My Take on the State of Maryland's Brief in Opposition in the Adnan Syed Case

Today, the State of Maryland filed its Brief in Opposition to Adnan Syed's petition for writ of certiorari to the United States Supreme Court. The Brief in Opposition is 31 pages, but the dispute between the defense and the State is clear from two paragraphs in the State's brief:

Under the “majority approach” touted by Syed, a court’s prejudice inquiry should “take the State’s evidence of guilt as the jury heard it,” examine “the theory the State advanced at trial,” and “consider the difference between the case that was and the case that should have been.”...This is precisely what the Maryland Court of Appeals did here....

At no point did the Maryland Court of Appeals “reject[] the majority approach” to analyzing prejudice, as Syed contends....The “split” identified by Syed is instead implied from a single sentence in the opinion, which states that “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.”....Syed reads far too much into this single sentence, which represents neither a departure from Strickland nor the “majority approach” identified by Syed.

So, what's that dispute?

According to the defense,

-the Court of Appeals of Maryland was supposed to take "the theory of the State advanced at trial": that Hae Min Lee was killed at the Best Buy between 2:15 and 2:36pm;

-the Court of Appeals was then supposed to take the defense case that should have been: Asia McClain's claim that she saw Adnan at the Woodlawn Public Library between 2:20 and 2:40 pm; and then

-the Court of Appeals was supposed to consider the difference between the two.

That difference, of course, is that Adnan couldn't have been murdering Hae at the Best Buy between 2:15 and 2:36pm if he was at the Woodlawn Public Library between 2:20 and 2:40pm. Therefore, if Judge Welch found Asia credible, which he did, then the Court of Appeals should have found that the failure to contact Asia McClain was prejudicial and granted Adnan a new trial.

According to the State, the analysis is the same, except for the fact that, as the State notes, "the theory of the State advanced at trial involved post-murder events including evidence of "Mr. Syed’s motive and his transportation and burial of [Lee’s] body[.]" According to the State, the Court of Appeals of Maryland looked at the totality of the evidence the jury heard in finding no prejudice; therefore, "[b]ecause the court assessed—and ultimately discounted—the significance of McClain’s testimony by considering the 'totality of the evidence the jury heard,' its analysis was true to Strickland." 

I largely agree with the State in this analysis...BUT it misses the importance of not only the "one sentence" cited above but also the accompanying analysis. Evidence that Adnan may have transported and buried Hae's body is NOT evidence that Adnan killed Hae. This isn't just me speculating; it's what the Supreme Court itself held in Wearry v. Cain just three years ago. And the Court of Appeals of Maryland clearly realized this by adding its discussion of the jury possibly disbelieving the State's timeline and believing that Adnan could have killed Hae after 2:36pm. 

That's not considering the difference between the case that was and the case that should have been; it's considering the difference between the case that WASN'T and the case that should have been. It's considering the difference between the case that was and the case that should have been, realizing that the difference would have resulted in an exoneration (or at least a hung jury), and then deciding that the jury might have rejected the case that was an created its own case that wasn't presented by either side. That is exactly the type of speculation that the Supreme Court has rejected, and it's why the Supreme Court should (but probably won't) grant cert in this case.

-CM