EvidenceProf Blog

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

Saturday, April 29, 2017

The State's Erroneous Claim That Judge Welch Didn't Apply the Presumption of Reasonableness

In yesterday's Reply Brief and Appendix of Cross-Appellee in the Adnan Syed case, the State argued as follows:

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This is an odd argument because Judge Welch clearly did apply the presumption of reasonableness in his opinion granting Adnan a new trial. Here's the relevant portion of that opinion:

Screen Shot 2017-04-29 at 3.52.41 PM

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Now, I suppose that maybe the State was saying that Judge Welch didn't really apply the presumption despite saying that he was applying it. But, if that's the case, why did the State then note that the defense failed to address this presumption, which clearly implies that they had reason to correct an apparent omission by Judge Welch. But the defense is claiming that Judge Welch reached the correct conclusion. So, why would they have reason to mention the presumption, if Judge Welch already found that it applied but was rebutted?



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How is Judge Welch's application of a presumption of reasonableness reviewed? Does CSA simply go "Nope, he applied it" or do they review, de novo, whether it was applied appropriately?

Also, did the state raise this issue in their initial brief? If they did, maybenit makes sense that Adnan should have responded? If they are brining this up now for the first time it seems weird for them to chide Adnan for not responding to arguments they didn't make.

Posted by: Michael | Apr 29, 2017 1:36:24 PM

Oh, come on, Colin. Of course the State meant Judge Welch did not “really,” actually, apply a presumption of reasonableness. By “not[ing] that the defense failed to address this presumption,” the State did not “clearly impl[y]” that the defense “had reason to correct an apparent omission by Judge Welch.” That line from the State’s brief means what it says – that Syed failed to address the presumption. It doesn’t say Syed failed to address the lower court’s failure to appropriately apply the presumption.

The defense could have acknowledged that Gutierrez’s performance must be presumed adequate, then gone on to argue that the presumption has been rebutted. In fact, the defense made a similar statement elsewhere in its brief. See p.24 (“Although Syed bears the burden to rebut a presumption of intelligent and knowing waiver, this burden is met here.”). It didn’t do that when discussing the performance prong of Strickland. That’s all the State was saying.

Posted by: Sam | Apr 29, 2017 5:12:11 PM

Is there a "not" missing between "reason" and "to correct."? Or am I parsing it wrong?

Posted by: pluscachange | Apr 29, 2017 5:37:33 PM

Michael: The presumption is legal analysis, so the Court of Special Appeals will do a de novo review of the issue. But the factual issues underlying that legal analysis, like whether the disclaimer applied to Exhibit #31, are reviewed for clear error.

Sam: The State’s reply brief has the heading, “The Post-Conviction Court Did Not Apply the Presumption of Reasonableness to Which Gutierrez’s Performance was Entitled,” followed by more than a page of discussion of the issue. As I noted in my post, that argument can be read in one of two ways. The first seems disingenuous. The second seems to be a waste of ink.

pluscachange: I don’t think a “not” should be there.

Posted by: Colin | Apr 29, 2017 6:05:11 PM

@Colin --

Thanks. I think my mistake was in assuming that since we're talking about Thiru, whatever suggestion he was making would be slimy. I therefore naturally concluded, that he was accusing the defense of dishonestly failing to correct an obvious error because it erred in their favor.

I think I've got it now.

Posted by: pluscachange | Apr 29, 2017 7:26:53 PM

Colin -
I just learned of you today through someone I met. I beleived there is a significant amount of overlap in our respective projects. We should talk about cross-blogging, our show, affiliation, and more. Reach out when you have a few minutes.

Posted by: Tom Scott | Apr 30, 2017 1:48:01 AM

Sam, such assertions remind me of xtrialatty's short-lived argument following the PCR hearing that (these are his words not mine) Welch was obviously going to apply the missing witness rule in the states favor.

That oldie-but-goodie mental gymnastic went something like this:

1. Gutierrez's law clerks could, if called to testify at the PCR hearing, would ieither confirm or deny the states claim that Asia was totally investigated before trial.
2. The defense did not call any of these clerks at the hearings to prove that, just in case they were asked, they wouldnt provide such testimony.
3. Therefore, Judge Welch will totez-mcGotez conclude that's why the defense didn't call them! Bc they'd have given up all the evidence the state needed to prove its case.
4. Welch applies Missing witness rule = Justin Brown going down. (Mic drop)

...and believe it or not, despite so consistently expressing an attitude of cocky certainty, it didn't end up going xtrialatty's way that time (just like every other time).

Hey tho maybe this is different. Maybe this time the defense will indeed suffer for failing to proactively rebut everything/anything Thiru could potentially/hypothetically at some point in the future maybe try to argue. Maybe not arguing that Welch didn't not apply the reasonableness standard was a critical misstep on Justin Brown's part.

Posted by: Paul | May 2, 2017 9:58:05 PM


I have no idea who “xtrialatty” is or why his existence should matter to me, and even if I did, I’d still likely find most of your post unintelligible. I’ll just respond to the last paragraph, which I can partly decipher. I don’t think the State magically wins this issue because Team Syed failed to acknowledge that it had to overcome a presumption of reasonableness, and the State never made any such claim. If it had said Syed “waived” or “conceded” something, that would be different. Colin points out that the State devoted [slightly] “more than a page” (*gasp*) of its 43-page brief on this, so it must be have been making the “disingenuous” point that the Court was oblivious to the appropriate standard, and that Syed failed to correct the court. Anything else, CM claims, would be a “waste of ink.” Baloney.

After that section’s opening sentence, there isn’t another mention of any “failure” on the part of the court or Syed. The section is about how this presumption is hard to overcome in the context of cross examination, and why the presumption has not been overcome here.

Colin and the rest of the Syed Tribe seem to relish any opportunity they can find to make the State look dishonest, sneaky, or inept. Their accusations are consistently overblown. See, e.g., “The State Missed a Hugely Important Case…” (no, it didn’t); “Why the Law’s All on the Defense’s Side…” (badly misreading Bowers to make the State look dishonest when it wasn’t).

I don’t have time to delve into all these posts, but whenever I do, I find little if any fire under the smoke. But hey, I get it. Making that State look evil fires up the Syed groupies, makes them read the posts (and ads) on EvidenceProf Blog, and prompts them to tune into the (almost unlistenable) Undisclosed podcast, where they hear about great deals from Blue Apron.

Posted by: Sam | May 3, 2017 11:40:47 AM

Sam: My legal posts have primarily addressed: (1) whether COSA would grant Adnan leave to appeal; (2) whether COSA would remand back to the Circuit Court; (3) whether Judge Welch would grant the motion to reopen; (4) whether Judge Welch would allow the cell tower supplement; and (5) whether Judge Welch would grant Adnan a new trial. My legal analysis was correct on all of these points. I referred to both the bail question and the question of whether COSA would grant the State leave to appeal as “coin flips.” Ultimately, Judge Welch denied bail and COSA granted leave to appeal. Going way back to my first posts about this case, I’ve consistently said that Adnan wouldn’t win on the IAC/plea deal issue. I still think he loses that issue.

Now, I’m writing on the other two issues. I think I’ve made it pretty clear that I think Adnan will win the Asia issue on appeal. As I’ve written recently, I think that Adnan has a really good case on the substance of his cell tower claim, but there might be procedure and scope issues. I could very easily end up being wrong on some of these issues, but I think it would be pretty tough to look at my record up to this point and say that my analysis has been wrongheaded.

Posted by: Colin | May 3, 2017 1:23:43 PM

Colin, your longer discussions of the main legal issues in this case are fair enough. I’m taking issue with these one off posts that just seem like clickbait for your Twitter followers. It’s a problem I have with a lot of defense and defense-minded attorneys. They aren’t satisfied with saying “the State is wrong on this legal issue” or “the defendant is innocent because of problems X, Y, and Z with their evidence.” They have to go further and accuse prosecutors of being unethical for taking the positions they take. Sometimes that charge is warranted; often it isn’t.

You do this subtly by, for example, devoting a whole post to accuse the State of being “disingenuous” based on one sentence that’s subject to two interpretations, one of which isn’t disingenuous at all. Some of the other members of the Undisclosed team do this rabidly, by trolling AG Brian Frosh on Twitter, or by personally attacking the lead attorney on the appeal. I saw one Rabia tweet that told him to “burn in hell.” Really?? I admittedly don’t know much about the background of the case or the attorneys involved in it, but that hardly seems like something one lawyer should say about another. I’ve never seen you do anything that egregious, but it sometimes seems like you’re straining to find ways of accusing the prosecutors of being unethical. If you think Syed’s innocent, you should say why (which you do). If you think the State’s wrong on the law, you should say why (which you do). But your eagerness to cry foul over something like the subject of this post makes you the Boy Who Cried Wolf in my mind. If the State were to do anything truly improper in this case, and if you were to write a blog post about it, I’d probably be rolling my eyes before I even started reading it. All that said, I commend your grace in the face of withering criticism.

Posted by: Sam | May 4, 2017 10:13:30 AM

Sam: I understand where you're coming from, but I didn't use the word disingenuous. In the post, I said this was an "odd argument;" in the title I said it was "erroneous." I don't see any allegation that the State was unethical in my post. I'm just saying they (possibly) got it wrong.

Posted by: Colin | May 4, 2017 11:33:27 AM


Putting two independent clauses in the same sentence suggests that they're closely interrelated in a way that adds up to one thought. That's why people do it. This is extra true when there's parallel construction.

Therefore, it's actually a more strained reading to understand "The post-conviction court erred in failing to apply Strickland's presumption of reasonableness, and Syed entirely fails to address this presumption in his Brief of Appellee" as meaning the same thing as "The post-conviction court erred in failing to apply Strickland's presumption of reasonableness. Syed entirely fails to address this presumption in his Brief of Appellee." The conjunction plainly indicates, "These two failures are meaningfully related, the second one flows from the first."

You can also do the same thing with a comma, like I just did.

But seriously: If all that the State meant was that Syed failed to acknowledge the presumption in his Brief of Appellee, the sentence would be a run-on. I don't think it's unreasonable or willful for Colin to assume that it isn't.

Posted by: pluscachange | May 4, 2017 5:22:52 PM

Sam, just because you respond with something reasoned and thought out--that doesn't change what I was originally responding to.

All I said was that your first post argument reminded me of a similar argument advanced a while back by a different user who frequented the blog.

Since you say you don't know who that is, then indeed it makes sense that my post was cryptic to you. Luckily I wasn't writing for the sole purpose of entertaining you.

The rest of what you say, those potshots against Colin's blog, are frankly absurd. Those comments far better describe arguments put forth in the States briefs, which is what Colin does here.

If you are trying to claim reasonableness, and argue against unwarranted conspiracy theorizing, then taking up in defense of the state's briefs is... well it puts you in tenuous waters indeed.

Remember, simply claiming righteousness and reasonableness doesn't change the actual facts&substance of what we are talking about here.

Posted by: Paul | May 5, 2017 12:11:39 AM

You write: “These two failures are meaningfully related, the second one flows from the first.”
That’s actually a comma splice, often considered a form of run-on sentence, and undoubtedly a grammatical error. The sentence in the State’s brief, on the other hand, isn’t a run-on no matter how it’s interpreted. I could write “I disagree with your grammatical analysis, and I’m hungry for dinner.” That’s not a run-on, though it is a silly joining of two unrelated ideas. On the other hand, the court’s failure to properly apply the presumption of reasonableness and Syed’s failure to acknowledge its existence in his brief are hardly so unrelated that they couldn’t be joined by a comma and the word “and.” I don’t think it’s unreasonable of Colin to disagree with me about what the State meant. However, I do think the sentence is sufficiently unclear that I’d hesitate to call the state “disingenuous” (which Colin did do, though admittedly in the comment section).

I don’t mind your snark (I dish out plenty of my own), but don’t backpedal now. Your post was clearly meant to draw a parallel between my argument and xtrialatty’s. Your references to his “mental gymnastics” and his “attitude of cocky certainty” suggest you thought the same of my reasoning and attitude. Your closing remarks – “Hey tho maybe this is different…maybe…maybe…” – conveyed your own attitude of cocky certainty.

I engage substantively with Colin when he writes heady posts about complex appellate issues. I appreciate his analyses (even if I don’t always agree with them), which is why I read this blog. I am not arguing against “unwarranted conspiracy theorizing”; I’m just making the point that he sometimes makes a mountain of a molehill, in a way that (A) unfairly accuses the State of doing something improper, and (B) is distracting from the real issues in the case.

Posted by: Sam | May 5, 2017 3:18:06 PM

@Sam --

You make good points -- not to say utterly clean my clock -- wrt commas and run-ons.

However, I still think that the sentence structure clearly suggests a less casual relationship between those two clauses than that they both happen to be about the same presumption. To my ear and eye, the rhetorical signal generally sent by its use is that what's being said is effectively one thing, not two -- eg, "I went to the store, but I forgot to get coffee," .

So I respectfully dissent from the idea that Judge Welch's failure to apply the presumption and Syed's to acknowledge it might just as well be joined together purely by the relationship of each to their mutual friend, the presumption of reasonableness as any other thing. That's really two thoughts on one hinge, not one thought with two component parts.

You're absolutely right that it's not out of the question. But it would really be a stylistically unconventional and virtually pointless choice. And I think Thiru's a much better and more thoughtful technician that that, as a writer. He writes for effect, possibly to a fault.

But that's not really a criticism, I should hasten to add. It's just an observation. .

Posted by: pluscachange | May 6, 2017 12:43:26 AM

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