EvidenceProf Blog

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

Tuesday, February 9, 2016

Closing Argument Preview: The Difficulty the State Faces in Arguing Against Prejudice

Today, we can expect the closing arguments in Adnan Syed's reopened PCR proceeding. Based on the testimony by Asia McClain and multiple lawyers, I think that Adnan has made a very strong showing on the "unreasonable performance" prong of the Strickland/ineffective assistance of counsel test. Accordingly, I expect the State to try to argue that Adnan has not satisfied the prejudice prong. The seeming problem that the State faces is an opinion by Maryland's highest court.

I've discussed In re Parris W., 770 A.2d 202 (Md. 2001) on this blog before. It's the case in which  defense counsel subpoenaed five "alibi" witnesses to appear for the wrong trial date, resulting in their nonappearance. The defendant in that case was charged with assault in the second degree. There are three notable things about the case: (1) the defendant's father did testify as an alibi witness, indicating that his son and he were about 40 minutes away from the site of the assault on the afternoon it happened; (2) one of the alibi witnesses, Diane Carey, who did not appear also claimed to have seen the defendant about 40 minutes away from the site of the assault; and (3) the State wasn't sure when exactly the assault occurred.

In arguing against the prejudice prong, the State claimed that

Here, Parris W. was not prejudiced in this case because he was able to present his alibi through the testimony of his father. Anthony W. testified that on April 27, 1999, he took Parris to school in Temple Hills, Maryland, at around 9:00 a.m. to report back after his expulsion. (H. 15, 24). Because he had not completed the proper paperwork, Parris W. could not report that day, so, Anthony W. testified that he took Parris with him on his route at as a delivery driver, at around 9:25 a.m. (H. 26-28). Anthony W. testified that he took Parris with him to the District of Columbia, then went to a friend's house from around 11:00 a.m. to approximately 1:45 p.m. (H. 28-30). Afterwards, Anthony W. took Parris with him to a friend's house in Greenbelt, Maryland, where he claimed he and his son arrived around between 2:10 to 2:30 p.m., and where they stayed until somewhere between 10:00 p.m. and midnight. (H. 30-31). Anthony W. testified that during that whole time, Parris W. never left his sight. (H. 31). Accordingly, Parris W. was able to present his alibi defense to the court and thus, his claim that he was prejudiced by counsel's performance to the extent that the outcome of the case would have been different must fail.

Further, the corroboration of Parris W.'s alibi would not have been anymore beneficial because the court still could have chosen to credit the assault victim's testimony over the alleged alibi. (H. 50-51)....Moreover, Parris W. has not even made a proper showing of what the other alleged alibi witnesses would have testified to. There was no evidentiary hearing, nor is there anything in the record, by way of affidavit or otherwise, from which this Court could conclude that there would have been corroboration whatsoever....Thus, one can not say that Parris W. was prejudiced by counsel's performance. In re Parris W., Brief of Appellee, 2000 WL 34523328 (Md. 2000).

The Court of Appeals of Maryland easily rejected this argument, finding that

If Ms. Cary had been present to testify that she had observed Appellant forty minutes away from the scene of the crime at 4:30 p.m., her testimony may have discredited Morton's identification of Appellant as his assailant. It is evident from the trial record that Appellant's counsel's performance in failing to subpoena the five corroborating witnesses for the correct trial date was deficient and that, as a result of the deficient  performance, Appellant was prejudiced....

Given the distance between Ms. Cary's home and the place where Morton was assaulted, and given the uncertainty surrounding the time of the assault, Ms. Cary's testimony alone may have been enough to create reasonable doubt in the mind of the hearing judge had she been available to testify.

The State has tried to claim that Adnan cannot prove prejudice due to his attorney's failure to contact Asia McClain because (1) Debbie already contradicted the State's timeline (by saying she saw Hae at 3:00 P.M.); (2) Adnan's father provided a partial alibi (for the night/Mosque time period); and (3) the prosecution at trial just as easily could have claimed that Hae was killed soon before a 3:15 P.M. Best Buy Call as opposed to a 2:36 Best Buy call.

In In re Parris W., however, there was alibi testimony by the defendant's father and an uncertain crime timeline, and the Court of Appeals of Maryland had no problem finding prejudice. Indeed, as I've argued before, an uncertain crime timeline makes it easier to prove prejudice. Why? Adnan has to prove

a “reasonable probability” of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence [the defendant] received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the Government's evidentiary suppression “undermines confidence in the outcome of the trial.” Ware v. State, 702 A.2d 699 (Md. 1997).

Even if the State could just as easily have argued that Hae was killed soon before 3:15 P.M.,* the defense, armed with Asia's alibi, certainly could have claimed that Hae had left the school campus by 2:20ish, meaning that Adnan couldn't be guilty. After all, Becky testified that Hae headed to the door that led to her car in the minutes after school, saying that she had somewhere else she needed to be; and (2) Inez Butler testified that she saw Hae leaving school in a hurry between 2:15 and 2:20 P.M.

Would that have been enough for the jury to harbor reasonable doubt? That's not the question. The question is simply whether our confidence in the jury's verdict is undermined by the fact that the jury was never given the information to make that decision. By way of contrast, Judge Welch now has that information.


*Of course, this claim is doubtful on several levels. One that I haven't mentioned before is The Nisha Call, which everyone acknowledges was a huge part of the State's case at trial. If the Best Buy call was the 3:15 P.M. call, there's simply no way that the State could have sold the jury on (1) Jay getting that call at 3:15 P.M.; (2) Jay driving to the Best Buy; (3) the trunk pop; (4) Adnan and Jay driving to the Park and Ride, where Adnan shifted things around in the car; (5) Adnan and Jay driving to the Forest Park Golf Course; and (6) The Nisha Call at 3:32 P.M.



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Colin, do you agree with Susan's opinon that the defense is now in the position of having to disprove all of the State's hypotheticals about why CG may not have contacted Asia. This would be very discouraging if true. Thanks

Posted by: Louise | Feb 9, 2016 7:22:19 AM

What I find appalling is Urick's misrepresentation of his call with Asia in the earlier post conviction relief hearing. Has this been explored this time around or is it off topic here?

Posted by: Mim | Feb 9, 2016 8:24:54 AM

In the case you pointed above, the time of death was known. I am not sure that the argument applies in this case.

Posted by: S | Feb 9, 2016 9:18:11 AM

I found myself a little annoyed by Sarah K's commentary. She seems oblivious to the fact that adnan need not prove that Asia would have won the case for them, only prove that it was wrong and unconstitutional for CG not to contact. Sarah doesn't have the legal knowledge that the Undisclosed team has. Also, unrelated but I just read that a Texas prosecutor has been disbarred for misconduct. Thanks, Colin.

Posted by: Iheartegrets | Feb 9, 2016 9:29:13 AM

Colin, if the judge rules for a retrial, what might the state base it's decision on to (1) offer an alford plea, (2) retry, or (3) not retry and reopen the case? What is your opinion on which way they'd go?

Posted by: KC | Feb 9, 2016 9:50:03 AM

So Thiru keeps inferring that they don't know the actual time of death now. Is this so when the new trial comes he can change their stance and theories to fit his new story?

Posted by: NavyMom | Feb 9, 2016 10:29:21 AM

Colin, please help! I have been presented with a theory that I was you guys to debunk. Adnan could have asked Hae for a ride after school, to the library, and even though she was in a rush, she could have agreed because it was so close, maybe even on her way out. Adnan could then have killed her right after school, either in the school or library parking lot (assuming there is a semi-secluded place for this to happen, not unlike the Best Buy parking lot, which is also open to other people/cars walking or driving by). This would be "riskier" but by most accounts, killing someone in general is pretty risky so let's just put that increased level of risk aside. Because this happens on the school campus between 2:15 and 2:30, this leaves him enough time to kill her (no less time than the State originally proposed at trial) and then go to the library afterwards around 2:30 where he sees Asia. He could then go to track as usual without raising suspicion for being late. After track, he and Jay go to Leakin Park to dump the body (face down flat to match the lividity). Several days go by and Adnan thinks they could have done a better job of concealing her and after the ice/snow storm clears, he goes back, with or without Jay, to move the body, which accounts for the final body position and place in which she was found. I would love for you to debunk this theory with whatever evidence you have. Thank you!!!

Posted by: LLWS | Feb 9, 2016 2:49:10 PM

Louise: I haven’t heard that opinion. The Griffin case stands for the proposition that such hypotheticals don’t matter. They can’t justify the decision to avoid contacting an alibi witness.

Mim: It wasn’t explored because the State decided against calling him as a witness.

S: The cited case involved an assault, not a murder, and the Court of Appeals of Maryland specifically said that there was “uncertainty surrounding the time of the assault.”

Iheartegrets: The question is whether contacting Asia would have created the reasonable probability of a different outcome at trial, which does not require a showing of “more likely than not.” Our confidence in the jury’s verdict must simply be undermined.

KC: Jay. I can’t see the State taking the case at trial again when everything hinges on Jay’s credibility.

LLWS: Becky saw Adnan and Hae walking in opposite directions at the end of school, with Hae saying she couldn’t give him a ride because she had “something else” to do. That makes the scenario unlikely, but anything is possible.

Posted by: Colin Miller | Feb 9, 2016 6:29:54 PM

LLWS: I think that theory is implausible for many reasons. First, killing someone in the SCHOOL (and by definition library) parking lot while kids are literally come into and going for end of school, sports, etc, would be asinine. No way could have happened. Secondly, the lividity was set on a hard, non organic surface (not in a shallow grave where she wasn't even laying flat). And thirdly, where was her body the whole time he was at track? Weekend At Bernies-ing it in the parking lot?!

Posted by: Carley | Feb 9, 2016 6:32:24 PM

If the tipster turns out to be Jay, is the state still in a position to offer an Alford plea? Or is it game over?

Posted by: KC | Feb 9, 2016 6:40:27 PM

@LLWS track would have to end at 4pm to 4.30pm for this theory to be even possible. If body moved after this time but before 8 to 10 hours later when lividity is fully fixed, a mixed lividity pattern would show on a body because lividity start to fix after 1.5 to 2 hours after death. Anyone can make up a story making anyone involved guilty though. Where's the actual evidence that backs up that story?

Posted by: Sue | Feb 10, 2016 3:19:18 AM

Hi Colin,

If the judge orders a re-trial, but the state offers an Alford plea and chooses not to re-try but offer an Alford plea. Is there a way for Adnan to force the state to re-try the case, given that In Maryland you can only claim compensation for a wrongful conviction if found actually innocent?


Posted by: MT | Feb 10, 2016 4:57:29 AM

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