EvidenceProf Blog

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

Thursday, December 6, 2018

My Seventh Post on the Oral Arguments in the Adnan Syed Case: Why This is NOT a "Silent Record" Case

This is my seventh post on last Thursday's oral arguments in the Adnan Syed case. This one is on the argument by Thiru Vignarajah, the attorney for the State, that this is a "silent record" case.


The State's argument is fairly straightforward: (1) there is a baseline presumption that trial counsel acted in a reasonable and strategic manner; (2) there is no evidence in the record about why trial counsel Cristina Gutierrez did not contact prospective alibi witness Asia McClain; (3) this means we have a "silent record;" and (4) this silent record means that the defense can't rebut the presumption of reasonableness.

As was the case when Vignarajah claimed that Gutierrez could have opted for an "alibi by routine" defense instead of a traditional alibi defense, I decided to do some research. A Westlaw search of "silent record" /s "ineffective assistance" produced one prior result: Rich v. State, 148 A.3d 377 (Md.App. 2016). In Rich, the defendant claimed "that counsel had rendered ineffective assistance by failing to perfect an appeal or file a motion for modification of sentence after each of his three convictions." In rejecting this claim, the Court of Special Appeals held 

that Mr. Rich did not provide any evidence that he'd asked counsel to file a motion to modify his sentence after the 2001 and 2002 convictions, or an application for leave to appeal after all three convictions. He likewise fails to provide any evidence of these allegations on appeal, and we will not find that his counsel rendered ineffective assistance on a silent recordSee Matthews v. State, 161 Md.App. 248, 249, 868 A.2d 895 (2005) (concluding that a defendant is entitled to file a belated appeal or a belated motion for modification of sentence if he can show the court that he asked his attorney to take these actions but his attorney failed to do so).

A quick look at Matthews v. State reveals that this citation is accurate. In Matthews, the Court of Special Appeals held that "when a defendant in a criminal case asks his attorney to file a motion for modification of sentence, and the attorney fails to do so, the defendant is entitled to the post conviction remedy of being allowed to file a belated motion for modification of sentence, without the necessity of presenting any other evidence of prejudice."

So, what does this mean? It means that in the ineffective assistance context in Maryland, a "silent record" case is NOT a case in which the defendant fails to present evidence about WHY his attorney failed to do a certain act. Instead, a "silent record" case IS a case in which a defendant fails to present evidence that he ASKED his attorney to do something that the attorney then failed to do. Conversely, when a defendant does present evidence that he asked his attorney to do some important act and that his attorney failed to do that act, the defendant is entitled to relief.

So, what does this mean for Adnan's case? Well, (1) Adnan presented clear evidence that he asked the defense team to contact prospective alibi witness Asia McClain (the July 13th notes and Adnan's PCR testimony); and (2) the State itself admitted during oral arguments that there had been a conclusive finding that the defense team had not contacted Asia McClain.

Therefore, this should mean that (1) Adnan's case is NOT a "silent record" case; and (2) Adnan is entitled to relief.




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I was really surprised by this argument. Seems like they're trying to erect a total strawman (same with the other argument that it's a "per se" rule).

I wish one of the judges would have asked, "So if a solo attorney screws up and dies after trial, that person can never ever get 6th amendment relief?"

Twist ending: it was Thiru asking for the per se rule!

Posted by: Michael | Dec 7, 2018 9:58:27 AM

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