Wednesday, August 22, 2018
Yesterday, the State filed its Brief of Petitioner to the Court of Appeals of Maryland in the Adnan Syed case. That brief was accompanied by an Appendix of supporting documents. To prove a claim of ineffective assistance of counsel, the defendant must establish (1) deficient performance; and (2) prejudice, i.e., that adequate performance by trial counsel would have created the reasonable probability of a different outcome at trial. In this first post on the State's brief, I will focus on the State's arguments with regard to prejudice.
The State's prejudice analysis is about 5 pages long, from the middle of page 49 to the middle of page 54. Reading this portion of the State's brief gave me a sense of deja vu because it's essentially a cut and paste job from its brief to the Court of Special Appeals, with a sprinkling of citations to how that court ruled against it. Notably missing from either brief is a citation to any court opinion from any state or federal court anywhere in the United States ever finding that failure to contact an alibi witness was anything but prejudicial.
Also missing in both briefs is a citation to any court opinion finding deficient performance by trial counsel but lack of prejudice. I keep expecting the State to cite a case in which trial counsel did something rising to the level of deficient performance but the court was still able to find lack of prejudice. Such cases are numerous, even in cases in which the defendant is later exonerated through postconviction DNA testing.
Instead, the State does the same thing it did in its briefing before the Court of Special Appeals of Maryland: throw everything it has at the wall and see if it sticks. As its prior brief, the State puts its evidence into various categories -- Forensics, Corroboration, Accomplice Testimony, Motive, Preparation, and Deviation's in Syed's story -- and claims that it is "overwhelming." As I noted in a prior post, however, the State's presentation of this evidence is overblown, underwhelming, and often misleading.
In its opinion finding prejudice, the Court of Special Appeals reached the same conclusions as me, and the State acknowledges this rebuke by the lower court. But it contends that the COSA majority failed "to engage and ultimately misunderstands the collection of evidence relied upon by the Post-Conviction Court to find there was no prejudice." That's a pretty bold move. It's one thing to say that the State disagrees with the COSA majority's conclusion; it's another to assume that two esteemed judges of Maryland's highest court misunderstood the evidence. And, unfortunately for the State, it's a bold move not backed up by any case law in which any other court held that a similar collection of evidence against a defendant was "overwhelming" in the face of a new alibi witness or other new exculpatory evidence.
The way I see it, the State is throwing in the towel on the prejudice argument. They give it a perfunctory mention, cut and paste their rejected factual contentions, and then claim that the COSA majority misunderstood the facts without citation to any law to back them up. I would be shocked if the Court of Appeals reverses COSA's alibi ruling based upon finding lack of prejudice.