We're Already Seeing the Impact of the Adnan Syed Opinion in Maryland

On March 8th, the Court of Appeals of Maryland issued an opinion denying Adnan Syed a new trial, finding that (1) he had waived his claim that trial counsel was ineffective based upon failure to use the AT&T disclaimer to cross-examine the State's cell tower expert; and (2) he had failed to prove the prejudice prong of his claim that trial counsel was ineffective based on failure to contact alibi witness Asia McClain. So now, almost three months later, how much of an impact is the court's opinion having in Maryland?

Hyman v. State, 2019 WL 2171147 (Md. 2019)

Gerald Hyman was convicted based upon his guilty plea to the crime of third degree sexual offense. In a first coram nobis petition, Hyman claimed that he received the ineffective assistance of counsel because trial counsel "did not prepare adequately for trial, did not afford him a meaningful opportunity to consult prior to pleading guilty, and coerced him to plead guilty." After this petition was denied, Hyman brought a second coram nobis petition, claiming that he received the ineffective assistance of counsel based on trial counsel's "failure to advise him of the length of his registration period."

Before the Adnan Syed opinion, this would have been a potentially viable claim. Now, after the Adnan Syed opinion...the Court of Appeals of Maryland held:

We...recognize that allegations of ineffective assistance of counsel and a plea that was not intelligent and knowing implicate fundamental constitutional rights and are subject to the Johnson v. Zerbst waiver standard....However, if a petitioner advances even a fundamental constitutional claim "but fail[s] to assert all grounds upon which that claim is made, [the petitioner has] waived any allegation upon which the ineffective assistance of counsel claim could have been made but was not." State v. Syed, 463 Md. 60, 104, 204 A.3d 139 (2019).

This is now the law of the land in Maryland. Expert Expect many more defendants to bring a first claim of ineffective assistance of counsel, later realize that they have a second claim of ineffective assistance of counsel, and hit the brick wall of State v. Syed. Undoubtedly, that opinion will likely mean that Maryland courts can dismiss many meritless successive claims of ineffective assistance of counsel. But it also means that they might be ignoring many winning ineffective assistance claims that could set innocent men and women free.

Faulkner v. State, 2019 WL 2371930 (Md.App. 2019) and Smith v. State, 2019 WL 2369903  (Md.App. 2019)

David Faulkner and Jonathan Smith were both convicted of the 1987 murder of Adeline Wilford and brought petitions for writ of actual innocence. In unpublished opinions by Judge Graeff* on June 3rd, the Court of Special Appeals denied both men relief. Both Faulkner and Smith claimed that the lower court had applied an improperly high burden of proof.

Judge Graeff disagreed, citing to State v. Syed in both cases. For instance, in Smith's case, she wrote:

We disagree, both on the legal proposition appellant sets forth and his reading of the court’s ruling. Initially, we disagree that a "'faint possibility of a different' outcome is sufficient to merit relief." As indicated, the Court of Appeals has construed the test, creating a "substantial or significant possibility that a result may have been different," as requiring that "[t]he likelihood of a different result be substantial, not just conceivable.'" Syed, 463 Md. at 87 (quoting Harrington, 562 U.S. at 112).

Now, this citation is correct. In Harrington v. Richter, the Supreme Court did indeed state that "[t]he likelihood of a different result must be substantial, not just conceivable." But it's important to note that this sentence came at the end of a paragraph that provided context:

In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently....Instead, Strickland asks whether it is “reasonably likely” the result would have been different....This does not require a  showing that counsel's actions “more likely than not altered the outcome,” but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters “only in the rarest case.”...The likelihood of a different result must be substantial, not just conceivable.

In other words, to prove the prejudice prong of the ineffective assistance of counsel test, the defendant must prove a substantial, and not just a conceivable, likelihood that reasonable performance by trial counsel would have changed the outcome at trial...BUT that likelihood can be less than 50%. Or, as the Harrington Court put it, "[t]his does not require a  showing that counsel's actions “more likely than not altered the outcome."

Notably, though, this is NOT how Judge Graeff put it in either the Faulkner case or the Smith case. And that leads to my big worry: that courts will focus on the substantial vs. conceivable quote from State v. Syed and fail to realize that the defendant's burden is below 50%. 

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*The one Court of Special Appeals judge who ruled against Adnan.

-CM