EvidenceProf Blog

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

Friday, November 30, 2018

My Second Post on the Oral Arguments in the Adnan Syed Case

Yesterday, there were oral arguments in the Adnan Syed case in the Court of Appeals of Maryland (Maryland's highest court). The primary focus during those arguments was on the issue of whether Adnan received ineffective assistance of counsel based on his trial counsel's failure to contact prospective alibi witness Asia McClain. As I noted yesterday, there are two prongs that a defendant must prove to establish a claim of ineffective assistance of counsel: (1) trial counsel rendered deficient performance; and (2) this deficient performance was prejudicial, i.e, undermines confidence in the jury's verdict. Yesterday's post dealt with the prejudice prong. This post will start to deal with the deficient performance prong.

During oral arguments, the attorney for the State -- Thiru Vignarajah -- placed huge emphasis on a Supreme Court opinion to support his argument, but it wasn't Cullen v. Pinholster, the opinion I expected. Instead, it was Burt v. Titlow.



First, here is the reason I was surprised. In her dissenting opinion in support of the State, Court of Special Appeals Judge Kathryn Graeff placed heavy emphasis on Cullen v. Pinholster, and the State in turn placed Pinholster at the center of its briefs to the Court of Appeals. But it was Burt that took center stage at oral arguments.

Second, what are the facts of Burt? Vonlee Nicole Titlow and her aunt, Billie Rogers, allegedly "murdered Billie's husband Don by pouring vodka down his throat and smothering him with a pillow." Subsequently, Titlow and her first attorney, Richard Lustig, secured a plea deal pursuant to which she would plead guilty to manslaughter and receive a 7-15 year sentence in exchange for her testimony against Rogers

Subsequently, however, Titlow retained a new lawyer, Frederick Toca, and demanded a lower sentence under the plea bargain. When the prosecutor refused to agree to a lower sentence, Titlow withdrew her plea, stood trial, and was convicted.


Vonlee Nicole Titlow

Third, what was the claim of ineffective assistance of counsel in the case? Titlow claimed 

that Toca advised withdrawal of the guilty plea without taking time to learn more about the case, thereby failing to realize the strength of the State's evidence and providing ineffective assistance of counsel. Rejecting that claim, the Michigan Court of Appeals found that Toca acted reasonably in light of his client's protestations of innocence. That court found that [Titlow]'s decision to hire Toca was "set in motion" by [Titlow]'s "statement to a sheriff's deputy that [Titlowt] did not commit the offense."...Applying the standard set forth by our decision in Strickland, which requires that defense counsel satisfy "an objective standard of reasonableness,"...the Michigan Court of Appeals concluded that "[w]hen a defendant proclaims...innocence..., it is not objectively unreasonable to recommend that the defendant refrain from pleading guilty — no matter how 'good' the deal may appear."

Titlow subsequently appealed this state court ruling in federal court under the infamous Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).


Fourth, why was the State extensively citing this opinion during opening arguments? Here is the opening paragraph of the Supreme Court's opinion:

When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a "'doubly deferential'" standard of review that gives both the state court and the defense attorney the benefit of the doubt. Cullen v. Pinholster...In this case, the Sixth Circuit failed to apply that doubly deferential standard by refusing to credit a state court's reasonable factual finding and by assuming that counsel was ineffective where the record was silent. Because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)...and Strickland v. Washington...do not permit federal judges to so casually second-guess the decisions of their state-court colleagues or defense attorneys, the Sixth Circuit's decision must be reversed (emphasis added).

The State focused on the highlighted sentence from this paragraph, noting that the record in this case is similarly silent about whether trial counsel Cristina Gutierrez contacted prospective alibi witness Asia McClain. According to the State, then, the "silent record" in Adnan's case also means that he can't establish that he received the ineffective assistance of counsel.

But this first paragraph from Burt also reveals the fatal flaw with the State's reliance on both Burt and Cullen v. Pinholster. As you can see from the above quote, the Burt Court found that the "silent record" meant that Titlow couldn't satisfy the "doubly deferential" standard of review that applied to both the state court's ruling and defense attorney's actions. As support for this claim, the Court cited to its own prior opinion in Cullen v. Pinholster, which I previously discussed in this blog post.


Cullen v. Pinholster was another case in which a defendant asked a federal court to review a state court's rejection of a claim of ineffective assistance of counsel under the AEDPA. And, as in Burt, the Court denied the appeal by applying the "doubly deferential" standard. Notably, the United States Court of Appeals for the Ninth Circuit actually ruled in favor of the defendant, finding his case "materially indistinguishable" form two prior Supreme Court cases: Williams v. Taylor and Rompilla v. Beard. But the Cullen Court turned this argument aside, concluding that "this Court did not apply AEDPA deference to the question of prejudice in those cases; each of them lack the important 'doubly deferential' standard of Strickland and AEDPA." 

Simply put, this is HUGE. In Cullen, the Supreme Court recognized that there are two separate strands of ineffective assistance of counsel precedent: (1) standard ineffective assistance of counsel cases; and (2) AEDPA ineffective assistance of counsel cases involving the "doubly deferential" standard. This is HUGE because Adnan's case is NOT an AEDPA case. He is arguing in Maryland state court that he received the ineffective assistance of counsel; he is NOT arguing in federal court that the Maryland state courts improperly denied his claim of ineffective assistance of counsel. Therefore, Burt and Cullen should have little to no bearing on his case; indeed, the Cullen Court impliedly acknowledged that it might have granted the defendant relief if it were not an AEDPA case.

Fifth, there's an interesting interplay between Burt and Adnan's case that seemingly helps Adnan. Why did the Michigan Court of Appeals rule against Titlow? That court concluded that "[w]hen a defendant proclaims...innocence..., it is not objectively unreasonable to recommend that the defendant refrain from pleading guilty — no matter how 'good' the deal may appear." This is interesting because we have something similar in Adnan's case. You might recall that Adnan had three claims of ineffective assistance in this case, which related to trial counsel's (1) failure to contact Asia McClain; (2) failure to use the AT&T disclaimer to cross-examine the State's cell tower expert; AND (3) failure to ask about a plea deal.

In rejecting this third claim, the Court of Special Appeals of Maryland noted that Adnan has maintained his innocence all these years, which meant that it was not unreasonable for trial counsel to fail to ask about a plea deal. Is it a per se rule that counsel can never render ineffective assistance of counsel in connection with a plea deal when a client maintains his innocence? No, but that's the presumption, and the defendant in Burt wasn't able to overcome it based on the silent record.

This ties into the supposed dispute between the State and the defense in the Adnan Syed case, with the State claiming that the defense is arguing that failure to contact an alibi witness is per se unreasonable and the defense responding that it's not asking for a per se rule. I read the defense as making something like the converse of the Burt approach:* When a defendant informs trial counsel about a prospective alibi witness, the presumption is that trial counsel has a duty to contact that witness. This isn't an irrebuttable presumption, but it's the baseline presumption and it will stand in the absence of contrary evidence by the State. It will also stand in the face of a "silent record."


This takes us to the sixth and final point, which is that the defense argued rather convincingly in this case that this is not a "silent record" case. Instead, (1) Adnan has testified that he told his trial counsel about Asia McClain and asked her to contact Asia and check for security camera footage at the library; (2) we have defense notes indicating that trial counsel was made aware of Asia McClain, the general timeframe of her alibi, the existence of two other possible alibi witnesses, and the existence of possible security camera footage from the library; (3) we have a finding (accepted by the State during oral arguments) that trial counsel did not contact Asia McClain; (4) Adnan has testified that trial counsel told him that she looked into Asia McClain and the security cameras and that "nothing came of it;" and (5) Adnan has testified that, after Rabia gave him Asia's initial affidavit, he contacted trial counsel, who admitted that she neither contacted Asia McClain nor looked for the security camera footage.

Simply put, that's not a silent record. If you believe (1)-(6), you believe that trial counsel was told about Asia McClain, failed to contact her, told her client that nothing came of her alibi, and later admitted that she failed to contact her. Now, you might or might not believe some or all of (1)-(6), but that's a separate issue from the issue of whether the record is silent. It's not. And that's another reason why in Burt is irrelevant.


*I also think that this is the position advanced in the amici curiae (friend of the court) brief in this case written by Steven Klepper (@MdAppeal).


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Was Thiru’s insistence that the defense wanted a per de rule a blunder? With a per se rule, there would be no set of circumstances that could justify not contacting the witness. (Even in that case cited by Graeff, in which the defendant named his alleged co-consporator who had already pleaded guilty, a per se rule would mean it was deficient to not contact the witness.

That seemed like a relatively easy argument to rebut, as Stetson did when she argued that non contact was deficient based on the circumstances of the case.

Would Thiru have been better served to argue something else?

Posted by: Michael Byrnes | Nov 30, 2018 6:59:24 AM

If I am remembering correctly from my brief read of Titlow yesterday, another important factor to the Court was the timing. Counsel was hired essentially last minute, and the Court decided even without counsel having the full record, they had received a verbal understanding of the case from prior counsel and more importantly, Titlow already knew the strength of the case against her and had already been advised on it by other counsel. In Adnan’s case, the timing situation is completely different. CG had plenty of time to do independent investigation – she had further opportunity when a mistrial was declared and she knew the majority of the State’s case.
In oral arguments, Thiru slid in a reference to Adnan’s initial attorneys having investigated the library and that the tape would not have been available by the time CG investigated. I don’t think this makes his Titlow argument any better, for three reasons: 1) Adnan was apparently unaware of this, given his insistence CG check it out for herself; 2) CG did not have to rely only on the records from Adnan’s prior attorneys because she had plenty of time for independent investigation; 3) As Stetson pointed out, Asia identified herself and two other people as witnesses…the library tapes would have just been one extra thing and what was really at issue here was the failure to contact Asia – not whether or not they’d be able to still get every piece of helpful information that would have ever been available. Thiru’s argument also fails because the State has conceded Asia was never contacted – which, again, is the actual thing at issue here.

Posted by: Laura | Nov 30, 2018 7:36:24 AM

Thiru sounded like a broken record talking about the silent record.

Posted by: Jeff | Nov 30, 2018 8:49:06 AM

Stetson said the key facts over and over again:
Asia was prepared to offer two more witnesses and possibly tape to back up her story.
Asia was never contacted by anyone for defense.
CG knew what the prosecutors believed to be the time frame of the crime, and she knew that it coincided with Asia's memory of the afternoon.

If the justices failed to hear that simple, calm message repeated multiple times in the space of an hour, there's no hope in this world.

She had both the facts and the law on her side.

Posted by: Kate Willette | Nov 30, 2018 1:05:52 PM

Michael Byrnes: I think it was a blunder. Even if he’s right, the State could find that there’s no per se rule but that contact was required under the circumstances of this case. I think he should have spent more time arguing why contact wasn’t needed in this case.

Laura: Agreed. The defense has emphasized how long before trial Gutierrez knew about Asia and the fact that Gutierrez got a preview of the State’s case at trial #1.

Jeff: It was a huge point of emphasis for him.

Kate Willette: She did a great job.

Posted by: Colin Miller | Nov 30, 2018 6:26:59 PM

I think Thiru was really arguing for something more opposite to the defense position. Defense argues that there should be a rebuttable presumption that the witness should be contacted, meaning that record evidence can be used to justify non-contact. Thiru was sort of arguing the other side: rebuttable presumption that non-contact is justified, but record evidence could be used to make the case that non-contact was deficient.

Posted by: Michael | Nov 30, 2018 6:59:02 PM

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