Urick— A former trial attorney posting on reddit writes:

"if Adnan gets any sort of relief, it will be because of Urick's testimony in the PCR hearing. Without Urick's testimony on the plea negotiation issue, Adnan would have no case. If Urick had walked into court and said that CG had asked and that he had told her, "no deals".. game over. '

Posted by: Badger | Apr 25, 2015 7:55:54 AM

I'm having a few difficulties with the hearing. First why does Adnan say he gave Christina Gutierrez the letters 'immediately' and on the "next" visit? She wasn't his lawyer at that point and he said he hadn't even met her yet.

Secondly, why does he remember Asia and her boyfriends coming over at the same time, yet Asia states that she was alone? Her boyfriend came over afterward and got jealous about who she was talking to. Isn't it suspect when the two versions don't corroborate each other?

Posted by: SitB | Apr 25, 2015 12:17:51 PM

Newinfo: They were interview by Sarah for Serial, right? And they had no memory. One didn’t even know whether Asia was a person or a book.

Orange theory: Take a look at the cases I cited. They don’t involve prosecutors overtly threatening prospective witnesses or lying to the court. Instead, they involve prosecutors being a bit misleading but honest in speaking to witnesses and addressing the court. And those cases involved new trials being granted. I don’t know exactly what happened between Urick and Asia, but it’s easy to imagine Urick telling Asia something like, “The cell tower pings proved that he was in Leakin Park at the same time a witness said he was burying Hae’s body.” That would easily be enough for a remand.

Badger: That’s true of the IAC claim about asking for a plea deal. If Urick lied and said Gutierrez asked about a plea deal, Adnan wouldn’t have an IAC claim on thus issue.

SitB: This seems somewhat understandable given that Adnan was testifying more than a dozen years later. Look, for example, at Jay’s Intercept interview, and you’ll see that some of his statements simply can’t be true. Unless you think Asia is completely making up the library meeting, I don’t know that minor inconsistencies in their memories are that big of a deal. But we’ll see what happens if and when Asia testifies.

Posted by: Colin Miller | Apr 25, 2015 5:53:08 PM

Definitely precedent then for this hearing to go either way. All the more reason to watch this case develop further. Thanks for sharing your insight.

Posted by: Jordan | Apr 27, 2015 6:17:30 AM

Couple questions - not directly on point - didn't the judge in the PCR really make a huge mistake to allow Murphy to "cross" Ulrick before he had been quetioned by Adnan's lawyer? Lead to a lot of problems in the actual questioning by Adnan's lawyer. Also when I read the closing arguments in the actual case, it seem prettly clear that CG was not making a bit of sense, was incoherent even, and it seems that it must have been obvious to the Judge and all the lawyers present. Didn't they have an obligation to do something - shouldn't the judge have called her to the bar and made some attempt to determine if she was out of her mind?

Posted by: Erik | Apr 30, 2015 12:21:04 PM

Wow, you were right back in April! Thanks for this.

Posted by: Cynthia | May 18, 2015 10:28:33 AM

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