Ineffective Assistance of Counsel Part 3:

How much proof and other post conviction details

Most everyone has heard of the standard of proof in a criminal prosecution, “beyond a reasonable doubt.”  It is the highest standard of proof in our legal system.  It was the standard of proof that applied during Adnan Syed’s trial.  The State was tasked with persuading the jury that Mr. Syed was guilty, beyond a reasonable doubt and Mr. Syed was presumed innocent until the State satisfied its burden of proof.

Ineffective Assistance of Counsel Part 2:


So let’s talk about prejudice and post conviction.  Yesterday’s post discussed deficient performance, a serious mistake, the first prong of Strickland.  The second part of the test involves “prejudice,”  and we’re not talking about the kind meant by #Oscarssowhite.  What does the case law say?

Ineffective Assistance of Counsel:

Trial Strategy vs. Screw Up

I recently offered to try and answer questions on twitter regarding the post conviction proceedings in Adnan Syed’s case. I thought it might be helpful to answer some of the questions on my blog and provide some legal background.  I’m going to try and do this in multiple posts to make the information easier to digest and to keep you from glazing over.  As a caveat, I have not been present for the  multi-day hearing and I’m not totally informed on the evidence that has come out in court, but as most of you know- there is some fantastic coverage out there.  I’ve particularly enjoyed the coverage on the Frisky.

Brady Violations: A Quick Primer

     I’ll translate this into plain language in an update to this post, but here are the fundamentals of Brady: In Brady v. Maryland, the United States Supreme Court held that the state’s suppression of exculpatory evidence at trial violates the Due Process Clause of the Fourteenth Amendment. To prevail on a Brady claim, Petitioner must plead and prove that (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant, either as to guilt or punishment; and (3) evidence was material to the issue of guilt or punishment. Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); Campbell v. Reed, 594 F.2d 4 (4th Cir. 1979). Evidence is material if there is a reasonable probability – sufficient to undermine the confidence in the outcome – that had the evidence been disclosed, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667 (1985).

     The evidence suppressed must be favorable to the accused. Evidence favorable to the accused extends to impeachment evidence. Banks v. Dretke, 540 U.S. 668 (2004); Strickler v. Greene, 527 U.S. 263 (2000); Wilson v. State, 363 Md. 333 (2001).  A petitioner prevails on a claim of a Brady violation regardless of whether or not the prosecution knew of the evidence. Kyles v. Whitley, 514 U.S. 419, 432 (1995)(the prosecution has an “affirmative duty to disclose evidence favorable to the defendant”). The Brady rule applies to all members of the prosecution team, not just the actual prosecutors trying the case. United States v. Antone, 603 F.3d 566 (5th Cir. 1979)(for the purposes of Brady, no distinction is drawn between different agencies under the same government).

      In State v. Williams, the Maryland Court of Appeals held that Brady and Maryland Rule 4-263(g) extends beyond the individual prosecutor in a case and encompasses exculpatory or mitigating information known to any prosecutor in the office. 392 Md. 194 (2006). In Williams, the court held that an informant’s status as a confidential FBI informant in other cases constituted Brady information about which the State had a duty to disclose. Id. at 229.

     Moreover, where a witness falsely testifies that he is not a police informant, the State must correct the record. In Banks v. Dretke, where the State failed to correct perjured testimony by one of the prosecution’s key witnesses as to his status as a paid police informant, the United States Supreme Court held that the failure to correct the false testimony was a Brady violation. 540 U.S.668, 675-76 (2004).

     In Banks, the witness repeatedly denied that he was a paid police informant on cross-examination, and though the State knew of his informant status, it did not correct his testimony. Id. at 676, 678-80. In that case, during the State’s closing arguments, it emphasized the witness’s honesty. Id. at 681. The Court held that the witness’s informant status was favorable to the defense and material to the defendant’s guilt and punishment as impeaching evidence. Id. at 691, 700. Moreover, the Court held that Banks could prove prejudice because no other forensic evidence linked Banks to the crime; the witness’s testimony was relied upon by the State in its closing arguments; and, the withheld information could have made jurors distrust the witness’s testimony. Id. at 701-02.