My First Take on the Oral Arguments in the Adnan Syed Case

Today, there were oral arguments in the Adnan Syed case in the Court of Appeals of Maryland (Maryland's highest court). If you weren't able to watch the oral arguments, a recording is now archived on the Court of Appeals website (Normal Quality; Higher Quality). This is my first take on those oral arguments.

Most of the oral arguments dealt with the issue of whether trial counsel Cristina Gutierrez was ineffective in failing to contact prospective alibi witness Asia McClain.* In order to establish a claim of ineffective assistance of counsel, a defendant must establish two elements derived from the Supreme Court's opinion in Strickland v. Washington: (1) trial counsel rendered deficient performance; and (2) this deficient performance was prejudicial, i.e, undermines confidence in the jury's verdict. 

As I noted in my post previewing the oral arguments, I believe that the case law supports the defense on both of these elements...but I believe that case law on the deficient performance prong is even more clearly in favor of the defense. Indeed, in rejecting Adnan's claim of ineffective assistance of counsel on the alibi issue, Judge Martin Welch found that he had proven the deficient performance prong but had not proven the prejudice prong.

Judge Martin Welch

And yet, in its briefs to the Court of Appeals of Maryland, the State has given the prejudice prong short shrift and focuses heavily on the deficient performance prong. This insouciance to the prejudice prong continued with today's oral arguments. The attorney for the State -- Thiru Vignarajah -- did not address the prejudice prong at all in his initial argument to the court.

This was then followed by the attorney for the defense -- Cate Stetson -- addressing a huge case that was decided after Judge Welch's initial opinion. I first noted this case in a blog post back in May. In Skakel v. Commissioner of Correction, 2018 WL 2104577 (Ct. 2018), the Supreme Court of Connecticut found that Michael Skakel** received the ineffective assistance of counsel based on his trial counsel's failure to contact a prospective alibi witness in his murder case. 

Cate Stetson

Stetson cited the key portion of the Skakel court's opinion:

Before addressing the nature and strength of the evidence adduced by the state at the petitioner’s criminal trial, it bears emphasis that our research has not revealed a single case, and the respondent has cited none, 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.

One of the (many) cases cited by the Skakel court was the Court of Special Appeals's opinion reversing Judge Welch and finding prejudice based on the failure to contact Asia McClain. So, Stetson's argument was pretty simple: The Court of Appeals should find prejudice based on failure to contact Asia McClain, just as every other court has found in a case involving failure to contact a prospective alibi witness.

Thiru Vignarajah then tried to rebut his argument when making an argument to the judges with the time had had reserved...but he misconstrued Stetson's argument. Vignarajah seemingly thought the Stetson was citing Skakel for the proposition that no court had ever rejected a claim of deficient performance based on failure to contact an alibi witness and even began to criticize the alleged research done by the Supreme Court of Connecticut. But this wasn't the point by Stetson or the Supreme Court of Connecticut. That court held that no court had ever rejected a claim of prejudice based on failure to contact an alibi witness, and this is the same claim that Stetson had made to the judges.

This means that Vignarajah didn't actually address the prejudice prong until literally the last minute of his argument. And it was apparent that he was racing in that last minute, resulting in a jumbled argument about Jay supposedly being an impartial witness and three witnesses putting Jay and Adnan together on the day that Hae disappeared. Thiru Vignarajah is usually a pretty eloquent guy, but, in this last minute...not so much.

On the other hand, Stetson was very eloquent when using the last few minutes she had reserved at the end. She cited what I have frequently said is the best factual analog for Adnan: Montgomery v. Petersen. This is the case in which trial counsel contacted 12 alibi witnesses but not a thirteenth (a Sears clerk)...and the defendant's alleged accomplice testified against him and was corroborated by three other witnesses.***

The defendant in Montgomery claimed he was buying a bike at Sears at the time of the crime(s).

It's pretty easy to see how this case helps Adnan on the prejudice prong. It had the same evidence against the defendant -- an alleged accomplice and three alleged corroborating witnesses -- and it had trial counsel not contacting a thirteenth alibi witness whereas Cristina Gutierrez didn't contact the sole alibi witness.

So, here's my initial takeaway: I still think that Adnan wins on the deficient performance prong of the ineffective assistance of counsel test, but I am 100% convinced that Adnan wins on the prejudice prong of the ineffective assistance of counsel test

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*Indeed, unless I missed it, I don't believe that the attorney for the State -- Thiru Vignarajah -- even mentioned the cell tower issue.

**A nephew of Ethel Skakel Kennedy, the widow of Senator Robert F. Kennedy.

***"Wayne Montgomery's testimony was corroborated by the testimony of his wife Mary Lou, Dale Montgomery, and Betty Simons."

-CM