The Importance of the Amici Curiae Brief to the Adnan Syed Appeal

The defense brief was not the only brief submitted to the Court of Appeals of Maryland in the Adnan Syed case last week. It was accompanied by an amici curiae (friend of the court) brief written by Steven Klepper (@MdAppeal) on behalf of the Maryland Criminal Defense Attorneys' Association, the Maryland Office of the Public Defender, and various criminal defense attorneys from Maryland who were working in 1999-2000 (including Cristina Gutierrez's old colleague Billy Murphy). Other attorneys on the brief are Erica J. Suter (@SuterLaw), who we've had on Undisclosed, and Rachel Marblestone Kamins (@RachelKamins), whom I've worked with on the Richard Nicolas case.

At first blush, you might write off this brief as criminal defense attorneys supporting a criminal defendant, but the opposite seems to be the case when you think about it for a minute. 

Imagine that Judge Welch had granted Adnan a new trial on the ground that the State's misleading disclosure in connection with the AT&T disclaimer was a Brady violation. In that case, you could say, "Of course, a bunch of criminal defense attorneys are supporting Adnan. They know that a broad interpretation of Brady is going to help them in a bunch of future cases."

But, of course, that's not what happened here. Instead, Judge Welch found that it was ineffective assistance of counsel for defense counsel to fail to use the AT&T disclaimer to cross-examine the State's cell tower expert, and the Court of Special Appeals subsequently found that it was ineffective assistance of counsel to fail to contact alibi witness Asia McClain. The amici brief focuses on this second finding and is asking for a broad interpretation of defense counsel's duties under Strickland v. Washington. In other words, the defense counsel on the brief are advocating for a position that could lead to them being found ineffective in future cases while a narrower interpretation would have produced the opposite result.

ABA Standards for Criminal Justice 4-4.1(a)

The brief begins by citing ABA Standards for Criminal Justice 4-4.1(a), which sets forth defense counsel's duty to investigate

Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to defense counsel of facts constituting guilt or the accused's stated desire to plead guilty.

Applying this standard, the brief concludes that

An attorney's failure to contact a potential alibi witness, identified by the client five months before trial, is antithetical to the ABA Standards. Thus, there are only two possible explanations: it was either an oversight or an objectively unreasonable decision.

Finally, the brief questions the idolatry of Cristina Gutierrez by the State in this case, noting the State previously argued in Merzbacher v. Shearin that it was "appropriate for a state post-conviction court to take judicial notice of the fact that Gutierrez 'consented to disbarment and the Client Securities Trust Fund asserted claims of $325,000 in fees that Ms. Gutierrez accepted from clients and gave no service to in return.'"

Few Errors Are More Prejudicial Than the Failure to Contact a Non-Family Alibi Witness Identified by the Defendant

The brief then does a fairly compelling precedential analysis of the case law surrounding failure to contact an alibi witness. First, the brief notes what Klepper a I have previously noted: 

A Westlaw search for the phrase "alibi by routine" returns zero results; the State appears to have coined the phrase for this case. An alibi refers to evidence that a defendant was so far from the crime scene that it would have been impossible for him to commit the crime. Schmitt v. State, 140 Md. App. 1, 32 (2001) (Moylan, J.). Syed's routine was at most an explanation for where he could have been between 2:15 and 7:30. That evidence, if believed, did not make it impossible for Syed to have been at Best Buy if he had (as the State argued) deviated from his routine to commit a premeditated murder. Because the State's "Question Presented" depends in large part on the faulty premise that an "alibi by routine" is an alibi, one potential resolution of this case would be to dismiss certiorari.

Now, I don't think that the Court of Appeals will actually dismiss certiorari (i.e., change its mind about hearing the State's appeal), but, given that the State has hung its hopes on a non-exist, oxymoron of a concept, it is an option that's on the table.

The brief also cites to both the Court of Appeals' own prior opinion in In re Parris W. and the Supreme Court of Connecticut's recent opinion in Skakel v. Comm'r of Correction (which cited COSA's opinion in Adnan's case) as collecting cases concluding that the failure to contact an alibi witness is deficient performance.

But the heart of the brief is focused on the prejudice prong of the ineffective assistance of counsel test. This is where amici briefs can be so important. The State's brief barely mentioned prejudice; as the amici brief notes, the State only cited the Supreme Court's generic Strickland v. Washington opinion on the prejudice issue and cited no cases in the alibi context. And this means that defense counsel also chose not to spill a lot of ink on the issue. That seems like a wise choice, but it also means that the Court of Appeals wouldn't have had a lot of law in terms of prejudice.

The amici brief fills that gap with some really good case law and analysis. First, the brief highlights the Skakel court's finding that "our research has not revealed a single case ... in which the failure to present the testimony of a credible, noncumulative, independent alibi witness was determined not to have prejudiced a petitioner under Strickland's second prong." 

Second, the brief notes how similar Adnan's case is to In re Parris W. in terms of prejudice. In both cases, the defendants were students, defense counsel presented a familial (father) alibi,* and defense counsel failed to properly contact a non-familial alibi witness. As the brief notes, the very same court that is hearing the current appeal easily concluded that there was prejudice in In re Parris W. on direct review. This then leads to the conclusion that the same analysis should apply in Adnan's case.

Finally, the brief relies on esteemed jurist Learned Hand to refute the State's claim that there was overwhelming evidence of guilt in this case. The brief cites to a 1946 opinion by Judge Charles Clark and Learned Hand in which they concluded that "surely, the evidence of guilt is not 'overwhelming' where ... not only is the testimony in sharp conflict, but the 11 government's case depends in considerable part on testimony of accomplices."  The brief then details how the State's case against Adnan depended considerably on testimony by accessory after the fact Jay Wilds, whose own testimony was in sharp conflict.

I already thought that the defense had a strong case for the Court of Special Appeals, and this amici brief only makes it stronger.

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*The brief notes how there's no factual support for the State's claim that trial counsel presented an "alibi by routine" for Adnan.

-CM