EvidenceProf Blog

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

Tuesday, March 1, 2016

A Brief Post on Adnan's Motion to Supplement the Record

Today, Adnan's attorney, Justin Brown, filed a motion to supplement the record in the reopened PCR proceedings. Specifically, he is seeking to supplement the record with (1) a letter from Deputy Attorney General Thiru Vignarajah indicating that Professor Michael Millemann solely represented Adnan back in 1999 "for the limited purpose of enforcing the defendant’s right to be represented by counsel of his choice;" and (2) a letter from Professor Millemann indicating that Vignarajah (a) failed to contact him before describing his role at the proceedings; (b) misrepresented his role at the proceedings;  (c) failed to run his letter by Millemann before sending it to Judge Welch; and (d) misrepresented the nature of Millemann's objection in his letter.

In and of itself, this motion might not seem that important, but the key point is that the letter(s) could cause Judge Welch to question everything that Vignarajah said and presented at the reopened PCR proceedings. It could also cause Judge Welch to question everything that Vignarajah wrote in his briefs. This is because Vignarajah's error was not something he made in the heat of the moment at the proceedings. Take a look, for instance, at Vignarajah's Brief of Appellee (pg. 11):

Prior to trial, Syed was represented by two prominent attorneys, both law professors today, Michael Millemann and Douglas Colbert....Gutierrez was selected in part on the strength of Millemann’s and Colbert’s endorsement of her; Syed’s mosque also screened candidates and conducted interviews of three attorneys, before deciding that Gutierrez was the best choice.

Again, this statement is simply wrong. Douglas Colbert and Chris Flohr initially represented Adnan as part of the Lawyers at Bail project before Cristina Gutierrez took over for trial at the recommendation of Flohr (and maybe Colbert). Millemann was only brought on after the decision was made to hire Gutierrez, and he was hired "for the limited purpose of enforcing the defendant’s right to be represented by counsel of his choice."

Again, in isolation, this might not seem like a huge deal. But if it causes Judge Welch to review each State argument with a fine toothed comb, he will likely find some more significant misrepresentations.



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It seems incredible that the prosecution is so duplicitous in all of their dealings in this case (both historically and, it seems, more recently).

I am curious how all of this is playing locally in Baltimore? Are other cases being impacted by the apparent incompetence and deceit of the prosecution? I feel for the people of Maryland, they deserve better representation by their public officials.

Posted by: Barry in Delta | Mar 1, 2016 1:17:46 PM

I’m sorry, Prof, but I am lost again in the US legal system. Can you please tell me again how a prosecutor can, I feel that ‘lie’ is the correct word here but let’s go with ‘misrepresent’ for politeness, the words and actions of another lawyer to the court and for there to be no apparent consequences for that prosecutor? I mean serious consequences not just that the judge might now begin to doubt other things that prosecutor claimed in a given case. I know you have said before that prosecutors are rarely charged, and even more rarely convicted, for prosecutorial misconduct. I just want to know why. Is not the honesty of court officials and the integrity of evidence the very foundation of any justice system worth the name? Why does everyone just shrug their shoulders at Urick and Thiru and their blatantly illegal behaviour?

Posted by: FarFarAway | Mar 1, 2016 2:43:52 PM

This does certainly undermine Thiru's arguments and credibility. I really think he was just putting forth any sort of effort and then hoping the judge would believe Adnan was guilty and would rule based on that belief rather than legal precedent.

Posted by: Robert Kirkpatrick | Mar 1, 2016 2:56:34 PM

I don't understand why the state was against Tina representing adnan? Ironically they would have done adnan a favor if they had been successful. Why were they objecting?

Posted by: Cathy my real name | Mar 1, 2016 3:10:33 PM

Justin Fenton, reporter for the Baltimore Sun, appeared at times to be biased in favor of the State in his reporting of Adnan's recent PCR hearing. It will be very interesting, in light of the comment above, to read his comments on yesterday's supplemental filing. I can only guess at how high Judge Welch's eyebrows were raised upon receipt of the CJ Brown supplement.

Posted by: Elaine | Mar 2, 2016 4:56:34 AM

I think Prosecutors should be held to the same level of scrutiny as Defense lawyers. The State SHOULD be the "good guy on the side of justice" but the system rewards bad behavior with convictions. Both sides should be looking for the truth and NOT a conviction. I just wish there were more prosecutors who would turn down flimsy cases like this in favor of focusing on cases with better evidence and investigation.

Posted by: Megan Pawlak | Mar 2, 2016 6:17:39 AM

How did Michael Millemann know he was misrepresented in the PCR, since he was the one who initiated the contact with Justin Brown, right?

Do you also think that if Justin contacted Michael first, it might be seen by the judge as teasing the state to write a letter that they were wrong about something?

Is this something that happens more in PCR hearings, or does this have to do with this PCR being high profile.

Posted by: Martin | Mar 2, 2016 7:39:51 AM

Coming more than 20 minutes late to this thread but couldn't the note "20 mins late" also be interpreted as Adeloye himself being 20 minutes late to practice? This notation is a bit like a horoscope - you see in it what you want to see - which is why the state shouldn't be using it as a smoking gun.

Posted by: VG | Mar 2, 2016 7:40:50 AM

Barry: Good question.

FarFarAway: Many would claim that prosecutors (and lawyers in general) are not disciplined nearly enough in the U.S.

Robert: Or he just didn’t know the record that well.

Cathy: She had a great reputation at the time as a great defense attorney.

Megan: Agreed.

Martin: Doug Colbert was at the proceedings and also teaches at the University of Maryland Law School, so I’d guess he told him. That’s just a guess, though.

VG: Good point.

Posted by: Colin Miller | Mar 2, 2016 3:58:06 PM

I think you misunderstood my question. Why did the state object to Tina being adnans lawyer? I have another unrelated question. If failure to contact Asia is such a big deal why did judge Welch not use it to give adnan a new trial at the previous pcr? I am having a hard time understanding that! Thanks Colin loved seeing you via periscope at the night for justice:)

Posted by: Cathy my real name | Mar 9, 2016 12:20:10 PM

Judge Welch denied the earlier motion to reopen because Asia didn't testify. Urick testified though, and he told the judge that Asia not showing up was intentional on Asia's part. This led the judge to conclude that the entire Asia angle was meritless.

Of course we all know that Urick misled the court with those statements. It will be interesting to see Judge Welch's reactions to learning the truth behind why Asia didn't show up.

Posted by: A Pro-Adnan Prosecutor | Mar 10, 2016 4:29:05 AM

Any idea on how long the judge will take to rule on the PCR hearings?

Posted by: Tiffany | Mar 11, 2016 5:09:48 PM

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