COSA's Finding of Prejudice in the Adnan Syed Case and Actual Innocence

In its opinion affirming Judge Welch's order granting Adnan Syed a new trial, the Court of Special Appeals of Maryland was able to find prejudice, i.e., that Cristina Gutierrez's failure to contact Asia McClain undermines our confidence in the jury's verdict. Specifically, the court held that

With little forensic evidence, the case was largely dependent on witness testimony of events before and after Hae’s death. Testimony of these witnesses often conflicted with the State’s corroborating evidence, i.e., the cell phone records and the cell tower location testimony by its expert, Waranowitz. The State’s key witness, Wilds, also was problematic; something the State readily admitted during its opening statement. Wilds had given three different statements to police about the events surrounding Hae’s death.

The State’s case was weakest when it came to the time it theorized that Syed killed Hae. As the post-conviction court highlighted in its opinion, Wilds’s own testimony conflicted with the State’s timeline of the murder. Moreover, there was no video surveillance outside the Best Buy parking lot placing Hae and Syed together at the Best Buy parking lot during the afternoon of the murder; no eyewitness testimony placing Syed and Hae together leaving school or at the Best Buy parking lot; no eyewitness testimony, video surveillance, or confession of the actual murder; no forensic evidence linking Syed to the act of strangling Hae or putting Hae’s body in the trunk of her car; and no records from the Best Buy payphone documenting a phone call to Syed’s cell phone. In short, at trial the State adduced no direct evidence of the exact time that Hae was killed, the location where she was killed, the acts of the killer immediately before and after Hae was strangled, and of course, the identity of the person who killed Hae.

Many will correctly observe that this language is not a finding of actual innocence. On the other hand, this language is still pretty important. It means that the court was able to find that the case against Adnan was weak...so weak that one error by trial counsel was enough, in and of itself, to undermine our confidence in the jury's verdict.

How rare is such a finding? Well, let's look at cases in which defendants were indeed declared actually innocent.

In his article, Judging Innocence, 108 Colum. L. Rev. 55, 107 (2008), Brandon Garrett studied the cases of the first 200 individuals later exonerated through post-conviction DNA testing. In a subsequent piece, Innocence Protection in the Appellate Process, 93 Marq. L. Rev. 591 (2009), Keith Findlay observed that

Of the thirty-eight postconviction DNA exonerees who claimed ineffective assistance of counsel, only four, or less than 11% of those who *601 made such a claim, were granted relief on this ground; more than 89% of these claims were rejected....

Garrett's data confirm that doctrine imposes such a high burden that most defendants--even actually innocent defendants--cannot meet the burden. My own review of the data underlying Garrett's article, for example, reveals that 89% of the decisions rejecting ineffective assistance of counsel claims were based at least in part upon a finding that the defendant could not prove prejudice.[FN70]

[FN70] This figure is drawn from my own analysis of the cases in Professor Garrett's dataset. In many of the cases included in this total, the courts did not specifically distinguish between the deficient performance and prejudice prongs of the ineffective assistance of counsel test established in Strickland....But, they all analyzed the case in terms of assessing whether the errors alleged might have made any difference-i.e., whether there was prejudice.

In other words, in the vast majority of cases in which defendants later exonerated through DNA testing had previously brought ineffective assistance of counsel claims, they were unable to satisfy the prejudice prong of Strickland. So, the courts in those cases were able to conclude that the evidence against these (innocent) defendants was so strong that even errors by trial counsel wouldn't have made a difference at their trials.

-CM