Tuesday, April 9, 2019
In yesterday's post, I focused upon the fourth argument advanced in the Motion for Reconsideration to the Court of Appeals of Maryland in the Adnan Syed case. Today, there was some interesting news that has bearing upon the first argument made in that Motion: Three amici curiae ("friends of the court") briefs were filed in support of the Motion. In the next three posts, I will summarize the arguments made in these briefs.
There's a prescribed procedure for filing amici curiae briefs in conjunction with appeals. As Justin Brown notes, however, "the rule governing motions for reconsideration does not address whether amicus briefs can be considered at this stage."* Therefore, "each brief is accompanied by a motion asking the court for leave to file. The Court has not yet ruled on these motions." As a result, there's no guarantee that the Court of Appeals of Maryland will even consider these briefs.
The First Argument in the Defense's Motion for Reconsideration
The first argument in the defense Motion for Reconsideration is that the opinion of the Court of Appeals of Maryland cuts against a nationwide consensus that the failure to contact a credible, noncumulative, independent alibi is always prejudicial. As support for this claim, the Motion cites to the recent opinion of the Supreme Court of Connecticut in Skakel v. Commissioner of Correction, 2018 WL 2104577 (Ct. 2018), which I first wrote about here. In that opinion, Connecticut's highest court noted "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." The court then cited to a string of cases from across the country in support of this conclusion.
Given that the Court of Appeals of Maryland found that the failure to contact prospective alibi witness Asia McClain was not prejudicial, it's opinion cuts against this nationwide consensus. Therefore, the Motion asks the Court of Appeals to reconsider its decision to deviate from this nationwide consensis.
Brief of Amici Curiae Maryland Criminal Defense Attorneys’ Association, Maryland Office of the Public Defender, and Individual Criminal Defense Attorneys
In today's post I will focus on the amici curiae brief that comes out of Maryland, courtesy of Andrew V. Jezic, Erica J. Suter, Rachel Marblestone Kamins, and Steven M. Klepper. The first really interesting point that they make is that the Court of Appeals of Maryland should grant the Motion for Reconsideration simply based on the fact that it wasn't thoroughly briefed or discussed at oral arguments:
The public interest favors, at a minimum, supplemental briefing and reargument directed to the prejudice question. In Parris W., this Court ordered a new trial on direct appeal, even though the sufficiency of the State’s evidence was unchallenged. Here, not even Judge Graeff’s dissent disputed prejudice. The State’s brief devoted just five pages to prejudice, citing only Strickland itself. Syed’s response was proportional: a three-page argument that cited Parris W. and Skakel. The State’s reply cited no authority on prejudice. The Court asked few questions about the issue on which it divided four-to-three.
Indeed, it was this lack of attention to the prejudice issue that left me convinced that the Court of Appeals would NOT reverse on the prejudice issue.
The nice thing about this argument by amici is that it doesn't force the Court of Appeals to make admit they made a mistake. It just asks them to consider that very little attention was paid to this issue, meaning that additional briefing and/or arguments could help the court reaffirm or repudiate their landmark ruling.
The amici brief also explains why this is indeed a landmark ruling, noting that the most common paths for defendants to win postconviction relief being claims of ineffective assistance of counsel and Brady claims, with the tests for both claims having effectively the same prejudice/materiality inquiry.
Therefore, imagine a variation on the Shaurn Thomas case in which the State suppresses evidence that a defendant was in juvenile court at the same time that the State claimed he was committing a murder. Under the reasoning of the Court of Appeals in Adnan's case, a court should reject the defendant's Brady claim if the jury could have found that the murder occurred at a different time. Now, the Court of Appeals may be okay with this outcome, but it needs to recognize that this would be a ripple effect of its opinion in the Adnan Syed case.
According to the brief, the other thing the Court of Appeals needs to recognize is that its opinion in Adnan's case does not account for, or square with, its prior opinion in In re Parris W., which I wrote about here. Basically in In re Parris W., defense counsel subpoenaed prospective alibi witnesses to testify on the wrong day in an assault trial, with the Court of Appeals of Maryland finding this error prejudicial.
According to the amici curiae brief, the Court of Appeals in the Adnan Syed case failed to account for In re Parris W. in four ways:
1. The Court of Appeals of Maryland emphasized that Adnan did not challenge the sufficiency of the evidence against him without acknowledging that the defendant in In re Parris W. also didn't challenge the sufficiency of the evidence against him;
2. The Court of Appeals emphasized that Asia McClain only covered a limited time-frame without acknowledging that, in In re Parris W., "none of the three [impartial witnesses] could testify to Appellant’s whereabouts in the afternoon when the assault was committed;"
3. The Court of Appeals found that testimony by alibi witness Asia McClain would not have undermined the testimony by the State's key witness Jay Wilds without acknowledging that it had previously ruled in In re Parris W. that alibi testimony would have undermined the testimony of the victim, who identified the defendant as his assailant; and
4. The Court of Appeals gave undue weight to Judge Welch's legal finding of lack of prejudice on the alibi issue without acknowledging that it had previously ruled in In re Parris W. and other opinions that such a legal conclusion is subject to de novo/clean slate review.
This takes us back to the beginning of the brief, where the amici note that the Court of Appeals didn't even cite In re Parris W. in its prejudice analysis. The brief thus asks the Court to grant the Motion for Reconsideration to either distinguish Adnan's case from it or find that it actually does apply and supports a new trial for Adnan.
*Amici (friend) is the plural of amicus (friend).