EvidenceProf Blog

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

Monday, August 19, 2019

Defense Team for Adnan Syed Files Petition for Writ of Certiorari w/United States Supreme Court

Today, the defense team in the Adnan Syed case filed a petition for writ of certiorari with the United States Supreme Court. In this post, I will break down what this means and what it argues.

The Certiorari Act of 1925

When exercising its appellate jurisdiction, the Court, with a few exceptions, does not have to hear a case. The Certiorari Act of 1925 gives the Court the discretion to decide whether or not to do so. In a petition for a writ of certiorari, a party asks the Court to review its case. The Supreme Court agrees to hear about 100-150 of the more than 7,000 cases that it is asked to review each year.

Adnan's petition for writ of certiorari is asking for Adnan's appeal to be one of those 100-150 appeals that the Supreme Court agrees to hear.

Will the State Respond?

According to the Supreme Court Rule 15,

A brief in opposition to the petition for a writ of certiorari may be filed by the respondent in any case, but is not mandatory except in a capital case, see Rule 14.1(a) or when ordered by the Court....

Any brief in opposition shall be filed within 30 days after the case is placed on the docket, unless the time is extended by the Court or a Justice, or by the Clerk under Rule 30.4.

Because Adnan's case is not a capital (death penalty) case, the state of Maryland does not have to file a brief in opposition to Adnan's petition for writ of certiorari. If the State does decide to file a brief, you can expect it within 30 days...unless they file for an extension, and extensions and readily granted (indeed, Adnan was granted an extension of his deadline to file his petition for writ of certiorari). If the State doesn't initially file a brief, the Supreme Court might later request that the State file a brief in opposition, which means that they think there might be an issue in the case that they want to address. A request for such a response increases the chance that the Supreme Court will "grant cert" and agree to hear the case, but it would still be a long shot.

What Happens Next?

After the State files a brief in opposition of waives its right to file a brief, the Supreme Court will distribute the case for a conference in the next few weeks. And then, within a few weeks, we should hear whether at least four Justices agreed to "grant cert" and hear the appeal or whether the Court denied cert and declined to hear the appeal. If the Court does grant cert, it will create a schedule for briefs and oral arguments.

What Does the Petition Argue?

You generally see three types of petitions for write of certiorari. Those that argue:

1. The ruling at issue is one of first impression, meaning that the Court should nip an issue in the bud (e.g., Congress recently passed a new law, and the ruling of a state supreme court is the first to address whether the statute violates the Equal Protection Clause;

2. The ruling at issue is part of a split among courts (e.g., courts in 20 states have found a Congressional statute violates Equal Protection, and the ruling by the state supreme court in this case makes Maryland the 12th state to find it does not violate Equal Protection).

3. The ruling at issue places a state on an island because the ruling by the state supreme court in this case is contrary to the conclusion reached by every other court that has addressed this issue.

Adnan's petition for writ of certiorari falls into category #3. To understand this, let's again break down the test from Strickland v. Washington for establishing ineffective assistance of counsel. The two prong test from Strickland requires the defendant to prove: (1) his trial counsel rendered deficient performance; and (2) this deficient performance led to prejudice, i.e., undermines our confidence in the jury's verdict.*

In its 4-3 opinion in Adnan's case earlier this year, the Court of Appeals of Maryland concluded that Cristina Gutierrez had rendered deficient performance by failing to contact prospective alibi witness Asia McClain. The Court of Appeals also didn't disturb three factual findings by Judge Martin Welch, who conducted Adnan's reopened PCR proceeding: 

-Asia McClain testified that she saw Adnan in the library next to their high school until about 2:40pm;

-The State argued at trial that Adnan had killed Hae Min Lee in the parking lot of a Best Buy that was about a mile from the library shortly before he made a 2:36pm phone call from a payphone at the Best Buy; and

-The evidence and testimony that the State presented made a later timeline for the murder impossible.

Nonetheless, the four judge majority of the Court of Appeals of Maryland found a lack of prejudice because "the jury could have disbelieved that Mr. Syed killed Ms. Lee by 2:36 p.m., as the State’s timeline suggested, yet still believed that Mr. Syed had the opportunity to kill Ms. Lee after 2:40 p.m." 

This leads directly to the "Question Presented" by Adnan's petition for writ of certiorari:

Whether a court evaluating prejudice under Strickland v. Washington, 466 U.S. 668 (1984), must take the State’s case as it was presented to the jury, as ten state and federal courts have held, or whether the court may instead hypothesize that the jury may have disbelieved the State’s case, as the Maryland Court of Appeals held below.

In other words, as noted above, this is a category #3 case. The Court of Appeals of Maryland found that (1) non-deficient performance would have involved calling/contacting Asia McClain; (2) McClain would have testified to seeing Adnan at the library until 2:40pm; (3) the State would have argued that Adnan killed Hae before 2:36pm; BUT (4) the jury could have rejected the State's timeline and found that Adnan killed Hae after 2:40pm, i.e., after Asia saw him at the library.

Meanwhile, the defense is arguing that courts should not be able to do the hypothesis under this fourth step. Instead, they should look at the pre-2:36pm time of death proffered by the State and the up-until-2:40pm alibi proffered by the McClain and conclude that there is prejudice.

And, as support for this claim, Adnan's team argues that their approach is the same approach (1) explicitly used by three federal circuit courts (4th, 6th, and 9th) and three state supreme courts (Connecticut, Idaho, and Vermont); and (2) implicitly used by four federal circuit courts (2nd, 3rd, 7th, and 10th). Conversely, no court has used the approach taken by the Court of Appeals of Maryland.

It's a compelling substantive argument, it and seems unlikely that the State could find a case in opposition; they certainly haven't cited any such case up to this point. But, at this stage, it isn't about the merits; it's about whether four Supreme Court justices find the case compelling enough to review. Again, it's a real long shot that the Supreme Court will agree to hear the case, but they did take an ineffective assistance of counsel case from Maryland just four years ago.


*Prejudice is alternatively defined as the belief that non-deficient performance would have created the reasonable probability of a different outcome at trial. 



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I agree it's a compelling and substantive argument. I wonder about side effects though. Seems like the State of Maryland would have been better off offering *less* evidence about time of death, which seems bizarre.

Posted by: Jonathan | Aug 19, 2019 12:07:16 PM

A few questions. . .
- how does the Supreme Court make such decisions? Is there a standard a case must meet or is it purely the individual justices' preference?
- Knock on wood the Supreme Court does NOT take the case, what are the next steps, if any?

Thank you!!

Posted by: Wing | Aug 19, 2019 1:18:55 PM

This is written in a way that nearly compels granting cert. Chief Justice Roberts, being ever mindful of the historical optics every decision his Court makes will produce, would vote for granting, along with our only remaining firewall against the Trump insanity and the Midwesterners that seem to be unable know reality if it slapped them - Kagen, Sotomayor, and Bader-Ginsburg. This is the sort of case that the realm of possibility does include either Gorsuch or Kavanaugh voting for granting cert too (both could happen). That leaves Thomas, who wants everyone who has ever drank straight out of the milk carton executed, as the sole no vote and probably the only full dissent. Colin, your pessimistic view, though well earned and august in its experiential basis, might be for naught on this one. The Supreme Court is mostly in the habit of righting wrong.

Posted by: Kevin Hansen | Aug 19, 2019 2:25:35 PM

Jonathan: It’s a risk/reward situation for the State. They can keep the timeline ambiguous, knowing it likely decreases the chances of a conviction. Or they can present a concrete timeline and increase the chance of a conviction…but increase the chances of reversal if there’s something that contradicts that timeline (an uncontacted alibi witness, undisclosed evidence, etc.).

Wing: It’s pretty much up to the preferences of each individual Justice. If the Court doesn’t grant cert, the likely next step is a claim of ineffective assistance of postconviction counsel or a federal habeas claim.

Kevin: The law is on Adnan’s side, but the stats aren’t.

Posted by: Colin Miller | Aug 19, 2019 3:56:15 PM

I like the write up, it's so very clear. Very compelling. The Skakel split I think really hits home how impactful and harmful coas ruling was.

Are there any factors here that give Adnan a better or worse chace of being granted cert?

Posted by: Robert | Aug 19, 2019 6:49:15 PM

What about the question of lucidity? Will that play into this cert?

Posted by: Lisa Dinsmore | Aug 19, 2019 9:18:03 PM

Isn't it a certainty that the defence counsel's failure to use the lividity findings proof of deficient performance? This seems to be an equally important oversight of Gutierrez's work, as is the alibi witness failings.

Posted by: Aulani Mulford | Aug 20, 2019 3:23:52 AM

Does the high profile nature of the case tend to help or hurt the chances of cert being granted? Or not really have much of an effect one way or another? I remember Thomas's dissent in the Curtis Flowers case had some grumbling about the amount of media attention the case had received.

Posted by: Nick | Aug 20, 2019 7:33:58 AM

Thank you for this analysis. The arguments in the writ were compelling, and I hope that the Court sees it the same way. Lets all keep our fingers crossed for Adnan and his team that the Court finds this issue as worthy of hearing as we do.

Posted by: Kat | Aug 20, 2019 8:29:32 PM

Thank you Colin for your eloquent explanations of the legalities of Adnan’s case for all of us. I’ve been wondering if the Maryland Court of Special Appeals has rendered a decision on the motion for reconsideration that was filed just after the HBO docuseries began airing? I can’t seem to find an answer to that question.

Posted by: Suzy | Aug 20, 2019 9:43:04 PM

I am all in favor of Mr Syed getting a new trial and I hope the SC will hear the case and decide in his favor.

That said, I am a bit sceptial they are going to prevail if the Court hears the case.

Ms Stetson proposes a very strict standard for Strickland, namely that the defense case without deficient performance must be compared with the prosecution case *exactly as argued*.

Now let's assume the following hypothetical:
(1) There is no "Come and get me" call from Best Buy at 2:36 (which is a key reason the state couldn't really provide any other timeline)
(2) Mr Wilds is a 100% credible witness (no lies, inconsistencies, changes in testimony etc.)
(3) The cell tower data is not ambiguous and places Mr Syed at the burial scene later that day

In other words, we turn the state's weak case into a very strong case.

Now let's also say we have a sloppy prosecutor who argued to the Jury that Ms Lee was definitely killed around 2:35 at Best Buy and offers no alternative timeline.

Now the alibi witness for 2:35 shows up --- that destroys the prosecutions case *exactly as argued* but any reasonable person would agree the prosecution still has a very sound case. Any reasonable jury would convict Mr Syed despite the alibi witness and assume exactly what the MD COAs found: She was likely killed later that day.

Although the alibi witness could disprove one element of the state's case, a reasonable juror would still find no reasonable doubt given the totality of the other evidence.

In that hypothetical case, would defendant still be prejudiced according to the standard proposed by Ms Stetson?

That all being said, I absolutely believe Mr Syed was prejudiced because we have the Best Buy call at 2:36 in which Mr Wilds asserts Mr Syed tells him the victim is dead already, and that testimony pinpoints the time of the murder for the prosecution. In Syed's case, the alibi witness wouldn't only provide an alibi, she would further impeach Mr Wilds as a witness who already has substantial credibility issues.

Posted by: Tom | Aug 29, 2019 7:54:50 AM

Is a death later that day even possible at all?

Prosecution closing argument, p. 54: "We know that she left immediately to pick up her young cousins who were just in elementary school. By 3:00, it was known to her family that she had not done this."

So she must have been dead by 3:00 pm, right?

Posted by: T. R. | Sep 3, 2019 9:34:22 AM

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