EvidenceProf Blog

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

Friday, September 25, 2015

Additional Thoughts on the State's Response to Adnan's Motion to Reopen

In yesterday's post, I did an initial analysis of the State's CONSOLIDATED RESPONSE IN OPPOSITION TO PETITIONER’S MOTION AND SUPPLEMENT TO REOPEN POST-CONVICTION PROCEEDINGS in the Adnan Syed case. In this post, I am going to focus on the portion of the State's RESPONSE that has me more convinced than ever that the court will grant Adnan's motion to reopen.

Let's start by reviewing the standard that will be used to determine whether to reopen Adnan's postconviction proceeding. Adnan needs to prove that it is "in the interests of justice" to reopen the postconviction proceeding under Section 7-104 of the Maryland Code of Criminal Procedure, which states that

The court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.

In yesterday's post, I already discussed how Adnan's attorney cited to several on point cases in which a petitioner satisfied this standard while the State cited no cases to the contrary.

The second part of this analysis is that Adnan needs to establish that the court could reverse its prior ruling and grant him a new trial based upon the testimony of his alibi witness (and perhaps other evidence). To establish this fact, Adnan's attorney cited to the opinion of the Court of Appeals of Maryland in In re Parris W., 770 A.2d 202 (Md. 2001), and the four cases cited with approval in that opinion: (1) Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992) ("strikingly similar" case involving the same courts handling Adnan’s trial and appeal); (2) Grooms v. Solem, 923 F.2d 88 (8th Cir. 1991); (3) Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988); (4) Tosh v. Lockhart, 879 F.2d 412 (8th Cir. 1989).

Together, these cases hold 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." Specifically, the court in Griffin concluded that trial counsel cannot strategically decide against calling an alibi witness at trial when he has not contacted that witness to assess her credibility and importance. 

As I noted yesterday, the State cited no countervailing cases in its RESPONSE. Perhaps even more significantly, the State didn't even address these cases or their holdings in the body of its RESPONSE. Instead, this analysis was relegated to a single footnote, footnote 3:

It should be noted that Syed’s continued reliance in his motion to reopen on cases that held that trial counsel failed to investigate alibi witnesses adequately is misplaced. Motion to Reopen at 5, n.2. Unlike those cases, there was ample evidence here of proactive pursuit of an alibi defense, and there were serious risks to expanding that defense to include an unpredictable and potentially contradictory witness. Put simply, Gutierrez’s team assiduously developed 80 alibi witnesses that would conform to the account provided by Syed to police. To demand that a skilled and seasoned trial attorney like Christina Gutierrez abandon — or risk compromising — one alibi strategy to chase after another is inconsistent with the constitutional guarantee of effective counsel. 

In response, Syed relies on the fact that Gutierrez did not contact McClain personally. Motion to Reopen at 3, 16. Speaking to McClain, however, is not the only way for Gutierrez to have assessed the value and veracity of the potential alibi. In fact, the evidence before this Court makes clear that other methods of inspecting the potential alibi existed. After all, the law clerk’s notes upon which Syed relied to show that the defense was aware of the McClain letters in the first place also reveal that, on the same date the McClain correspondence was discussed, the defense team obtained — presumably from Syed — his email account information and were made aware that the public library may have had surveillance cameras. See Defense Post-Conviction Exhibit 5. Syed himself indicated that he was "fairly certain" that use of his email account would have been the principal reason for this presence at the Woodlawn Library between the end of school and the start of track practice. (T. 10/25/12 at 30-32). Thus, by simply entering the login and password scribbled on the law clerk’s note, Gutierrez’s team could have swiftly evaluated the potential alibi by determining whether Syed’s email account had activity during the relevant timeframe. And where a seasoned defense attorney like Gutierrez generates a list of 80 potential alibi witnesses, it is reasonable to conclude that some inspection of this 81st alibi witness was performed

Let's look at the arguments in each paragraph of the footnote:

Paragraph 1: Unlike the Attorneys in the Other Cases, Gutierrez Did Due Diligence

First, according to the State, unlike in the cases cited by Adnan's attorney, "there was ample evidence here of proactive pursuit of an alibi defense." The State has a real problem here, and it comes in the form of Montgomery v. Petersen, one of the cases cited in Adnan's motion to reopen. I did a whole post about the case here.

In Petersen, defense counsel not only proactively pursued an alibi defense; he called twelve alibi witnesses at trial, including many who covered at least some of the period of time when the subject crime was being committed. Nonetheless, the court still found that counsel was ineffective based on failing to contact a thirteenth alibi witness, a Sears sales clerk, even though the attorney did not have the clerk's name or address. Consistent with the legal standard above, the Seventh Circuit concluded that defense counsel could not write off this clerk as an alibi witness without first contacting the clerk:

Nor can we say that defense counsel's conclusory statement that he did not believe his client was an adequate basis for ignoring such an important lead. Indeed, if counsel had taken the few steps necessary to identify and interview the Sears clerk, he may well have formed a more favorable view of his client's veracity.

Second, according to the State, "there were serious risks to expanding that defense to include an unpredictable and potentially contradictory witness." One problem with this argument was that the alibi witness in question could not have been contradictory to any of the witnesses listed in Adnan's alibi notice. The witnesses listed on the notice were (1) track teammates; and (2) members of Adnan's Mosque. Track practice started at 3:30 or 4:00 P.M. and prayers at the Mosque started later in the evening. 

We know from both the notes by Adnan's attorney and the notes by her clerk that Adnan communicated that this additional alibi witness had seen him before track practice. Therefore, contacting this additional alibi witnesses in no way would have caused trial counsel to "abandon — or risk compromising — one alibi strategy to chase after another is inconsistent with the constitutional guarantee of effective counsel." Instead, this additional alibi witness would have covered a completely different time frame from the time frames covered by the other alibi witness: the time frame when the murder was allegedly being committed.

What about the claim that the alibi witness was unpredictable? As Petersen and the aforementioned cases make clear, this might be a reason to refrain from calling an alibi witness but not a reason to refrain from contacting the alibi witness.

That leaves the claim that the defense team developed "alibi witnesses that would conform to the account provided by Syed to police." This is an allusion to the State's previous argument that Adnan told the police that he remained on the Woodlawn campus between the end of school and the start of track practice. It's also the one claim that I hope Judge Welch looks at under a microscope.

In his initial opinion, Judge Welch credited this argument by the State. It turns out, however, that the State created this claim out of cloth. Simply put, there is no documentary support for the State's claim that Adnan told the police he remained on campus until the start of track practice, as I noted in this post, under the heading "Adnan Said He Stayed at School Until Track Practice Began."* Of course, all of this assumes that there is even a meaningful distinction between the school campus and the Woodlawn Public Library.**

At one point, I thought it was possible that Judge Welch relied upon Adnan's alibi notice to conclude that Adnan claimed that he remained on the school campus until track practice. The State itself has admitted, however, that it only used the alibi notice to show the depth of the defense investigation, which coheres with Maryland precedent indicating that such notices are irrelevant for determining the defendant's version of events. This takes me to the second paragraph of the State's footnote.

Paragraph 2: Counsel Could Have Investigated the Alibi & There's Reason to Believe She Did

In the second paragraph, the State asserts that "where a seasoned defense attorney like Gutierrez generates a list of 80 potential alibi witnesses, it is reasonable to conclude that some inspection of this 81st alibi witness was performed." I also addressed this point in my prior post, and I will address it again here because it is right in my wheelhouse. Like its federal counterpart, Maryland Rule of Evidence 5-803(b)(7) provides an exception to the rule against hearsay

Unless the circumstances indicate a lack of trustworthiness, [for] evidence that a diligent search disclosed that a matter is not included in the memoranda, reports, records, or data compilations kept in accordance with subsection (b)(6), when offered to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind about which a memorandum, report, record, or data compilation was regularly made and preserved.

The alibi notice lists 80 people. Of these 80 people, only one -- Adnan's father -- was called as an alibi witness. Therefore, Gutierrez, for whatever reason, made the decision not to call the other 79 witnesses as alibi witnesses. Pursuant to Rule 5-803(b)(7), the absence of a person's name on this alibi notice would thus be strong evidence that the person was not investigated or pursued, even if ultimately rejected. In other words, black letter evidence law stands for the exact opposite proposition than the one advanced by the State. Thus, if the alibi notice is to be used at all, it should be used to buttress Adnan's case.

That said, I don't know how much faith we should put in the alibi notice. Adnan's track teammate Will is listed in the alibi notice, and, as I've noted before, he has said that he was never contacted by the defense despite the fact that he had the potential to tear apart the State's entire case. I hope that Judge Welch allows Adnan's attorney to call Will at a reopened PCR hearing because I think that the fact that the defense failed to contact him despite his exculpatory potential is strong circumstantial evidence of the failure to contact other alibi witnesses.

The other argument advanced in the second paragraph is, of course, complete conjecture. The State contends that the defense team could have investigated the library alibi by logging into Adnan's e-mail account to determine whether he had accessed his account on the afternoon of January 13th. There is, however, no evidence that such an effort was undertaken and no proof that such access could have been confirmed or dispelled by logging into a Hotmail account in 1999 months after the fact. Besides, does anyone really think an attorney should completely write off a potential alibi witness based solely upon accessing the defendant's e-mail account?

Conclusion

Judges like precedent. It allows them to support their conclusions and insulates their opinions from reversal. Adnan's attorney has cited on point precedent on both the "interests of justice" standard and the ineffective assistance of counsel standard. It would thus be easy for Judge Welch to reopen the postconviction review proceeding under Campbell or Curry and grant Adnan relief by citing to cases like Parris W., Griffin, and PetersenConversely, the State has cited no on point precedent on either standard and has relegated its discussion of the heart of Adnan's motion to reopen to a single footnote that cites no precedent and makes a key argument that runs directly contrary to the rules of evidence.

___________________

*Even if Adnan gave a different account to police, it was still ineffective assistance to fail to pursue a contradictory alibi witness put forward by the defendant.

**In an interesting twist of fate, the State's RESPONSE was written by a graduate of Woodlawn High School. 

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/09/in-yesterdays-post-i-did-an-initial-analysis-of-theconsolidated-response-in-opposition-to-petitioners-motion-and-suppleme.html

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Comments

Does Adnan get to file a reply for this type of motion, in order to point out the deficiencies that you noted?

Posted by: Rich | Sep 25, 2015 7:37:29 AM

Rich: Good question. I don't know. We're in uncharted territory here.

Posted by: Colin | Sep 25, 2015 7:50:43 AM

thanks Colin for resurrecting my flickering hope!!!! You are awesome 👏👏👏👏

Posted by: Stephanie | Sep 25, 2015 9:27:35 AM

Unchartered territory? Thats interesting. Could you elaborate. You mean this is a first and sont know if a response can be made or not?

Posted by: anon | Sep 25, 2015 9:27:50 AM

I was concerned too if defense can point out the 'misstatements’ in the state’s reply. Because the judge believed the state’s statements last time & denied. Re: saying that library was ‘off campus’. Now, wondering if the judge will again believe the state that ‘they didn’t use the cell phone records in question of the fax in evidence in trial- and they did. What a shame that state can blatantly lie & judge will believe them.

Posted by: Sunny | Sep 25, 2015 10:20:10 AM

Am I correct that this appeal does not include the matter of who received the tipster payment? If not, are Adnan' s attorneys able to subpoena that information at this point?

Posted by: rkt 10 | Sep 25, 2015 10:27:57 AM

The email account issue was discussed in the Serialpodcast subreddit. The discussion established that in 1999, Hotmail likely deleted accounts after 3 months of inactivity, and deleted the content after 45 days (https://www.reddit.com/r/serialpodcast/comments/2nc404/adnans_hotmail_account/cmcmhuv).

Posted by: SchoolBorg | Sep 25, 2015 10:35:49 AM

Stephanie: No problem.

anon: There's never been a prior Maryland case in which the Court of Special Appeals has remanded so a motion to reopen can be filed.

Sunny: I'm really hoping for a thorough review of the record.

rkt 10: There's an MPIA request for this information out right now. A subpoena could follow.

SchoolBorg: Thanks.

Posted by: Colin | Sep 25, 2015 10:36:16 AM

Thanks for breaking this down...you're awesome.

Posted by: Fran | Sep 25, 2015 10:40:46 AM

I also have an MPIA request out for those files. We will see if you are being completely open about this.

Posted by: jlpsquared | Sep 25, 2015 11:09:20 AM

The State's argument about the email account is another one that actually buttresses Adnan's claims, rather than hurts them. Let's say Hotmail did not delete the account so that Gutierrez's clerks could access Adnan's accounts. There would only be two outcomes: 1) there was evidence that Adnan was sending an email between 2:15 and 3:00 that would show he was in the library at that time; or 2) there was no such evidence. If there was email evidence showing that he was using email during that time, then perhaps Gutierrez would make the strategic decision not to contact Asia because she had better evidence that Adnan was in the library. Obviously, that didn't happen or it would have been presented at trial. If there was not any evidence of email activity, then Asia's testimony becomes even more important because it places Adnan in the library during that crucial time. Same result if Hotmail did delete its accounts and/or they were no longer accessible. In that case, Asia's testimony is the only evidence that could place Adnan in the library between 2:15 and 3:00.

Posted by: Ann | Sep 25, 2015 11:14:34 AM

Where did Adnan tell his first lawyers he was between 2:15-3:30?

Posted by: Seamus_Duncan | Sep 25, 2015 11:15:31 AM

Hypothetically, if Asia is allowed to testify at the IAC hearing and she testifies, will it be the judge that will determine the truth of her statement?

Posted by: S | Sep 25, 2015 12:05:21 PM

Fran: No problem.

jipsquared: We actually didn’t get the crime scene photos from our MPIA request. They were turned over in response to MSNBC’s MPIA request. What we have is what MSNBC got.

Ann: Good points.

Seamus: No idea. What I do know is that both of them strongly believe in Adnan’s innocence.

S: Yes, the judge would assess her credibility.

Posted by: Colin | Sep 25, 2015 12:33:50 PM

There's nothing in Gutierrez's files that indicates what his initial alibi was, prior to 7/13?

Posted by: Seamus_Duncan | Sep 25, 2015 1:02:29 PM

Seamus: There's the undated note in Gutierrez's files about Asia and track practice. That note could have been from made any time starting from when Gutierrez was hired in April.

Posted by: Colin | Sep 25, 2015 1:18:08 PM

On the fax cover sheet topic, setting aside the waiver argument, I'm reading the State's point this way -

The fax cover sheet says:
How to read "Subscriber Activity" Reports
...
Outgoing calls only are reliable for **location status.** Any incoming calls will NOT be considered reliable information for location.

The AT&T "Subscriber Activity" report contains the column "Location" which the State is saying is the "location status" referred to in the fax sheet disclaimer. The location column lists "DC 4196 Washington2-B." So, the disclaimer on incoming locations specifically refers to the reliability of the information in the "Location" column, not the reliability of the cell site locations (which are blacked out) or incoming cell tower pings, in general.

Here is the quote from the State's brief:
"The legend also explains that the information contained in the 'location' column on a Subscriber Activity report will not be reliable for incoming calls."

The State then clarifies that, as a factual matter, the State's certified cell records which were introduced at trial (State's Exhibit 31), did not have the column "Location" nor any other codes referred to in the fax cover sheet disclaimer. Given the records relied upon at trial did not have any of the codes or "location status" data which were the subject of the disclaimer, how is the fax cover sheet disclaimer relevant?

Here is the quote from the State's brief:
"They had no blacked out columns; they had none of the codes discussed in the boilerplate legend; they lacked a column titled 'location.' See State’s Exhibit 31."

Posted by: Nine9fifty50 | Sep 25, 2015 1:29:00 PM

So Colin is the Judge looking at the response etc now or what is the process ? Do you have any idea of a time line at all ? Fantastic work #Free Adnan !!

Posted by: Robyn McC | Sep 25, 2015 1:44:39 PM

Nine9fifty50: Who knows. The State acknowledges that the cover letter accompanies all "Subscriber Activity" reports but claims: (1) these reports were never admitted at trial; and (2) Exhibit 31 was something other than a "Subscriber Activity" report. The report that is marked as Exhibit 31 is title "Subscriber Activity" report and was accompanied by the cover letter.

Robyn McC: The judge will now consider the filing by both parties and decide whether to hold a hearing on the motion to reopen.

Posted by: Colin | Sep 25, 2015 1:45:26 PM

How would logging into his email prove where he was? I can argue that he and Hae were together somewhere when he logged into hotmail. So this is an amazing claim: "Thus, by simply entering the login and password scribbled on the law clerk’s note, Gutierrez’s team could have swiftly evaluated the potential alibi by determining whether Syed’s email account had activity during the relevant timeframe."

Even in 1999 that would have been dumb.

Posted by: Boo | Sep 25, 2015 4:47:18 PM

Nine9fifty50 -- what is substantive difference in the distinction the State is attempting to make?

Posted by: Dragga | Sep 25, 2015 5:16:27 PM

With regard to information which has come out since the filing of this petition, can further petitions be made? I'm thinking specifically about the 'taps' which indicate that Jay's testimony was interferred with by the police, and the Crimestoppers tip.

Posted by: Emily | Sep 25, 2015 7:41:50 PM

I dunno bud looks like the state has you here. Good luck though, lol.

Posted by: the duke of new york | Sep 25, 2015 9:57:55 PM

Boo: Right. I can’t imagine making a decision not to contact an alibi witness based upon such a (hypothetical) e-mail search.

Dragga: I think the State is confused about what was actually introduced at trial. It seems to me like they made several mistakes in their brief.

Emily: Yes. All of these Brady claims can be raised after they are solidified.

the duke of new york: Fair enough. We’ll see.

Posted by: Colin | Sep 26, 2015 3:47:31 AM

Colin,

Asia's recent affidavit uses specific language to say only she was never contacted by an attorney connected to the defense. She could well have been contacted by a defense investigator who then communicated with Gutierrez. In fact, this seems likely, given the diligence of the investigator in talking to many possible witnesses.

The defense now has the burden to show that Asia wasn't properly investigated. Isn't it plausible that she was contacted by the investigator? Or can you rule that out?

NOTE: This is the 25th and final comment that will post on this entry. Steven B.: In the new affidavit, she says that nobody from the legal team representing Syed ever contacted her:

http://www.theblaze.com/stories/2015/01/20/exclusive-potential-alibi-witness-for-convicted-murderer-in-serial-breaks-silence-with-new-affidavit/

Posted by: Steven B. | Sep 26, 2015 6:17:51 AM

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