EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, May 29, 2018

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. 

By way of review, 

-On June 30, 2o16, Judge Welch of the Baltimore City Circuit Court entered an order and opinion (1) granting Adnan a new trial on the ground that his trial counsel was ineffective based upon failure to use the AT&T disclaimer to cross-examine the State's cell tower expert; and (2) finding that Adnan was not entitled to a new trial based on his trial counsel failing to contact alibi witness Asia McClain;

-On March 29, 2018, the Court of Special Appeals entered an opinion affirming Judge Welch's order/opinion granting Adnan a new trial, finding that (1) Adnan was entitled to a new trial based on his trial counsel failing to contact alibi witness Asia McClain; but that (2) Adnan had waived his claim that his trial counsel was ineffective based upon failure to use the AT&T disclaimer to cross-examine the State's cell tower expert

-On May 14, 2018, the State filed a petition for writ of certiorari with the Court of Appeals of Maryland, i.e., Maryland's state supreme court.

The point of the State's a petition for writ of certiorari was to ask Maryland's highest court to hear its appeal. The Court of Appeals of Maryland doesn't have to hear the State's appeal. Indeed, the Court of Appeals rarely grants such petitions; in criminal cases, the court "grants cert" in 13% of cases, meaning that it doesn't "grant cert" in 87% of cases. That said, those numbers are nearly reversed in criminal cases in which there is a reported Court of Special Appeals opinion that includes a dissenting opinion.

There are seven current justices on the Court of Appeals of Maryland. If three of those justices agree to "grant cert," the Court of Appeals will hear the State's appeal. If two or fewer justices agree to "grant cert," cert is denied and the order granting Adnan a new trial will take effect...except in the extremely unlikely scenario that the United States Supreme Court agrees to hear the State's appeal.

This takes us to today's filing. In its Answer in Opposition to Petition for Writ of Certiorari with Conditional Cross-Petition, the defense is doing two things: (1) asking the justices of the Court of Appeals to "deny cert;" and (2) asking the justices to agree to hear its cell tower appeal in the event that the court agrees to hear the State's alibi appeal.

So, what goes into the decision over whether to grant cert? As the defense notes in its filing,

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." (emphasis added)

The defense addresses this issue head-on in Section II of its filing, arguing that the State's "question presented" to the Court of Appeals reveals that the State merely seeks to re-litigate the facts of the case, making its appeal lacking in "public importance." According to the defense's filing:

The State’s Question Presented itself reveals the fact-bound nature of the Petition. It asks: “[w]hether the Court of Special Appeals erred in holding that defense counsel pursuing an alibi strategy without speaking to one specific potential witness of uncertain significance violates the Sixth Amendment's guarantee of effective assistance of counsel.”...That question features two resolved factual issues that the State seeks to re-litigate. It describes the significance of McClain’s testimony as “uncertain[.]”...And it asserts that counsel presented an alibi strategy at trial independent of McClain. Neither of those is true.

The significance of McClain’s testimony is not “uncertain” in the least. Both the Circuit Court and the Court of Special Appeals concluded that, had she testified, McClain “would have directly contradicted the State’s theory of when Syed had the opportunity and did murder Hae.”...

As for counsel’s trial strategy: first, the question in this case was whether counsel’s investigation before trial was ineffective. As the Court of Special Appeals explained, that question is assessed separately from whether counsel’s strategy at trial was otherwise reasonable....In any event, the State’s assertion is false. As the Court of Special Appeals recognized, “in her opening statement and closing argument, trial counsel did not raise any alibi defense for Syed[,]” saying “nothing about Syed’s whereabouts” during the time of the murder....There is no need for a third layer of review of the State’s fact-specific contentions.

Similarly, the State makes no effort to identify an issue of broad import in the analysis of the prejudice prong. Instead, the State admits that its complaint is simply that the Court of Special Appeals supposedly weighed the evidence incorrectly by “plac[ing] undue emphasis on” the timing of the murder. Pet. 15. The State is asking for mere error correction, and no error exists; as one would expect in a murder trial, the State emphasized the time of the murder throughout, including in its opening and closing statements....

Based on the evidence before it, the Court of Special Appeals concluded that trial counsel’s failure prejudiced Syed’s defense....There is no need for discretionary review of this well-founded conclusion. See Skakel v. Comm’r of Correction, No. 19251, 2018 WL 2104577, at *26 (Conn. May 4, 2018) (identifying this case as one of many finding that counsel’s failure to “present the testimony of a credible, noncumulative, independent alibi witness” prejudiced the defense). (emphases added)

I think the two portions of the filing that I bolded are especially important. First, as I've noted before, the heart of the State's petition for writ of certiorari is that trial counsel could have reasonably decided to forego contacting Asia McClain in favor or an "alibi-by-routine" defense that she would have contradicted. As the defense notes in its filing, however, the Court of Special Appeals concluded that trial counsel presented no alibi defense for the time of the murder, i.e., the time when Asia McClain claims she saw Adnan Syed. Thus, the State is merely trying to re-litigate this factual conclusion rather than trying to litigate a legal issue that could impact other litigants in Maryland.

Second, as I noted in a post on May 17th, the Supreme Court of Connecticut in Skakel v. Commissioner of Correction, 2018 WL 2104577 (Ct. 2018), cited Adnan's case as one of several from across the country finding that the failure to contact an alibi witness was ineffective assistance of counsel. In today's filing, the defense seized upon the court's conclusion, contending that the Court of Special Appeals opinion is in line with precedent from across the country. If the Court of Appeals agrees, it will find that the State's appeal doesn't raise an issue of public importance and deny cert.

So, will the defense be successful and get the Court of Appeals to deny cert? The numbers suggest that there's a very good chance that the court will grant cert given Judge Graeff's dissenting opinion. But today's filing is forceful and suggests that there's a decent chance that this case might be the exception as opposed to the rule.



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Doesn't Asia back up a "alibi-by-routine" defense of school-library-track? Is the state still saying that library wasn't at the school?

Posted by: Bruce | May 29, 2018 5:48:20 PM

Bruce—that’s 100% correct and really gets to the whole layers-of-wrong making up the state’s case. Even it’s weak argument is entirely predicated on the library not being part of the schools campus, something which has clearly been established as an erroneous assertion.

And all of that is predicated on the assertion that Adnan at some point claimed that he never left campus to police. Again, he didn’t do that either! It’s like an onion with layer upon layer of wrong.

Posted by: Paul | May 29, 2018 7:44:18 PM

Is there a case where alibi by routine was the strategy used by defense, either dismissing alibi testimony or lacking alibis altogether, where it worked? Seems like a dumb strategy to go all in on, no matter how you spin it.

Posted by: Jeff | May 29, 2018 9:59:25 PM

Does it feel to anyone else that Judge Graeffs intention in filing her weak dissent was primarily to aid in achieving cert and giving another shot to the prosecution? It would seem as though cert should be based on her specific findings and the extent to which they specifically rise to "public interest"...?

Posted by: John bocum | May 30, 2018 10:28:25 AM

Doesn't Asia provide both alibi by routine (if original counsel did claim this on his behalf) and also alibi for Adnan during the specific time-frame when Hae was leaving school and thus the states alleged timeline for her murder, based on the first evidence that she was missing when she didn't arrive to pick up her cousin from nursery school at 3pm?

Posted by: kat | May 31, 2018 4:28:28 AM

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