EvidenceProf Blog

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

Thursday, February 4, 2016

Thoughts on the 1st Day of Adnan's Reopened PCR

Yesterday was the first day of the reopened PCR proceeding in the Adnan Syed case. I wasn't up in Baltimore, but I got the gist of what happened over social media. As a result, I recorded some audio for last night's special minisode of Undisclosed. Unfortunately, I recorded my segment during a tornado warning, so it seems like there were some resulting glitches. So, here are my thoughts a bit more fleshed out.

The State's Claim About the Asia/Library Alibi Conflicting With What Adnan Told Police

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As I noted yesterday, precedent from across the country indicates that it is unreasonable for an attorney to fail to contact a prospective alibi witness without first having someone on her team contact the witness to determine her reliability and viability. The State is apparently trying to claim that lack of contact was justifiable based upon the fact that the Asia/library alibi conflicts with the story that Adnan told police: that he remained at school until track practice. 

This argument, however, is neither new nor accurate. In its Brief of Appellee (page 21), the State argued as follows:

Adnan Cops

The problem is that these arguments aren't supported by the record. Pages 5-14 in the January 31st transcript contain unrelated testimony by Officer Adcock. Pages 25-39 do contain testimony by Detective O'Shea, but he never testifies that Adnan told him he remained at school until track practice began. Here's the most relevant portion of his Q&A (pages 25-26):

Adnan Cops 2

This testimony is consistent with the relevant portion of Detective O'Shea's police report:

On 01/25/99 the assigned went to Adnan Syed's residence and I was informed by a woman that Adnan was in school. I received a phone call from Adnan later that day. Adnan said he was in class with Hae Lee on 01/13/99 from 1250 to 1415 hours. Adnan went to track practice after school and he did not see Hae Lee leave. Adnan said school was closed due to bad weather on 01/14 and 01/15.

Therefore, as far as I can tell, there is no documentary evidence supporting the proposition that Adnan told the police that he remained at school until the start of track practice.

Furthermore, even if he did, there are two responses. First, Krista submitted an Affidavit (Exhibit 2) indicating that a Woodlawn student saying that he was "at the high school" could have meant that he was at the physical school campus or at the adjacent library. Also, when asked yesterday by Adnan's attorney about whether the library was considered part of the school's campus, Asia apparently responded, "Oh yeah!"

Second, even if Adnan initially told the police a different story, that wouldn't obviate the need for defense counsel to contact Asia McClain. For an example, consider this post, in which I discuss a case in which the defendant initially told the police that he was at an arcade during a robbery/murder and was later reminded by a friend that he was actually helping someone move at that time.

The State's Claim About Adnan's E-mail Address & Password Being in the Defense Files

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The Deputy Attorney General is clearly trying to make the argument that he has uncovered some type of smoking gun. In reality, these notes have been out there for years. About six to be specific. In Adnan's initial 2010 Petition for Postconviction Relief, these notes were the very first exhibit. They were the notes taken by one of Gutierrez's law clerks when he visited Adnan in prison on July 13, 1999.

The question isn't whether Gutierrez's team had his e-mail address and password. The initial question is whether anyone checked the e-mail account, and the secondary question is whether checking the account could have caused Gutierrez to write off Asia McClain without contacting her. 

Obviously, we don't know the answer to the initial question. There's certainly nothing in the defense files indicating that such a search was done. We do, however, know the answer to the second question. Adnan's story is that he was checking his e-mail when he started talking to Asia. As such, it would be completely unsurprising that the defense team found nothing useful in Adnan's e-mail. What exactly could the defense have found that would have precluded the possibility that Adnan saw Asia in the library on January 13th? I can't think of anything other than an e-mail somewhere in Adnan's account that told a different story. But that makes the e-mail no different than any hypothetical source of information in this case.

The State's Claim About Gutierrez's Preparation of an Alibi Defense

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The Deputy Attorney General ostensibly used this task list to establish that Gutierre vigorously prepared an alibi defense. Well, first, we already know that Gutierrez presented an alibi defense from this alibi notice. The question is how vigorously Gutierrez prepared that defense.

There are three things listed next to the alibi defense box. The third references the track alibi. We now know that Gutierrez's investigation of this track alibi consisted of a law student creating a memo from a partial list of track teammates listed in the yearbook and Gutierrez sending a subpoena for the most important track teammate to the wrong location based upon an error by that student. 

The second references the Mosque alibi, and Rabia has said that the Mosque witnesses listed on the alibi notice came from Adnan's family, with many if not most of these people never being contacted by the defense team. 

The first references students who saw Adnan after school. You do the math. 


The State successfully moved to sequester Rabia from the courtroom because it might call her as a witness, despite the fact that Rabia already testified at the initial PCR proceeding. Then, the State spent most of the morning successfully objecting to testimony on the ground that it covered territory already covered at the initial PCR proceeding:

Screen Shot 2016-02-04 at 6.47.57 AM

So, which is it? Rabia was initially listed on the defense witness list, but she was removed before the start of testimony. I was asked to write an argument about sequestration. I don't know whether it will be presented because the goodwill of the judge has been key to this case being reopened and reconsidered, but here is the argument:

Rule 5-615 Sequestration Argument

Maryland Rule of Evidence 5-615 states in relevant part that

Except as provided in sections (b) and (c) of this Rule, upon the request of a party made before testimony begins, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses.

In Tharp v. State, 763 A.2d 151 (Md. 2009), Todd Tharp’s co-defendant in a murder case was tried separately. At the co-defendant’s trial, Tharp’s attorney was initially on the defense witness but was later removed. Despite the fact that Tharp’s attorney was removed from the witness list, the judge ordered him removed from the courtroom with any factual findings or proffer by the State.

On appeal, the Court of Appeals of Maryland disagreed with this decision, concluding that “If Tharp’s attorney effectively was removed from the witness list, he became a member of the public and findings would have to be made, [FN14] as in the Addy case,[1] before he could be banned from the courtroom.” Id. at 164.” In the accompanying footnote, the Court of Appeals noted the importance of such a requirement:

Excluding even just some of the public is considered to be a closure of the courtroom and may affect a defendant's right to a public trial. See, e.g., Watters v. State, 328 Md. 38, 42, 612 A.2d 1288, 1290 (1992), cert. denied, 507 U.S. 1024, 113 S.Ct. 1832, 123 L.Ed.2d 460 (1993) (finding that a defendant's Sixth Amendment right to a public trial had been violated when the defendant's family members and possibly some press had been excluded from the courtroom while permitting in the courtroom prospective jurors, witnesses, and courtroom personnel); Walker v. State, 121 Md.App. 364, 373, 709 A. 2d 177, 180-81 (1998) (clearing the court only of the defendant's family members while allowing other members of the public to remain and finding that such an exclusion without proper findings violated the defendant's Sixth Amendment right to a public trial), cert. denied, 351 Md. 5, 715 A.2d 964 (1998).

According to the Court of Appeals, the reason for requiring a proffer by the State and findings by the court is “[t]o ensure that one party is not given an inordinate amount of power over the other party in the sequestration of witnesses and to ensure that a defendant is provided with a public trial….” Pursuant to this point, it should be noted that, this morning, the State had several sustained objections to testimony about Gutierrez’s declining performance in the late 1990s on the ground that this was already covered at the first PCR proceeding. Rabia was already called at the first PCR proceeding and asked everything about her involvement.

Finally, Justin could move to designate Rabia as “a person whose presence is shown by a party to be essential to the presentation of the party's cause, such as an expert necessary to advise and assist counsel” under Rule 5-615(b)(4), which would preclude her sequestration.

[1] The Addy case is Addy v. Texas, 849 S.W.2d 425 (Tex.App.1993).




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Thanks Colin for explaining the legal processes and relevant case law. Fascinating reading in its own right, as well as fleshing out how Adnan Syed was treated.

When does the judge rule in the post conviction hearing? At the end of the hearing, or some time later after deliberation? Is the judgement delivered in person or by a written document?

Many thanks

Posted by: Anne | Feb 4, 2016 4:12:53 AM

Colin, just a word of support for you & the team - I'm eternally thankful for the work y'all are doing to bring justice. There are so many wronged here; with such a corruptible system your work is so important! Sending clear hearts, razor-sharp minds, & all-around good vibes to Baltimore today.

Posted by: Luna | Feb 4, 2016 4:38:28 AM

Hi Colin -- It sounds like you are participating in Adnan's legal representation. Is this new, or were you retained a while back?

Posted by: Mike | Feb 4, 2016 4:52:56 AM

Anne: Thanks. My understanding is that there will be a written decision weeks or months after these proceedings. That said, the events in this case (remand, followed by reopening) are unprecedented, so you never know what might happen.

Luna: Thanks.

Mike: As you can see, my argument is that Rabia was taken off the defense witness list, and, according to the State’s own argument, cumulative given her testimony at the first PCR proceeding. As such, she should be treated as a member of the public who has the right to remain in the courtroom during the proceedings. So, the argument is really that Rabia is not part of the defense case, not an argument for the defense.

Posted by: Colin Miller | Feb 4, 2016 5:16:29 AM

Colin, thanks for the explanations. It's great to see everything fleshed out and I feel so badly for Rabia having to miss out :(

Posted by: Red | Feb 4, 2016 5:22:13 AM

There's a flaw in the prosecution's approach to Asia McClain. Today, I expect the state to continue to try and hammer her on the extent of her memory. This is different than impeaching a witness based on her level of dishonesty, which I would be surprised to see here. But the flaw is this: Asia's imperfect memory is not really the subject of the hearing. Adnan's argument isn't that Asia would have single-handedly won him an acquittal. It's that CG was incompetent by not even privately calling Asia to check out her story. The State can argue all it wants that Asia's story might be subject to some minor lines of cross-examination here and there. That still doesn't explain why a defense lawyer didn't even contact this major alibi witness.

I expect more vigorous cross-examination of Asia today, on her memory. But that's about all the State appears to have here. It can't just sit back and capitulate, especially since the Lee family appears to have communicated its desire that the conviction be defended.

On one issue, the State is perhaps the most vulnerable and has suffered the most irreversible damage from Asia: Kevin Urick improperly influencing her to not testify at the last PCR hearing. I find there to be no excuse whatsoever for all of the things Asia wrote down in her handwritten note from her Urick phone call, based on what Urick was feeding her. That's if you even generously ignore Asia's testimony, and focus only on what's in the notes. Why is Urick telling her that Adnan's guilty, and why is he commenting to her on evidence that's not relevant to her? There's only one reason: to influence her. I consider that to be tampering with a witness and very unethical conduct by a prosecutor. The State has no answer to this misconduct, it seems to me. Nor should it. It should confess error on at least this point.

Posted by: A Pro-Adnan Prosecutor | Feb 4, 2016 5:36:28 AM

I don't understand why the judge would sustain every prosecutor objection to getting Gutierrez' mental and physical decline on the record. Isn't her decline a huge part of proving IAC? It seems suspicious to me that the judge won't allow testimony on that topic.

Posted by: Beth | Feb 4, 2016 5:45:43 AM


1. Is the judge required to rule on each of the issues before him? Or could he, for example, rule that Adnan's verdict is overturned on the basis of IAC for failure to contact Asia and then not issue a ruling on the Brady/IAC/cell phone evidence, which could be revisited later should the need arise?

2. What are the consequences if the judge finds that Urick improperly dissuaded Asia from appearing at the original PCR hearing? One remedy for that - hearing Asia's testimony - would seem to have already been achieved. What else could come of this?

Posted by: Michael Byrnes | Feb 4, 2016 5:58:18 AM

Colin knocks it out of the park again! And excellent points, AM.

Posted by: Traci | Feb 4, 2016 6:06:18 AM

Thanks as always for the info and keep fighting the good fight!

Posted by: Fred | Feb 4, 2016 6:28:08 AM

Not to be a pest, but this doesn't really answer my question:
"Mike: As you can see, my argument is that Rabia was taken off the defense witness list, and, according to the State’s own argument, cumulative given her testimony at the first PCR proceeding. As such, she should be treated as a member of the public who has the right to remain in the courtroom during the proceedings. So, the argument is really that Rabia is not part of the defense case, not an argument for the defense."

You said you were asked to prepare a sequestration argument. I assume this was by Justin, and since the argument is based, at least partially, on "a defendant's Sixth Amendment right to a public trial," this argument would come from the defendant. So I assume you've are working as part of Adnan's defense team. Am I correct here? If so, how long have you been working as part of his defense team?

Posted by: Mike | Feb 4, 2016 6:34:18 AM

Colin - is it at all possible that the Judge can give his ruling from the bench at the immediate conclusion of these proceedings?

Posted by: Courtney | Feb 4, 2016 6:35:57 AM

Red: Thanks.

A Pro-Adnan Prosecutor: Agreed.

Beth: From what I can tell, he ruled this testimony to be cumulative to testimony and evidence already presented at the first PCR proceeding.

Michael: 1. The judge could rule on just one of the issues, but it’s likely he will rule on both because the case will be appealed. 2. The only remedy in Adnan’s case is that Asia gets to testify. There could, however, be secondary ramifications.

Traci: Thanks.

Fred: Thanks.

Mike: I got a call from Susan and a Twitter PM from Rabia. I then called Rabia, who asked if I could find an argument that she had a right to attend the proceedings. I found the case, wrote the argument, and sent it to them. The request did not come from Adnan’s attorney.

Courtney: Anything is possible, but I'm betting he waits to issue a written opinion.

Posted by: Colin Miller | Feb 4, 2016 6:39:23 AM

Still not trying to be a pest -- Are working as part of Adnan's defense team. If so, how long have you been working as part of his defense team?

Posted by: Mike | Feb 4, 2016 6:46:25 AM

A Pro-Adnan Prosecutor: First let me say I'm glad you identified yourself this way. It gives us lay people a little more faith that there are good, honest, and fair prosecutors willing to cross the "thin gray-flannel line" in support of truth and justice.

Correct me if I'm wrong, but I think the IAC claim has to succeed on two grounds, though. That CG was ineffective and unprofessional for not contacting Asia, and that this action prejudiced the case against Adnan. I assume the state's arguments that you commented on are meant to show that her testimony could have been torn apart to the point that it wouldn't have had a significant impact on the likelihood of a guilty verdict at trial. Therefore, CG's mistake was not prejudicial.

As for Urick's "witness tampering" I agree that it sounds like it was completely unethical, but to some extent it's his word against hers as to what he actually did/said. Also, he was in private practice by that time and was no longer an officer of the court, so I'm not sure the judge can hold his conduct against the state. Of course, the judge could rule that Asia should be given another chance to decide to testify, but she already has.

Posted by: Dan | Feb 4, 2016 6:47:15 AM

Has the Sixth Amendment right to a public trial been extended to post-trial proceedings? I assumed it was a right that was either upheld or violated at the time of trial (and other hearings during the initial trial phase) but that did not extend to the post-conviction relief phase (which is not itself constitutionally mandated). Rabia might arguably have her own, separate First Amendment right to attend as a member of the public, though (I believe there is some case law to the effect that the First Amendment right of access extends beyond the trial itself). Or, as you mentioned, the defense could argue for her inclusion under Maryland procedural rules as someone essential to the presentation of Adnan’s case.

Posted by: Josh | Feb 4, 2016 7:12:38 AM

If Rabia is sequestered why is she able to retweet all the live tweets from the PCR hearing.

Posted by: MaggieE | Feb 4, 2016 7:15:13 AM

Colin - Also I just noticed that while there is no evidence that Adnan ever told the police that he remained at school until track practice, this is claim that CG wrote on the alibi notice sent to Urick's office. Can/does this hold any legal weight?

Posted by: Dan | Feb 4, 2016 7:31:20 AM

On the email thing... even if CG/CG's team did check Adnan's email it does not mean that there would be any evidence of him using the email on that day. So it is entirely possible that he logged in, looked at his email, and logged out that day and nothing obvious in the Hotmail account would show this happened. Only if he responded to emails (or maybe did some other account maintenance like deleting emails or junk email) would there be any record of changes. So if CG logged into his email did not find any traces this doesn't prove anything with respect to his alibi. Thus it should not be a reason for her not contacting Asia.

Posted by: Eric | Feb 4, 2016 7:45:33 AM

Mike- based on your previous comment, your basis for the belief that Colin was working as part of the defense team was that you assumed his request to prepare the argument related to sequestration was made by Adnan's attorney. Colin corrected you and clarified that the request did not come from Adnan's attorney. I feel this answers your question since there is no reason to believe Colin is working as part of the defense team. He's obviously incredibly busy with attending the hearing, researching applicable case law, and keeping us informed as he is able. I would not expect him to respond to your question again.

Posted by: Michele | Feb 4, 2016 7:56:05 AM

Hi Colin - It may be too soon for you to address this, but I thought you or someone else posted that the State still had not handed over info about the Crime Stoppers tip and payout. Would that get covered in the PCR proceeding related to the Brady issues? Even if Adnan's attorney could now have that info another way (which would be great if he does), the fact that the State didn't provide it seems like a Brady issue.

Posted by: Jodi | Feb 4, 2016 7:59:04 AM

Mike, it seems pretty clear that Colin's sequestration argument was for Rabia and was based on Rabia's relationship with Colin, not on any relationship with Adnan's defense.

Posted by: Erin | Feb 4, 2016 8:23:14 AM

Mike: No, I’m not part of Adnan’s defense team.

Dan: Right. The defense has to prove unreasonable performance and prejudice.

Josh: That’s an interesting question.

MaggieE: She’s not in the courtroom, but she’s following what’s transpiring from outside the courtroom.

Dan: It does not. Alibi notices are irrelevant for this purpose, as the State itself has admitted.

Eric: Exactly.

Michele: It’s been a busy day, but I’m always happy to respond.

Jodi: It might come up, depending on who testifies.

Erin: Exactly.

Posted by: Colin Miller | Feb 4, 2016 9:37:54 AM

Thank you for doing this. Your clear head and arguments help me understand what is going on. I hope the judge rules on legal arguments only and does not let his feelings pro or con the personalities involved color his judgement.

Posted by: Mary | Feb 4, 2016 9:49:58 AM

From your prior explanations my understanding is that the content or State purported questionability of Asia's alibi is completely legally irrelevant for purposes of this PCR. All that matters is whether CG Defense team contacted Asia to determine her potential suitability as an alibi witness, period. Am I oversimplifying this in some way? The State is spending a ton of time on her memory and content of alibi. Is this just a red herring by the State meant to distract from the real legal issue?

Posted by: AMNOP | Feb 4, 2016 9:57:58 AM

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