EvidenceProf Blog

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

Tuesday, September 17, 2019

The National Association of Criminal Defense Lawyers Filed an Amicus Curiae Brief in the Adnan Syed Case

Today, the National Association of Criminal Defense Lawyers filed an amicus curiae brief to the United States Supreme Court on behalf of Adnan Syed. So, what does this mean?

Amicus Curiae Brief

Amicus curiae is Latin for "friend of the court." An amicus curiae brief is a brief that is not filed by a party to the case but instead by a "friend of the court" who might want to point out an issue not raised or emphasized by the parties. Amicus curiae briefs can be filed (1) at the cert stage, with the drafter trying to convince the Supreme Court to grant/deny cert (hear/not hear the appeal); or (2) at the merits stage, after the Supreme Court has granted cert (agreed to hear the appeal), with the drafter trying to convince the Supreme Court to affirm/reverse the lower court's ruling. According to at least one study,

early-bird amicus briefs “substantially increase” the likelihood that a case will make the court’s docket. The chief deputy clerk of the court has even said that amicus briefs are one of four explicit factors the court weighs in deciding whether to grant a case.

National Association of Criminal Defense Lawyers 

As the amicus curiae brief notes,

The National Association of Criminal Defense Lawyers (NACDL) is a nonprofit voluntary professional bar association that works on behalf of criminal defense attorneys to ensure justice and due process for those accused of crime or misconduct. NACDL was founded in 1958. It has a nationwide membership of many thousands of direct members, and up to 40,000 with affiliates. These members include private criminal defense lawyers, public defenders, military defense counsel, law professors, and judges. NACDL is the only nationwide professional bar association for public defenders and private criminal defense lawyers.

The Brief's Argument

By way of review, Adnan's petition for writ of certiorari presented the Supreme Court with the following question:

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.

The NACDL brief focuses on another way in which the opinion of the Court of Appeals of Maryland is an outlier, noting that

The Maryland Court of Appeals’ decision is the first and only to hold that trial counsel’s failure to investigate an unbiased and credible alibi witness is not prejudicial. Such an unforeseen decision will impact criminal defendants and, in particular, habeas petitioners, far beyond Maryland’s borders.

Specifically, the NACDL brief cites to the recent opinion of the Connecticut Supreme Court in Skakel v. Comm’r of Corr., 188 A.3d 1, 42 (Conn. 2018), which held that

[I]t bears emphasis 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. There are many cases, however, in which counsel’s failure to present the testimony of even a questionable or cumulative alibi witness was deemed prejudicial in view of the critical importance of an alibi defense.

Thus, according to the brief, "Maryland therefore stands alone, in stark contrast to how other courts have viewed prejudice under similar circumstances." 

And, according to the brief, this not only creates a roadblock to relief for future defendants in Maryland and other states, but also defendants in federal court. As the brief notes, a federal habeas claim under the Antiterrorism and Effective Death Penalty Act must establish a violation of clearly established federal law. Previously, this would allow for federal habeas claims based on failure to contact an alibi witness. But now, if the ruling in the Adnan Syed case stands, there might no longer be clearly established federal law that failure to contact an alibi witness violates the Sixth Amendment.


It is still a looooong shot for the Supreme Court to grant cert and agree to hear Adnan's appeal. But this (well written) brief does increase the chances, albeit incrementally. I wouldn't be surprised to see additional amicus briefs in this case, and each one would again incrementally increase the chances of a cert grant.



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Colin—is it possible for SCOTUS to determine that this case was wrongly decided by Maryland and reverse without granting cert?

Posted by: Melissa Carter | Sep 18, 2019 5:28:24 AM

Not a lawyer, but I thought granting cert... just meant that the court agreed to hear the case, not that in the end they agreed to reverse.

Again, to this lay person, I would think that an amicus c. from a national assoc. of defense lawyers would be pretty significant. And just guessing, but I can see that several of the 4 points used to help decide whether or not to hear the case may be addressed in the court filings already.

And yes, well written.

Posted by: Hal Porter | Sep 18, 2019 11:56:16 AM

Have you ever submitted an amicus brief to the supreme court?

Posted by: Robert | Sep 19, 2019 1:49:57 PM

Melissa: Yes, that's called a summary reversal.

Hal: Yes, granting cert just means they agree to hear the appeal.

Robert: Yes, I've submitted a handful, and I'm currently working on another one. For example, I submitted one on behalf of the petitioner in this case: https://www.supremecourt.gov/opinions/17pdf/16-1371_1bn2.pdf

Posted by: Colin Miller | Sep 19, 2019 5:38:04 PM

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