An Analysis of the Conditional Application for Leave to Cross Appeal in the Adnan Syed Case

Today, Justin Brown filed a Conditional Application for Leave to Cross Appeal in the Adnan Syed case. This application is "conditional" because it is conditioned on the Court of Special Appeals (COSA) granting the State leave to appeal Judge Welch's opinion granting Adnan a new trial. If COSA denies the State leave to appeal, Judge Welch's opinion granting Adnan a new trial becomes final, and there would be no appeal, meaning that there would be no need for a cross-appeal.

This application is also not a response to the State's Application for Leave to Appeal (ALA). That will come later this week or early next week and argue that the State should not review Judge Welch's conclusion that Cristina Gutierrez was ineffective (IAC) in her handling of the cell tower pings. Instead, this Conditional Application is saying that, if COSA grants the State leave to appeal Judge Welch's opinion granting Adnan a new trial on the IAC/cell tower issue, it should grant the defense leave to (cross)appeal Judge Welch's opinion granting Adnan a new trial on the IAC/alibi witness issue.

The Conditional Application proceeds in 3 parts:

1.    Judge Welch Correctly Concluded that Gutierrez Unreasonably Failed to Contact Asia

The first prong of an IAC claim requires the defendant to prove that his trial counsel acted unreasonably. Judge Welch concluded that Cristina Gutierrez failed to contact prospective alibi witnesses Asia McClain and that this failure to contact was unreasonable. The Conditional Application quickly agrees with this conclusion, citing Grooms v. Solem,  923 F.2d 88, 90 (8th Cir. 1991) and Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992). I would be shocked if COSA reaches a different conclusion.

2.    Failure to Contact Asia alone caused enough prejudice to warrant a new trial

The second prong of an IAC claim requires the defendant to prove that his trial counsel's unreasonable performance caused prejudice. The question under this prong is whether reasonable performance by trial counsel (contacting Asia) would have created the reasonable probability of a different outcome at trial, i.e., whether it undermines our confidence in the jury's verdict. Judge Welch concluded that Gutierrez's failure to contact Asia McClain was not prejudicial for two reasons:

(1) the State’s theory regarding the time of the murder was “relatively weak[]” and was “premised upon inconsistent facts[;]” and

(2) “the crux of the State’s case” was the intersection between the Leakin Park pings and Hae's body being found buried in Leakin Park.

With regard to (1), the Conditional Application first argues that:

The fragility of the State’s theory means that it is “more likely to have been affected by errors” of trial counsel. Strickland, 466 U.S. at 696; see also United States v. Agurs, 427 U.S. 97, 113 (1976) (“[I]f the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.”).

I agree with this argument and think it finds support in the opinion of the Court of Appeals of Maryland in In re Parris W., 770 A.2d 202 (Md. 2001), which found prejudice on an IAC/alibi claim by stating the following

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.

A second argument in the Conditional Application is that failure to contact an alibi witness who contradicts the State's timeline is generally enough to establish prejudice. Specifically, the Conditional Application notes that the Grooms court found that

prejudice based on trial counsel’s failure to investigate an alibi witness “can be shown by demonstrating that the uncalled alibi witnesses would have testified if called at trial and that their testimony would have supported [the defendant’s] alibi.” 

Notably, the Court of Appeals of Maryland cited this exact language in In re Parris W. 

A third argument in the Conditional Application is that Adnan actually made a stronger argument on the prejudice prong than many other defendants who have made successful IAC/alibi witness claims. This is because there have been several cases in which courts have found prejudice based upon failure to contact alibi witnesses who merely would have 

corroborated a preexisting alibi defense. See, e.g., Stewart v. Wolfenbarger, 468 F.3d 338, 358-59 (6th Cir. 2006), as amended on denial of reh’g and reh’g en banc (Feb. 15, 2007) (finding prejudice where trial counsel failed to call alibi witnesses where testimony “would not have been cumulative and ‘would have added a great deal of substance and credibility to’ Petitioner’s alibi defense,” particularly because the uncalled alibi witness was friends with both petitioner and the victim); Clinkscale v. Carter, 375 F.3d 430, 445 (6th Cir. 2004) (finding prejudice where counsel failed to call alibi witness who would have corroborated defendant’s otherwise uncorroborated testimony regarding alibi, noting that “[h]ad even one alibi witness been permitted to testify on [the defendant’s] behalf, [the defendant’s] own testimony would have appeared more credible because it coincided in important respects with those of his alibi witness”).

The thinking here is that trial counsel's failure to corroborate an alibi isn't as prejudicial as failure to present an alibi defense altogether.

With regard to (2), a first argument in the Conditional Application is one that I previewed in this blog post: After the reopened PCR proceeding, the Supreme Court issued its opinion in Wearry v. Cain. In that opinion, the Court rejected the argument that the crux of the State's case was evidence "that Wearry may have been involved in events related to the murder after it occurred." According to the Court,

Perhaps, on the basis of this evidence, Louisiana might have charged Wearry as an accessory after the fact....But Louisiana instead charged Wearry with capital murder, and the only evidence directly tying him to that crime was Scott’s dubious testimony, corroborated by the similarly suspect testimony of Brown.

The sample applies here: Evidence that Adnan might have been in Leakin Park on the evening of January 13th might have been the crux of an accessory after the fact conviction, but it could not support his conviction for murder.

A second argument in the Conditional Application is the argument that Judge Welch failed to consider the collateral effects of alibi testimony by Asia McClain. According to the Conditional Application, "[t]he State acknowledged at trial that its case 'hinge[d] on [Wilds’] testimony," which included at least one claim that the murder had been completed by 2:30 P.M. As such, alibi testimony by Asia McClain would have called into question not only the State's timeline but also the credibility of its key witness.

3.   Judge Welch shouldn't have assessed prejudice for failure to investigate in isolation 

According to the Conditional Application,

When analyzing whether counsel’s deficient performance caused prejudice to a defendant, a court must consider “the totality of circumstances” and the “cumulative effect of all errors.” Schmitt v. State, 140 Md. App. 1, 19 (2001); see also Wearry, 136 S. Ct. at 1007 (reversing denial of postconviction relief in part because “the state postconviction court improperly evaluated the materiality of each piece of evidence in isolation rather than cumulatively”); Kyles, 514 U.S. at 421 (noting, in the context of Brady claims, for which the same prejudice standard applies, that courts must consider “the cumulative effect of all such evidence suppressed by the government”).

I previewed this argument in this blog post. Basically, the point is that Judge Welch should have looked at the combined prejudice of Gutierrez's failures with regard to the cell tower pings and the alibi witness instead of looking at each failure independently. Precedent, however, says otherwise. So, why is this important?

Assume that COSA agreed with Judge Welch's conclusion that failure to contact Asia alone was not prejudicial and also finds that failure to challenge the cell tower pings alone was not prejudicial. Under Judge Welch's logic, COSA should deny Adnan a new trial. But the Conditional Application is (correctly) arguing that COSA should look at aggregate prejudice. Therefore, as long as the combined prejudice of these two errors was enough to undermine confidence in the verdict, Adnan should get a new trial.

-CM