EvidenceProf Blog

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

Tuesday, March 15, 2016

Supreme Court's Opinion in Wearry v. Cain Could Have an Effect on Adnan's Appeal

A week ago, the United States Supreme Court issued its opinion in Wearry v. Cain. As has already been noted, this opinion could have an effect on Judge Welch's opinion in the Adnan Syed case. In this post, I will explain why.

Let's start with the facts of Wearry

Sometime between 8:20 and 9:30 on the evening of April 4, 1998, Eric Walber was brutally murdered. Nearly two years after the murder, Sam Scott, at the time incarcerated, contacted authorities and implicated Michael Wearry. Scott initially reported that he had been friends with the victim; that he was at work the night of the murder; that the victim had come looking for him but had instead run into Wearry and four others; and that Wearry and the others had later confessed to shooting and driving over the victim before leaving his body on Blahut Road. In fact, the victim had not been shot, and his body had been found on Crisp Road.


Scott changed his account of the crime over the course of four later statements, each of which differed from the others in material ways.

The State's other main witness was Eric Brown, who

testified that on the night of the murder he had seen Wearry and others with a man who looked like the victim. Incarcerated on unrelated charges at the time of Wearry’s trial, Brown acknowledged that he had made a prior inconsistent statement to the police, but had recanted and agreed to testify against Wearry, not for any prosecutorial favor, but solely because his sister knew the victim’s sister.


Wearry’s defense at trial rested on an alibi. He claimed that, at the time of the murder, he had been at a wedding reception in Baton Rouge, 40 miles away. Wearry’s girlfriend, her sister, and her aunt corroborated Wearry’s account. In closing argument, the State stressed that all three witnesses had personal relationships with Wearry. The State also presented two rebuttal witnesses: the bride at the wedding, who reported that the reception had ended by 8:30 or 9:00 (potentially leaving sufficient time for Wearry to have committed the crime); and three jail employees, who testified that they had overheard Wearry say that he was a bystander when the crime occurred.

After he was convicted and given a death sentence, Wearry appealed, claiming that (1) the State committed a Brady violation by failing to turn over material exculpatory evidence; and (2) his trial attorney gave him ineffective assistance by failing to further investigate the wedding alibi. Because the Court found that there was a Brady violation, the Justices did not (need to) reach the ineffective assistance claim.

So, what was the nature of that Brady violation? According to the Court,

First, previously undisclosed police records showed that two of Scott's fellow inmates had made statements that cast doubt on Scott’s credibility. One inmate had reported hearing Scott say that he wanted to "'make sure [Wearry] gets the needle cause he jacked over me.'"...The other inmate had told investigators—at a meeting Scott orchestrated—that he had witnessed the murder, but this inmate recanted the next day. "Scott had told him what to say," he explained, and had suggested that lying about having witnessed the murder "would help him get out of jail."...

Second, the State had failed to disclose that, contrary to the prosecution’s assertions at trial, Brown had twice sought a deal to reduce his existing sentence in exchange for testifying against Wearry. The police had told Brown that they would "'talk to the D. A. if he told the truth.'"

Third, the prosecution had failed to turn over medical records on Randy Hutchinson. According to Scott, on the night of the murder, Hutchinson had run into the street to flag down the victim, pulled the victim out of his car, shoved him into the cargo space, and crawled into the cargo space himself. But Hutchinson’s medical records revealed that, nine days before the murder, Hutchinson had undergone knee surgery to repair a ruptured patellar tendon....An expert witness, Dr. Paul Dworak, testified at the state collateral-review hearing that Hutchinson’s surgically repaired knee could not have withstood running, bending, or lifting substantial weight. The State presented an expert witness who disagreed with Dr. Dworak’s appraisal of Hutchinson’s physical fitness.

While the majority granted Wearry a new trial, Justice Alito wrote a dissenting opinion (joined by Justice Thomas) denying relied. On the first issue, with regard to the inmate who heard the "jacked over" comment, Justice Alito concluded that

If petitioner’s counsel had actually attempted to use this evidence at trial, the net effect might well have been harmful, not helpful, to the defense. The undisclosed police report on which the Court relies may be read to mean that Scott blamed petitioner for putting him in the position of having to admit his own role in the events surrounding the murder and thereby expose himself to the 10-year sentence and lose an opportunity to secure early release from prison on the drug charges. If defense counsel had attempted to impeach Scott with this police report, the effort could have backfired by allowing the prosecution to return the jury’s focus to a point the State emphasized often during trial, namely, that Scott’s accusations were credible precisely because Scott had no motive to tell a story that was contrary to his own interests.

With regard to the coached witness, Justice Alito contended that

This prisoner never testified at trial, and there is a basis for arguing that this information would not have made a difference to the jury, which was well aware that Scott did not have an exemplary record of veracity. Scott himself admitted to fabricating information that he told the police during their investigations. In addition, a witness who did testify against petitioner at trial also accused Scott of asking him to lie, although admittedly this witness later denied making this accusation. Given that the jury convicted even with these quite serious strikes against Scott’s credibility, there is reason to question whether the jury would have seriously considered a different verdict because of an accusation from someone who never took the stand.

Next, with regard to the second issue, that Brown sought a deal, Justice Alito argued that

it is far from clear that disclosing the contradictory information had real potential to affect the trial’s outcome. For one thing, there is no evidence that Brown (unlike Scott) actually received any deal, despite defense counsel’s efforts in cross-examination to establish that Brown’s testimony might have earned him leniency from the State. Moreover, Brown admitted during the exchange that he had manipulated his initial story to the police to avoid implicating himself in criminal activity. We know, then, that the jury harbored no illusions about the purity of Brown’s motives, notwithstanding the prosecutor’s opening misstatement.

Then, with regard to the third issue, that Hutchinson had a medical issue, Justice Alito concluded that

one of the State’s witnesses testified at trial that he had seen records showing that Hutchinson had had surgery on his knee "about nine days before the homicide happened."... The jury thus knew the most salient fact revealed by these records—that Scott had attributed significant strength and mobility to a man nine days removed from knee surgery.

Finally, Justice Alito found that disclosure of this information before trial would not have changed the outcome because there was

considerable evidence of petitioner’s guilt. Aside from Scott’s and Brown’s testimony, three witnesses told the jury that they saw petitioner and others driving around shortly after the murder in the victim’s red car, which according to one of these witnesses had blood on its exterior. Petitioner offered to sell an Albany High School class ring to one of these witnesses and a set of new speakers to another. The third witness said he saw petitioner throw away a bottle of Tommy Hilfiger cologne. Meanwhile, the victim’s mother testified that her son wore an Albany High class ring that was not recovered with his body, had received speakers as a gift shortly before his murder, and had a bottle of Tommy Hilfiger cologne with him on the night when he was killed. In addition, three jailers testified that petitioner called his father after his eventual arrest and stated that "he didn’t know what he was doing in jail because he didn’t do anything [and] was just an innocent bystander."

It's easy to draw parallels between Wearry's case and Adnan's case. Just like Wearry, Jay gave an initial statement (on February 28th) and then "changed his account of the crime over the course of four later statements, each of which differed from the others in material ways."* As in Wearry, the jury in Adnan's case was aware of "quite serious strikes against [Jay’s] credibility," and the State emphasized that "[Jay] had no motive to tell a story that was contrary to his own interests. In Wearry, the State cited "considerable" evidence of the Wearry's guilt; in Adnan's case, the State cited "overwhelming" evidence of Adnan's guilt. In the end, though all the State had in both cases was a key witness with issues (Scott/Jay), a secondary witness who wasn't especially helpful (Brown/Jenn), and a bunch of circumstantial evidence that didn't directly point to the defendant's guilt for murder.

Here's how the majority summed things up in Wearry: "The State’s trial evidence resembles a house of cards, built on the jury crediting Scott’s account rather than Wearry’s alibi." In Adnan's case, the facts are very similar, except that the jury never heard Adnan's alibi. Judge Welch, however, has now heard that alibi, and he is now tasked with deciding whether the failure to contact Asia was prejudicial and/or whether the misleading disclosure of cell tower evidence was prejudicial (IAC) or material (Brady).

The test for prejudice under IAC/Strickland is basically the same as the test for materiality under Brady, meaning that Judge Welch could easily cite to the majority's findings in Wearry to reverse Adnan's convictions. Here are three quotes from the majority that seem helpful to Adnan's case:

1. Evidence qualifies as material when there is "'any reasonable likelihood'" it could have "'affected the judgment of the jury.'"...To prevail on his Brady claim, Wearry need not show that he "more likely than not" would have been acquitted had the new evidence been admitted....He must show only that the new evidence is sufficient to "undermine confidence" in the verdict.[FN6]

[FN6] Given this legal standard, Wearry can prevail even if, as the dissent suggests, the undisclosed information may not have affected the jury’s verdict.

2. As the dissent recognizes, "Scott did not have an exemplary record of veracity."...Scott’s credibility, already impugned by his many inconsistent stories, would have been further diminished had the jury learned that Hutchinson may have been physically incapable of per- forming the role Scott ascribed to him, that Scott had coached another inmate to lie about the murder and thereby enhance his chances to get out of jail, or that Scott may have implicated Wearry to settle a personal score.  Moreover, any juror who found Scott more credible in light of Brown’s testimony might have thought differently had she learned that Brown may have been motivated to come forward not by his sister’s relationship with the victim’s sister—as the prosecution had insisted in its closing argument—but by the possibility of a reduced sentence on an existing conviction....Even if the jury—armed with all of this new evidence—could have voted to convict Wearry, we have "no confidence that it would have done so."...

3. Reaching the opposite conclusion, the state postconviction court improperly evaluated the materiality of each piece of evidence in isolation rather than cumulatively,..., emphasized reasons a juror might disregard new evidence while ignoring reasons she might not,..., and failed even to mention the statements of the two inmates impeaching Scott.

The first quote goes directly to the State's argument that it might have been able to shift the timeline if Asia had testified, replacing a 2:36 P.M. Best Buy call with a 3:15 P.M. Best Buy call. As Wearry makes clear, even if Asia's alibi "may not have affected the jury's verdict," it can still be sufficient to order a new trial as long is it undermines our confidence in the verdict.

The second quote strikes a similar tune and addresses the same factual context present in Adnan's case: an inconsistent key witness for the prosecution. As in Wearry, the State has tried to claim in Adnan's case that the credibility of its key witness was shot, meaning that adding an alibi witnesses or removing the cell tower corroboration wouldn't have moved the needle much. But Wearry makes clear that the court doesn't have to be convinced that this new information would have moved the needle. Even if Judge Welch thinks that the jurors still could have believed Jay, he can still order a new trial.

The third quote is interesting because it addresses something I haven't addressed before. Assume that Judge Welch finds that Gutierrez (1) unreasonably failed to contact Asia; and (2)(a) failed to use the AT&T disclaimer; or (b) was misled by the prosecution regarding the disclaimer. Judge Welch might find each of these errors, standing alone, was not enough to create prejudice. But, according to the Wearry majority, we would look at these errors together and the combined prejudice they created.

I don't know that Judge Welch will cite to Wearry in his opinion, but there are certainly statements in that opinion that could be used to support an opinion granting Adnan a new trial.


*March 15th, March 18th, April 13th, and trial testimony.



| Permalink


In theory could Adnan's case come before the supreme court if he fails to get a favorable ruling in the court of special appeals?

Posted by: Robert Kirkpatrick | Mar 15, 2016 10:27:35 AM

Very convincing. Is there any respectable opinion (e.g., comparable academic blogger) that would defend denial of a new trial?

Posted by: Cassidy | Mar 15, 2016 10:59:32 AM

Do you think Welch is going to be so thorough and go through all of these precedents? Is that what is taking so long?

Posted by: Matt | Mar 15, 2016 10:59:45 AM

Assuming Adnan's motion is rejected this time and Welch does not use this case...could his defense cite this ruling on appeal?

Posted by: danny m | Mar 15, 2016 11:48:42 AM

I keep hearing about various convictions getting overturned under circumstances far murkier and less unequicocal than exist in Adnan's case. It seems like this should mean Adnan's reversal is a shoe-in, but from what everyone is saying this doesn't seem to be the case.

Is this an artifact of a wide range of judges around the country, and each of their own personalities and tendencies winning out? Is it common to find judges who make decisions that fly in the face of established precedent? Or is it rare, as one would hope?

Posted by: Paul | Mar 15, 2016 5:19:13 PM

Robert: Theoretically, it could, but it’s unlikely.

Cassidy: If so, I haven’t seen it.

Matt: I’m sure Judge Welch will be thorough, and that’s why a decision takes so long.

danny m: Sure.

Paul: I’m pretty convinced Adnan gets a new trial unless Judge Welch makes some pretty unfavorable factual findings in his opinion. I’m not convinced that Judge Welch grants him a new trial. It’s tough to get a judge to change his prior opinion, and I wasn’t in the courtroom to see exactly what happened. But I feel great about Adnan’s chances on appeal, pending what is in Judge Welch’s opinion.

Posted by: Colin | Mar 16, 2016 3:58:18 AM

Can you please explain: "I'm pretty convinced Adnan gets a new trial..." "I"m not convinced that Judge Welch grants him a new trial." Do you mean you think he eventually will get a new trial, but most likely on appeal from the decision in this hearing?
Also, one of the parallel's you draw to this case is that Jay changed his account of the crime several times. But is it correct that Judge Welch can't consider that in his ruling? I find it quite amazing that the jury in Adnan's trial believed Jay after all of his changing accounts (esp. given his deal with the prosecutor).

Posted by: KC | Mar 16, 2016 4:56:09 AM

KC- I don't believe that the jury knew the details of Jay's deal with Urick. One of the jurors interviewed in Serial thought that Jay went to prison too.

Posted by: Leah | Mar 16, 2016 8:53:02 AM

KC: I’ve cited to some vey favorable opinions by the Court of Special Appeals and Court of Appeals of Maryland. I think that Judge Welch will cite to these opinions in granting a new trial. If he doesn’t, however, I have even more confidence that these same courts will grant a new trial on appeal.

Also, Judge Welch absolutely can take into account Jay’s changing story. He can’t consider Jay’s new Intercept story, but he can take into account the changes in Jay’s stories that were explored during his cross-examination at trial. As in Wearry, these changes can be used to show the weakness in the State’s case, making Asia’s testimony and the cell tower evidence all the more important.

Posted by: Colin | Mar 16, 2016 12:24:30 PM

Wouldn't the judge be even more concerned about being overturned by the appeal court (and therefore be shown to be wrong, and very publicly, given all the media attention), than by overturning himself? Interesting article on this idea: http://eprints.lse.ac.uk/939/1/Careerist_Judges_(Journal_article).pdf

Posted by: Cupcake | Mar 16, 2016 2:20:39 PM

We are all saddened to see wrongly convicted people in prison. Until prosecutors and law enforcement officials face consequences for blatant violation of civil rights of the accused, we should not expect an improvement. There is a case in where a federal Judge caught a St Paul MN police officer in the act of falsifying testimony and other evidence. What do you think her punishment was? How about a paid week off! I think the system we have is no accident and until we demand bottom up changes, we are stuck with it.

Posted by: Libaax | Mar 16, 2016 5:50:48 PM

I heard in the undisclosed podcast, y'all stated the jurors stated they DID hold Adnan's decision not to testify against him in their decision to convict him. Isn't that something that should be explored further? Could that grant him a new trial based on juror misconduct?

Posted by: Cibi | Mar 30, 2016 7:42:56 AM

Post a comment