Friday, July 7, 2017
Here was one of the more interesting (and amusing) exchanges that occurred during the recent oral arguments in the Adnan Syed case:
The answer to this question could very well answer the question of whether Adnan Syed will get a new trial.
Pursuant to Strickland v. Washington, a defendant is entitled to a new trial based upon ineffective assistance of counsel if he can establish (1) deficient performance; and (2) prejudice. A defendant establishes prejudice by establishing that non-deficient performance by his trial counsel would have created the reasonable probability of a different outcome at trial.
There are two key phrases in this test: "reasonable probability" and "different outcome."
With regard to the phrase "reasonable probability, the Court of Appeals of Maryland held in Williams v. State, 605 A.2d 103, 107 (Md. 1992), that "the prejudicial effect of counsel's deficient performance need not meet a preponderance of the evidence standard." In turn, "preponderance of the evidence" means "more likely than not," or greater than 50%.
Next, let's look at "different outcome." The exchange at oral arguments was based upon the following question: When a defendant has been convicted, is a "different outcome" an acquittal or a hung jury? Recently, the Fourth Circuit (the federal judicial circuit covering Maryland) issued its opinion in Hope v. Cartledge, 857 F.3d 518 (4th Cir. 2017).
Hope was a case out of South Carolina in which the defendant claimed ineffective assistance of counsel based upon trial counsel's failure to request an alibi defense instruction. In discussing the prejudice prong of the defendant's claim, the Fourth Circuit noted the following:
In jurisdictions such as South Carolina, where a jury must return a unanimous verdict to convict, the prejudice prong of Strickland is met where "there is a reasonable probability that at least one juror would have struck a different balance." Wiggins v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
Like South Carolina, Maryland requires a unanimous verdict to convict, so we have both the Supreme Court and the Fourth Circuit stating that the "one juror" standard applies. So, what does this mean in terms of the Adnan Syed case?
Let's assess this in terms of Adnan's alibi claim, which seems to be the claim that is more disputed on the prejudice prong. Based upon the above two definitions, in order to find prejudice, the Court of Special Appeals merely needs to find that there's a good, but less than 50%, chance that one out of the twelve jurors at Adnan's trial would have had reasonable doubt if Asia McClain had testified at trial.
In other words, the Court can find that it's more likely than not that Asia's testimony wouldn't have created reasonable doubt for any of the twelve jurors and that there's not even a good chance that eleven of the jurors would have been swayed. All the defense needs to establish is a good chance that 1/12 jurors would have been swayed, and that's enough for a new trial.