EvidenceProf Blog

Cert Petitions and Finding Where the Truth Lies in the Adnan Syed Appeal

Petitions for writs of certiorari can be funny things. As I noted in yesterday's post,

Certiorari is reserved for issues of "public importance[.]"...Certiorari is generally denied where the "questions presented, the analysis, and the outcome are wholly unremarkable and of interest solely to the litigants." 

What this means is that you will often see litigants taking positions in cert petitions (and answers) that are diametrically opposed to the positions that they will take in later cases. We can see a good example of this in the Adnan Syed case.

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A First Take on Today's Filing in the Adnan Syed Case

Today, Justin Brown filed the defense's Answer in Opposition to Petition for Writ of Certiorari with Conditional Cross-Petition in the Adnan Syed case. This first post on this filing will explain what it means and discuss one of its key points. 

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Why the State's "Alibi-by-Routine" Claim in the Adnan Syed Case is an Oxymoron and Why it Matters

Evidence has been introduced that the defendant was not there when the crime was committed. You should consider this evidence along with all other evidence in this case. Thus, in order to convict the defendant, the State must prove, beyond a reasonable doubt, that the crime was committed and the defendant committed it.As I noted in a prior post, in its petition for writ of certiorari in the Adnan Syed case, the State set up a false dichotomy: that Cristina Gutierrez had the choice to either (1) present an "alibi-by-routine" defense, whereby witnesses would claim that it was Adnan's routine to remain at school between the end of classes and the start of track practice; or (2) present Asia McClain as an alibi witness who would testify that she saw Adnan at the Woodlawn Public library between the end of classes and the start of track practice on January 13, 1999.

I labeled this false dichotomy because it was factually false; Gutierrez presented no witnesses who testified that it was Adnan's routine to remain at school between the end of classes and the start of track practice. Upon thinking about it further, though, this supposed dichotomy is also legally false because the phrase "alibi-by-routine" is an oxymoron. And this isn't just me being didactic; it has significance for the current appeal.

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The Importance of the Michael Skakel Case for the Adnan Syed Case

In a comment on yesterday's post, Jayne asked "Do you see similarities with the Michael Skakel case? Both involve failure to contact an alibi." Jayne is referring to the recent opinion of the Supreme Court of Connecticut in Skakel v. Commissioner of Correction, 2018 WL 2104577 (Ct. 2018). Having now looked at this case (which cites the Court of Special Appeals's opinion in the Adnan Syed case three times), I can now say that this is a very important opinion for Adnan's case.

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The One Case the State Can't Seem to Distinguish in its Cert Petition in the Adnan Syed Case

"Indeed, if counsel had taken the few steps necessary to identify and interview the Sears clerk, he may well have formed a more favorable view of his client's veracity." Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988).

This single sentence might be the key to the Court of Appeals of Maryland denying certiorari to the State or affirming the opinion of the Court of Special Appeals of Maryland in the Adnan Syed case. 

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The 2 Falsehoods at the Center of the State's Cert Petition in the Adnan Syed Case

I think there are two falsehoods at the center of the State's petition for writ of certiorari in the Adnan Syed case. These apparent falsehoods are significant because I think of them as necessary but not sufficient conditions for the State to win on appeal. So, what are these two likely falsehoods?

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A Primer on the State's Petition for Writ of Certiorari in the Adnan Syed Case

Yesterday, the State filed its Petition for Writ of Certiorari in the Adnan Syed case. In this first post on the Petition, I will break down what it means. 

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