Monday, April 9, 2018
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.
The Jencks Act provides that, upon request, the prosecution must turn over prior statements by State's witnesses after those witnesses have testified on direct examination. While the Jencks Act is a federal Act, Maryland applies a similar rule based upon the 1979 opinion of the Court of Appeals of Maryland in Carr v. State, 397 A.2d 606 (Md. 1979). Indeed, in a case decided around the same time as Adnan's case, the Court of Appeals of Maryland granted a defendant a new trial by failing to comply with Jencks/Carr. See Robinson v. State, 730 A.2d 181 (Md. 1999).
Since this case is a re-trial much of the material requested had already been provided by way of discovery, Jencks or as part of evidence the State had a duty to disclose under Brady.
Clearly, then, the State had a duty to disclose all prior statements by witnesses for the prosecution. Two State's witnesses were Aisha and Debbie. Among other things, Aisha testified that she saw Adnan and Hae talking at the end of the school day on January 13, 1999. Debbie, meanwhile, testified to seeing Hae at about 3:00 P.M. on January 13, 1999, with Hae saying that was going to see her new boyfriend Don at the mall; however, when the defense questioned her about her statement to police on March 26th about seeing Adnan outside the guidance counselor's office at about 2:45 P.M. on January 13th, she testified that she didn't remember making such a statement.***
From these facts, it's clear that Debbie was an important witness, and that's without even getting into the fact that Debbie also told police on March 26th that another student had asked Hae for a ride after school on January 13th, with Hae responding that she didn't have time to give her a ride because she had to pick up her cousin. Meanwhile, according to Krista, Aisha told her on the night of January 13th that she overheard Hae telling Adnan after school that something came up and she couldn't give him a ride.
So, what else do we know about Debbie and Aisha Krista? They were both interviewed by Detectives MacGillivary and O'Shea on March 2, 1999, Aisha at 11:05 A.M. and Debbie at 1:30 P.M. These were recorded interviews, and those recordings were never turned over, nor were any transcripts or notes. And all that we have in the MPIA files are the cover sheets for the interviews and the Progress Report(s) noting that they took place.
This lack of evidence is a big part of the reason why this isn't a winning issue on appeal. In Robinson v. State, the defense was able to get the undisclosed statements after trial and establish that they were helpful to the defense. In Adnan's case, we have no idea what's on the missing recordings; all we know is that they should have been turned over pursuant to Jencks/Carr. So, there's clear evidence of State misconduct in connection with Aisha and Debbie, but simply no grounds for relief because the State has never turned over their statements.
*The Court of Special Appeals reversed this ruling on waiver grounds but did not disturb the merits of Judge Welch's conclusion.
**There is, of course, evidence of the prosecutor's misconduct in communicating with prospective alibi witness in the PCR context.
***This was at the second trial. At the first trial, Debbie testified that she remembered making this statement.