EvidenceProf Blog

Supreme Court of Utah Finds Mother at Home w/Newborn on Oxygen & a Heart Monitor Wasn't "Unavailable" for Hearsay Purposes

Like its federal counterpart, Utah Rule of Evidence 804(b)(1) allows for the admission of "former testimony" by an unavailable declarant, including a declarant who "cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness."* Clearly a declarant is "unavailable" if she is deceased. Meanwhile, if a declarant has an illness, we have to compare the severity and duration of the illness with the likely duration of the trial (and the the possibility of a continuance). 

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Seventh Circuit Finds That Failure to Disclose Inadmissible Recording of Loan Officer Was a Brady Violation

Pursuant to Brady v. Maryland, the State has an affirmative obligation under the Due Process Clause to timely disclose material exculpatory evidence to the defendant. Since the Supreme Court's opinion in Wood v. Bartholomew, a circuit split has developed over whether the failure to disclose inadmissible evidence can ever be the basis for a Brady violation. In my first law review article, I argued that inadmissible evidence can be material for Brady purposes because, inter alia, inadmissible evidence can still sometimes be used at trial, e.g., to impeach a witness. In its recent opinion in United States v. Ballard, 885 F.3d 500 (7th Cir. 2018), the Seventh Circuit reached the same conclusion.

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Evidence of State Misconduct in the Adnan Syed Case

We currently have two judicial findings that Adnan Syed's trial counsel rendered ineffective assistance: (1) Judge Welch's ruling* that she was ineffective based upon failure to use the AT&T disclaimer to cross-examine the State's cell tower expert; and (2) the Court of Special Appeals's ruling that she was ineffective based on failure to contact prospective alibi witness Asia McClain. In response to these rulings, some have claimed that, while there is evidence that defense counsel was ineffective, there is no evidence of State misconduct connected to Adnan's trials.** 

This point, however, is simply not true. In this post, I will point to the clearest evidence of State misconduct in the case.

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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.

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An Important COSA Opinion That Might Mean Adnan Syed's Cell Tower Claim Wasn't Waived

In their opinion affirming Judge Welch's order granting a new trial to Adnan Syed, all three judges of the Court of Special Appeals found that Adnan had waived his claim that Cristina Gutierrez was ineffective based upon failing to cross-examine the State's cell tower expert with the AT&T disclaimer. In doing so, the judges recognized that there was no Maryland case law directly on point. That said, the Court did cite Wyche v. State, 53 Md.App. 403 (Md.App. 1983), in which the Court of Special Appeals held in dicta that

If an allegation concerning a fundamental right has been made and considered at a prior proceeding, a petitioner may not again raise that same allegation in a subsequent post conviction petition by assigning new reasons as to why the right had been violated, unless the court finds that those new reasons could not have been presented in the prior proceeding.

The Court of Special Appeals then noted that Adnan had raised ineffective assistance of counsel claims at his first PCR proceeding (e.g., based on trial counsel's failure to contact an alibi witness), meaning that he could not use the reopened PCR proceeding to a assign a new reason why his right to the effective assistance of counsel had been violated (based on failure to use the AT&T disclaimer).

As it turns out, there is actually a Court of Special Appeals of Maryland opinion that directly supports the conclusion that Adnan has not waived his cell tower claim. The opinion is not precedential, but the same can be said about the dicta in Wyche v. State. And, factually speaking, the case is nearly identical to the Adnan Syed case.

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Does Judge Graeff's Test in Her Adnan Syed Dissent Ever Allow a Defendant to Prove IAC Against a Deceased Attorney?

In her dissenting opinion in the Adnan Syed case, Judge Graeff notes the following:

Here,...there was no testimony by trial counsel regarding why she did not contact Ms. McClain. Although this was because counsel was deceased at the time the post-conviction hearing occurred, this did not relieve Syed of his duty to satisfy the Strickland test....

The absence of testimony by trial counsel makes it difficult for Syed to meet his burden of showing deficient performance. As the court stated in Broadnax..., it is “extremely difficult” for a petitioner "to prove a claim of ineffective assistance of counsel without questioning counsel about the specific claim, especially when the claim is based on specific actions, or inactions, of counsel that occurred outside the record." Similarly, in Williams v. Head,...the court stated that, "where the record is incomplete or unclear about [counsel’s] actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment," noting that the "district court correctly refused to 'turn that presumption on its head by giving Williams the benefit of the doubt when it is unclear what [counsel] did or did not do.'"...

To be sure, there could be circumstances where the record is sufficient for the defendant to overcome the presumption that counsel acted reasonably, without questioning trial counsel. This case, however, does not present such circumstances. Syed has pointed to no evidence in the record indicating that trial counsel’s decision not to interview Ms. McClain was based on anything other than reasonable trial strategy, relying instead on his blanket assertion that it is unreasonable in every case for trial counsel to fail to contact a potential alibi witness identified by the defense.

Although possible reasons for counsel's decision have been discussed, we do not know if these were the reasons that counsel decided not to contact Ms. McClain (emphasis added).

As noted, Judge Graeff concluded that "there could be circumstances where the record is sufficient for the defendant to overcome the presumption that counsel acted reasonably, without questioning trial counsel." My question in this post is: What would those circumstances be? 

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