EvidenceProf Blog

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

Saturday, December 1, 2018

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

This is my third post on Thursday's oral arguments in the Adnan Syed case. This post addresses something that the attorney for the State, Thiru Vignarajah, gave repeated attention in his oral arguments: whether the defendant was asking the judges to create a per se rule that failure to contact an alibi witness is always ineffective assistance of counsel. In this post, I will explain why I think this emphasis was misguided.


I certainly understand why Vignarajah chose in his initial argument to (1) argue that the defense was arguing for a per se rule; and (2) argue against such a per se rule. First, he had to argue against a per se rule because the State has acknowledged the factual finding that trial counsel failed to contact prospective alibi witness Asia McClain. Clearly, then, if the State did adopt a per se rule, it would automatically find that Adnan received the ineffective assistance of counsel. Second, by initially claiming that the defense was advocating for a per se rule, he could have been creating a trap for the defense. In other words, the defense might have been derailed from making stronger arguments by needing to spend minutes of their argument dealing with (and being asked questions about) a per se rule.

But this is clearly not what happened. During her initial argument, defense counsel Cate Stetson succinctly responded to a judge's question that the defense was not asking for a per se rule before moving on to explain why Gutierrez was ineffective in failing to contact Asia McClain under the specific circumstances of Adnan's case. This argument focused on these facts: (1) Gutierrez was made aware of Asia months before trial; (2) Asia provided her (local) phone number in a letter; (3) Asia identified two other potential alibi witnesses in her letter; and (4) Asia indicated the possible presence of security camera footage in her letter. According to Stetson, these circumstances clearly obligated Gutierrez to contact Asia. 


Defense counsel Cate Stetson

The only real thing that could have made Stetson's argument stronger was a citation to Foster v. Wolfenbarger, 687 F.3d 702 (6th Cir. 2012), which I cited in this post. Foster also involved an alibi witness writing a letter that indicated the presence of two other possible alibi witnesses, with trial counsel actually contacting the letter writer but still being found ineffective. Foster is an especially good analog her because the Sixth Circuit rejected the State's claim that the district court's opinion (which it was adopting) created a per se rule. According to the court,

[I]n reviewing the trial court transcript as a whole, it is apparent that the trial court was emphasizing the potential power of alibi testimony to the jury, and the corresponding impact of its absence, rather than stating a per se rule.

But nonetheless, Stetson made clear: We're not arguing for a per se rule.

This should have been the end of the matter. But then, while arguing with the time that he reserved, Vignarajah returned to his claim that the defense was arguing for a per se rule. Specifically, about 50 minutes into the oral arguments, he alleged that the defense argued for a per se rule in pages 20 and 28 of its brief to the Court of Appeals. 

I didn't see anything on page 28 to support this argument. Meanwhile on page 20, the defense argued, inter alia,

Screen Shot 2018-11-30 at 9.45.24 PM

This makes clear that the defense was NOT asking for a per se rule. Instead, they were claiming that a court can presume deficient performance based on trial counsel's failure to contact a known alibi witness BUT that the State can rebut this presumption based upon record evidence. The defense is simply claiming that no such evidence exists in this case.*

But all of this is kind of beside the point: Let's assume that the defense had argued for a per se rule in its brief. The court could reject this argument and still find that Gutierrez was ineffective based on the failure to contact Asia McClain under the specific circumstances of this case. Judges are not bound by the arguments made by the parties in the briefs, and, in any event, Cate Stetson fully explained to the judges the non-per se rule that she was advancing.**

The bottom line is that I think there's no chance that the Court of Appeals rules against the defense by finding that (1) they argued for a per se rule; and (2) there is no per se rule. And, if there's no chance of this happening, the State wasted a lot of time in oral arguments advocating a position that had no chance of winning.


*A good example of something like the defense's test can be seen in Commonwealth v. Williams, 418 A.2d 499 (Pa.Super. 1980), where the defendant told his attorney about a potential alibi witness; in rejecting a claim of ineffective assistance, the court held that "[d]espite diligent efforts, both before and during trial, counsel could not contact this witness."

**Indeed, Stetson added a nice rhetorical flourish by saying that the defense argued against the Court of Appeals even agreeing to hear this case because the defense is NOT asking for a new per se rule.



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I've been wondering whether Thiru was deliberately mischaracterizing the defense argument or whether he was using imprecise language. Did he mean, by "defense wants a per se rule", that "defense wants a rebuttable presumption favoring contact"? His argument was more tailored towards the latter point.

Posted by: Michael | Dec 1, 2018 5:27:54 AM

There is a constant smell of evasion and desperation in Thiru Vignarajah's awful lawyering. He is a discredit to our profession.

Posted by: John Otoshi | Dec 1, 2018 10:11:31 AM


Why do you think the state and the court completely ignored the issue of waiver/cell tower claim during oral arguments. In fact, it was only Stetson who sort of forced the issue by briefly mentioning the defense’s position, but there was no response from the state on this and no questions from the judges on this?

Posted by: Teeter | Dec 1, 2018 11:38:21 AM

Agree with John. Thiru is a disgrace. He is not seeking justice

Posted by: Linnette garber | Dec 2, 2018 7:34:21 AM

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