EvidenceProf Blog

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

Thursday, April 11, 2019

Breaking Down the Innocence Network/MacArthur Justice Center Amici Curiae Brief in the Adnan Syed Case

In Tuesday's post, I noted that three amici curiae ("friends of the court") briefs were filed in support of the Motion for Reconsideration in the Adnan Syed case. In this post, I will summarize the argument made in the amici curiae brief submitted by The Innocence Network and the MacArthur Justice Center.

The "Moving Target" Argument

One of the two main arguments advanced in this brief is the "moving target" argument. According to the brief,

Here, the majority opinion evaluated the effect of the alibi evidence not on the prosecution’s actual presentation at trial but rather on hypothetical prosecution theories that the State had never espoused at trial. Indeed, the ruling that prejudice did not exist here rests on the conclusion that the testimony of the alibi witness might not have been important if a juror rejected the State’s entire theory of when Mr. Syed killed Ms. Lee....The prosecution’s theory of the case was that Mr. Syed murdered Ms. Lee sometime between 2:15pm and 2:36pm....The opinion posits an alternative theory: that Mr. Syed killed Ms. Lee after 2.40pm....But the prosecution did not pursue any such theory at trial.

The brief then argues that

Such an approach, taken to its logical conclusion, would make the prejudice prong nearly impossible to establish, because only evidence the absence of which would be prejudicial under every possible hypothetical theory of a case could be the basis for a successful claim. Practically speaking, having to demonstrate that omitted evidence would be prejudicial under every possible theory of guilt that can be dreamed up after the fact is tantamount to requiring a defendant to show that the evidence is so conclusive that it is more likely than not to result in an acquittal—a standard that Strickland expressly rejected.

This seems right to me. Ostensibly, the State presents its strongest theory of the case at trial. If an uncontacted alibi witness would have contradicted that theory of the case, that seems like it should be enough for a new trial. A defendant establishes the prejudice prong of the ineffective assistance of counsel claim by proving that his trial counsel's error undermines our confidence in the jury's verdict.

In Adnan's case, the jury ostensibly believed the State's theory of the case. If Asia McClain had contradicted that theory of the case with her alibi, is it possible the jury would have rejected the State's theory of the case but still have found that Adnan killed Hae after 2:40pm? I think that's possible, but how can we have any confidence in that result? The answer would seem to be that we can't which is why there should be a new trial.

But let's say the Court of Appeals majority doesn't want to go that far. Let's say that it's okay with the "moving target" argument. Why should it still grant the Motion for Reconsideration? The possibility of Adnan killing Hae after 2:40pm wasn't addressed in the briefs or the oral arguments before the Court of Appeals. This, of course, makes sense because Judge Welch rejected this alternate timeline.

So, what effect would changing the timeline to the post-2:40pm timeline have on the rest of the State's case? Honestly, I know this case about as well as anyone, and I don't think that I could say at this moment every effect changing the timeline would have on the State's case; therefore, I doubt that the Court of Appeals does either. Given this, the Court of Appeals could/should ask the parties to brief this issue. The State could explain why shifting the timeline would be easy. The defense could respond by pointing out the complications caused by shifting the timeline. In the end, the Court could affirm or reverse its opinion.

Unintended Consequences

The amici brief also contends that there could be collateral consequences of the opinion in the Adnan Syed case:

-because the test for a Brady claim is effectively the same as the test for an ineffective assistance claim, the court's opinion could make it tougher to prove a Brady violation;

-as noted in yesterday's post, the court's opinion could make it more difficult for defendants to win federal claims under the Antiterrorism and Effective Death Penalty Act; and

-the court's opinion could make it more difficult for defendants in Maryland to bring successful petitions for writs of actual innocence.

This last point could be sneaky important. The brief cites to the case of George Seward, which I wrote about here. Seward brought a petition for writ of actual innocence based upon new alibi evidence showing that he was at work at the time of the crime. The State responded that Seward's employment records did not definitely establish that he was at work at the time of the crime. In a 7-0 opinion, the Court of Appeals sided with Seward. 

Notably, the standard for proving actual innocence (substantial or significant possibility of a different outcome) is higher than the standard for proving ineffective assistance (reasonable probability of a different outcome. Therefore, given that the Court of Appeals has now said that alibi evidence might not even be enough to meet the lower standard, that could make it really tough to meet the higher standard.

Is that what the Court of Appeals wants? I don't know. But two of the justices in the 4-3 majority in the Adnan Syed case ruled in favor of Seward: Justices Greene and McDonald. Could those be the two justices needed to grant the Motion for Reconsideration? We'll see.



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On the moving target argument... I thought there was a case that said courts should look at the closing argument of the prosecution in conducting a prejudice analysis. Any reason why neither Adnan’s brief nor any of the amici cited to that?

Posted by: Michael | Apr 12, 2019 8:10:18 AM

I've wondered about this also, but may already have been addressed elsewhere. As I remember, summation referred to reinforcing nature of cell phone calls and Jay's testimony, which may now be moot, but surely also referred to timing.

Posted by: Hal | Apr 12, 2019 9:27:50 AM

Thanks for the summaries! Could you put in context how important it is that three amici curiae briefs were filed? Is this common? Is it extraordinary? Is there any weight to who filed them? I don't have any perspective on whether this is a normal thing or not, or how to read the situation.

Thank you!

Posted by: JJ Conway | Apr 15, 2019 9:38:34 PM

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