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.

The Court of Special Appeals of Maryland found that trial counsel Cristina Gutierrez was ineffective based on failure to contact alibi witness Asia McClain. As the losing party in that court, the State has every incentive to claim that this ruling was as broad as possible and will impact litigants in hundreds of future cases, creating an issue of public importance. And, of course, this is exactly what the State claimed in its petition for writ of certiorari:

The Court of Special Appeals has introduced specific constitutional obligations with potentially far-reaching consequences that are unmoored from prevailing Sixth Amendment law. The new requirement implicates the scope of defense counsel’s Sixth Amendment obligations to investigate specific avenues that are different from, and potentially incompatible with, other potential defenses, threatening to dramatically broaden the work required by the Constitution of defense counsel and stripping them of the discretion and presumption of reasonableness with respect to which leads they pursue and which they forego. Sturdivant v. Maryland Dep't of Health & Mental Hygiene, 436 Md. 584, 589, 84 A.3d 83, 86 (2014) (certiorari was appropriately granted when the case raises a legal question of public importance).

Let's say, however, that the Court of Appeals of Maryland denies cert, meaning that the Court of Special Appeals opinion is the opinion of record. And let's say that five years from now, another defendant claims that his trial counsel was ineffective based upon failure to contact an alibi witness. You better believe that the State will claim that the Syed opinion is limited to its facts and can easily be distinguished from the case at hand.

Meanwhile, as the winning party in the Court of Special Appeals, the defense has every incentive to claim that the court's ruling was simply applying existing law to the specific facts of the case at hand, meaning that it does not involve an issue of public importance. And, of course, that's exactly what the defense did in its Answer in Opposition to Petition for Writ of Certiorari with Conditional Cross-Petition:

That holding as to Syed’s particular facts does not, as the State suggests, impose some sweeping burden on defense attorneys....Much less is the burden a new one. Counsel’s duty to investigate is triggered once a defendant provides the information necessary to identify a witness and “to suggest that the witness’s testimony could provide the defendant with an alibi.”...These conditions will depend on the specific circumstances of each case. Here, Syed triggered this duty when he gave trial counsel letters that offered multiple ways of contacting McClain and stated that McClain was with Syed when the murder supposedly occurred....

Nor did the Court of Special Appeals’ analysis end there. Upon finding that counsel had failed to contact McClain, it still asked “whether defense counsel’s failure was deficient performance under the objective standard of a reasonably competent attorney acting under prevailing norms.”...In this case, the court answered “yes,” finding that “neither a review of the record nor the State’s arguments provide a reasonable basis to justify such failure.”... That is quite true: Syed adduced expert testimony that, under the circumstances, “trial counsel’s performance ‘was well below the minimum required by Strickland[.]’”

Again, let's say that the Court of Appeals of Maryland denies cert, meaning that the Court of Special Appeals opinion is the opinion of record. And, again, let's say that five years from now, another defendant uses the same appellate counsel to claim that his trial counsel was ineffective based upon failure to contact an alibi witness.  You better believe that the defense will claim that the Syed opinion was broad and cannot be distinguished from the case at hand.

So, where does the truth lie? I'd say somewhere in between. On the one hand, I think that the Court of Special Appeals opinion is pretty broad: It's tough for me to imagine circumstances in which trial counsel is deemed effective despite failing to contact an alibi witness brought to her attention by the defendant. Put another way, it's tough to see (m)any plausible reason(s) that would explain trial counsel's failure to contact such an alibi witness.

On the other hand, I don't think that the Court of Special Appeals of Maryland broke any new ground. Many courts, including the Court of Appeals of Maryland, have cited Grooms v. Solem,  923 F.2d 88, 90 (8th Cir. 1991), which held that "[o]nce a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense." And then, there was the recent opinion of the Supreme Court of Connecticut in Skakel v. Commissioner of Correction, 2018 WL 2104577 (Ct. 2018), which included the Syed opinion in a string cite of cases from across the country reaching the same conclusion.

So...who knows? I could easily see the Court of Appeals granting or denying cert in this case. I think the opinion of the Court of Special Appeals in Syed was important but also one that didn't really break any new ground.

-CM