Monday, August 19, 2019
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.