Post Conviction Relief Granted for Adnan Syed

The Key Takeaways From The Opinion

On June 30, 2016, the Circuit Court for Baltimore City granted relief in Adnan Syed v. State. You can read the Court’s 59 page Memorandum Opinion and Order at the end of this post.  I’m going to attempt to bottom line the key points in the Court’s opinion.

There were three issues before the Court:

  1.  Did Mr. Syed’s trial counsel render ineffective assistance in failing to contact Asia McClain as a potential alibi witness?
  2.  Did the State fail to turn over documents to defense as required by law?
  3.  Did trial counsel render ineffective assistance in failing to challenge the reliability of the State’s cell tower location evidence

The Court denied relief on the first two claims, but granted relief as to the third claim.  You only need to win on one issue to win a new trial.  Mr. Syed did not need to will on all of the claims in order to ultimately prevail.

Did Mr. Syed’s trial counsel render ineffective assistance in failing to contact Asia McClain as a potential alibi witness?

Improper Closing Argument [UPDATE]

State ordered to respond to the Application for Leave to Appeal the Denial of Post Conviction Relief

UPDATE: On November 7, 2016, the Court of Special Appeals GRANTED the Application for Leave to Appeal the Denial of Post Conviction Relief in my client’s case!  I am so thrilled to have the opportunity to continue to fight for my client.  The Court’s Order is below.  The granting of an Application for Leave to Appeal is rare.  According to C. Justin Brown, between 2010 and 2014 the Court of Special Appeals granted just 1.22% of all of the Applications filed.

Recently, the Court of Special Appeals ordered the State to respond to the Application for Leave to Appeal the Denial of Post Conviction Relief in one of my cases.  You can read more about ALA’s in general, here.   I’ve posted the Court’s order and my Application for Leave to Appeal below.  The Court’s order is the first step toward getting the ALA granted.  After the State responds, the Court could set the matter in for full briefing and oral argument, it could deny the ALA, or it could grant the ALA based on the pleadings alone.

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:

Prejudice

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.

The Danger of Loud and Wrong: a Public Service Announcement

    “Loud and wrong” is an expression of which I’m rather fond.  It applies when someone is equal parts incorrect and adamant that they are right.  Another way to describe this state of being is confident and uninformed or my personal favorite, “Strong with no money.”  Though I harbor a certain, peculiar admiration for the kind of person who is so completely without shame, self reflection, or concern that they could be making an utter fool of themselves, this behavior presents a genuine danger to clients and attorneys.

Motion to Reopen a Closed Post Conviction

     Under the current law in Maryland you are entitled to only one post conviction petition and one hearing on that petition.  If you have lost your post conviction petition and your Application for Leave to Appeal from the denial of your post conviction, you next option may be to file a Motion to Reopen a closed post conviction.  A Motion to Reopen is filed in the circuit court.  Oftentimes, it goes back to the judge who denied the post conviction petition.  In some counties, there is a single judge who reviews all Motions to Reopen and decides whether it will be denied or be assigned to a judge to consider the merits.  The applicable standard in determining whether to reopen a closed post conviction is “in the interests of justice.”  In other words, the court must ask, is it in the interests of justice to give this person another chance to argue that something went wrong with the trial or guilty plea.  This standard is a broad, ill-defined standard, but one recognized basis is ineffective assistance of post conviction counsel.

Recent Cases from the Maryland Court of Appeals and Court of Special Appeals

Below are some recently decided criminal law cases from the Maryland Court of Appeals and the Court of Special Appeals.  Coming soon- I will post about Petitions for Writ Actual Innocence and the body of case law that is developing on the issue.  Two of the most recent decisions on Petitions for Writ of Actual Innocence were decided recently and are covered below.

ALA’s and Adnan Syed

**UPDATE: The Court of Special Appeals granted the ALA in Adnan’s case on February 6, 2015. The case was sent back to Judge Welch in Baltimore City Circuit Court for the court to consider Asia’s affidavit and potential testimony.  Adnan is also attempting to amend his petition with an additional claim regarding the cell phone data that was a key part of the evidence against Adnan.  Although the circuit court must consider the affidavit from Asia, including information that she was misled by the prosecution regarding the potential significance of her testimony, the court will decide, in light of this information, whether to grant a hearing or not.

I’ve been meaning to post for a while regarding the next step if you lose your post conviction. The current buzz around the Serial Podcast and the recent action in Adnan Syed’s case seem like an ideal jumping off point.  So what happens if you lose your post conviction?  What is your recourse?  You may file an Application for Leave to Appeal (or an “ALA” for short) within 30 days of the date of the court’s order denying you post conviction relief.  You are limited to the issues you raised in your post conviction petition.  You don’t have to raise every issue you argued in post conviction, but you cannot raise new issues that you never argued before.  This is because the crux of your argument in your Application for Leave to Appeal is that the post conviction court got it wrong in denying you relief.  You cannot say the post conviction court decided an issue wrong if they never had the opportunity to hear it.  The ALA is filed in the clerk’s office of the circuit court that heard the post conviction and the ALA is then forwarded to the Court of Special Appeals.  An ALA is different than a direct appeal.  If you are found guilty after a trial, you have a direct right of appeal.  That means the Court of Special Appeals must hear your case.  You may file a lengthy written brief; the Attorney General’s Office (not the State prosecutor) files a response; sometimes you file a reply to the Attorney General’s brief; and typically, there is an oral argument before a panel of three judges in the Court of Special Appeals in Annapolis.

An ALA is a bit of a different animal.  Certain pleadings such as a post conviction, a motion to reopen, or a guilty plea do not automatically have the right to appeal.  Instead, you have the right to ask for permission for the Court of Special Appeals to hear your appeal.  Typically, an ALA is shorter document than a full fledged appeal.  In the vast majority of cases, the Court of Special Appeals issues a one page opinion that reads, “read, considered, denied.”  On rare occasion, the Court will order the Attorney General to respond, and then sometimes the Court will set the case in for full briefing and oral argument.  At that point, the case is treated in a similar manner to a direct appeal.  In the Application for Leave to Appeal, you are arguing that the circuit court who denied your post conviction got it wrong.  So for example, if you alleged in your post conviction petition that your trial counsel was ineffective for failing to call an alibi witness and the post conviction court said, I do not find that trial counsel was ineffective because I’m persuaded that trial counsel made a tactical decision to not pursue this witness, then you are asking the next highest court to disagree with the post conviction court and find that trial counsel was ineffective for the reasons your argued in the court below.

So what exactly is happening in Adnan Syed’s case and what is the significance of the recent action taken by the Court of Special Appeals?  Represented by C. Justin Brown, Mr. Syed filed a post conviction petition alleging ineffective assistance of counsel.  As is usually argued in a post conviction petition, Mr. Syed argued that trial counsel was ineffective, i.e. made a serious mistake, that caused him prejudice, i.e., there is a substantial possibility that but for trial counsel’s mistake, the result of the trial would have been different.  If Mr. Syed could persuade the post conviction court that trial counsel was ineffective in this way, then he would be entitled to a new trial.  Mr. Syed alleged, amongst other claims, “whether it was ineffective for trial counsel to ignore and fail to investigate a credible alibi witness who had stated, prior to trial, that she was with Petitioner at approximately the same time that the murder occurred;” and whether trial counsel was ineffective for telling her client she had fulfilled his wish and approached the State about a plea offer, when in fact trial counsel had never spoke to the State about a potential plea deal.”  Unfortunately, Mr. Syed was not able to produce his alibi witness at the post conviction hearing to testify about what she would have said if she had been called to testify at the original trial.  Although, Mr. Syed had an affidavit from his alibi witness, one of the prosecutors from the original case testified at the post conviction hearing that he had been in contact with the alibi witness and that she informed him that she was pressured into writing the affidavit by Mr. Syed and his family.  The post conviction court denied relief and Mr. Syed filed an ALA arguing that the post conviction court got it wrong with regard to those two claims.  The Court of Special Appeals ordered the Attorney General’s Office to respond on the second issue, whether the trial counsel was ineffective for telling her client that she sought a plea deal on his behalf, when, in fact, she had not.  After the State responded, Mr. Syed then filed a Supplement to his Application for Leave to Appeal asking the Court of Special Appeals to do one of the following, either 1) send the case back down to the post conviction court in light of new evidence; or, to consider the first issue regarding the alibi witness as well as the second issue.  The new evidence was a new affidavit from the alibi witness who stated that the prosecutor was lying when he testified at the post conviction hearing and said she (the alibi witness)  told the prosecutor that she was pressured into writing that affidavit.  The new affidavit stated that the prosecutor misrepresented the potential importance of her alibi information to her.  The affidavit also reasserted that she wrote the original affidavit freely and honestly.  Fortunately for Mr. Syed, on February 6, 2015, the Court of Special Appeals issued an order granting his Application for Leave to Appeal and setting the case in for full briefing and oral argument.  My understanding is that, as of right now, the Application has only been granted with regard to the second issue, i.e., seeking a plea offer.  In the order, the Court refers the first issue to another panel of Court of Special Appeals judges to consider the issue regarding the alibi witness.  This grant does not reverse the decision of the post conviction court, not yet anyway.  It simply means that Mr. Syed has been given another opportunity to argue that his trial attorney was ineffective for not seeking a plea deal; and, potentially, another opportunity to argue that trial counsel was ineffective to for failing to investigate the alibi witness.  The Court’s order specifies when each side must file their briefs on those limited issues and when oral argument will take place, June of 2015.