EvidenceProf Blog

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

Wednesday, May 6, 2015

Bearing Witness?: Anticipating 2 Arguments by the State in its Brief in the Adnan Syed Appeal

I was hoping to be able to do a post today about the State's brief in the Adnan Syed case, but the State has asked for another extension to the filing deadline. While we're all waiting for the State's brief, I thought that I would anticipate two arguments that the State could make in its brief.

You might recall that Asia McClain did not testify at Adnan's PCR proceeding. According to the defense, the reason that Asia didn't testify was a phone conversation that she had with Kevin Urick, one of the prosecutors at Adnan's trials in 1999 and 2000. According to Asia's new affidavit,

[Urick] told me there was no merit to any claims that Syed did not get a fair trial. Urick discussed the evidence of the case in a manner that seemed designed to get me to think Syed was guilty and that I should not bother participating in the case, by telling what I knew about January 13, 1999. Urick convinced me into believing that I should not participate in any ongoing proceedings. Based on my conversation with Kevin Urick, the comments made by him and what he conveyed to me during that conversation, I determined that I wished to have no further involvement with the Syed defense team, at that time.

So, let's assume that the State makes the following arguments in its brief: (1) Urick's motives were impeccable, and he had no intention to transform a willing witness into an unwilling witness; and (2) the conversation with Urick was not the direct or exclusive factor in Asia's failure to testify. Would either of these arguments hold water? The clear answer seems to be "no."

Let's start by looking at the first argument. Here's an excerpt from the opinion of the United States Court of Appeals for the District of Columbia in United States v. Smith, 478 F.2d 976 (D.C. Cir. 1973): 

Even if the prosecutor's motives were impeccable, however, the implication of what he said was calculated to transform Twitty from a willing witness to one who would refuse to testify, and that in fact was the result. We therefore conclude that the prosecutor's remarks were prejudicial....The treatment of the witness Twitty requires the reversal of Smith's conviction.

This first clause in the above quote ("Even if the prosecutor's motives were impeccable...") has been pretty popular. It has been cited by the Supreme Court of New Jersey, the Court of Appeals of Iowa, the Supreme Court of Wisconsin, the Court of Appeals of Michigan, and other courts to similar effect. I'm unaware of any court rejecting this language. And, again, recall that Adnan is not seeking to use the conversation between Asia and Urick to reverse his conviction; he's simply using it to ask for a remand so that Asia can testify.

Let's now look at the second argument. Here's an excerpt from the opinion of the United States District Court for the Eastern District of California in Berg v. Morris, 483 F.Supp. 179 (1980):

Respondent contends that the trial judge's conduct was not necessarily the cause of Fryar's change of testimony. It is difficult for this Court to imagine any other plausible explanation. Such hypothesizing is unnecessary, however, since petitioner need not establish direct or exclusive causation. In Webb, the Supreme Court merely found that the record ‚Äústrongly suggests that the judge's comments were the cause...."...; See also Bray v. Peyton, supra at 501. It would be an understatement to claim in the present case that the facts "strongly suggest" judicial coercion.

The Webb case cited by the court is Webb v. Texas, the controlling Supreme Court case on this topic, and many other courts have similarly interpreted its holding, including the Fourth Circuit (the federal judicial circuit covering Maryland) in Bray v. Peyton, which was also cited by the court. And, again, all that Adnan wants is a remand.

When the State does file its brief, it will be very interesting to see what cases, if any, the State cites to claim that the allegations by Asia are insufficient for the court to even remand the case to (1) determine whether Asia was dissuaded from testifying; and, possibly, (2) allow her to testify.



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In the rough and tumble of a murder trial, in a big city plagued with killings, is it SOP for the prosecutor to waive off an alibi witness? In this case - or any - is that just a tactic that defense lawyers should watch for, and counter?
Trying to put this into context. No fan of Mr. U., but not want to pile on with this episode if it's not warranted.

Posted by: Nan Connolly | May 6, 2015 3:20:21 PM

confused over here, what does this brief mean? will there still be hearings in june?
thanks prof, admire what you do and how you do it. thank you!

Posted by: whoarethoseguys? | May 6, 2015 5:44:58 PM

Or they could just ignore it entirely? It seems that the court allowed this additional briefing based on Asia's allegations, so why would the prosecutor not address it? Will they bring Urick to the hearing? Am I missing a nuance about practice in this court?

Posted by: pointlesschaff | May 6, 2015 9:02:23 PM

Good call. Ahahahaha

Posted by: Dave | May 6, 2015 10:36:48 PM

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