Saturday, April 25, 2015

Yesterday, somebody released the transcript from Adnan Syed's Postconviction Review Hearing. Here is the heart of prosecutor Kathleen Murphy's argument from that hearing about why the court should deny Adnan's claim that he received the ineffective assistance of counsel based upon his trial attorney's failure to contact potential alibi witness Asia McClain:

Simply put, this argument has me more convinced than ever that the Court of Special Appeals of Maryland can and should remand to the Circuit Court to allow Asia McClain to testify.

The case cited by Murphy is Veney v. Warden, 271 A.2d 133 (Md. 1970). In Veney, Samuel Veney, was convicted of murder in the first degree and was sentenced to death by the administration of lethal gas. Veney thereafter brought a petition for postconviction relief, claiming, inter alia, "[t]hat the petitioner's counsel failed to subpoena a defense witness whom petitioner wished to have testify on his behalf."

Here's the relevant portion of the court's opinion denying Veney's petition:

An eighth contention raised by the petitioner is that his counsel failed to summon a witness whom the petitioner desired to testify in his behalf. The Clerk of the Circuit Court for Frederick County stated upon inquiry by the Court at the hearing on this petition that the witness in question, a Mr. Marvin, was not summoned nor was a summons requested. The Court concludes, however, that this contention must fail on its face since a failure to call witnesses will only constitute a ground for post conviction relief where the petitioner produces the alleged witnesses in support of his claim that the denial was prejudicial to his right to a fair trial. White v. Warden, 1 Md. App. 670, 232 A.2d 821 (1967). In the instant case the petitioner has not produced the witness to substantiate the claim that such witness was essential to a fair trial.

And there you have it. Maryland's highest court found that a claim that trial counsel was ineffective for failing to call a witness at trial failed on its face because the defendant did not call that witness to testify at his PCR hearing. This is the exact same argument that Murphy made at Adnan's PCR hearing, and it explains why Adnan's PCR petition was similarly rejected. Anything else that the Circuit Court said was basically window dressing; Asia's testimony was the sine qua non of a successful claim of ineffective assistance of counsel.

Now, we have Asia McClain's new affidavit. In it, she claims that she was dissuaded from testifying based upon a phone conversation with Kevin Urick, one of the prosecutors at Adnan's original trial(s). As a result, the Court of Special Appeals of Maryland has to decide whether to remand to the Circuit Court to allow Asia to testify.

In making this decision, the Court of Special Appeals has to decide whether a remand is in the interests of justice. To remand, the court basically has to find (1) the possibility of prosecutorial misconduct based upon Urick's statements to Asia and/or the court at Adnan's PCR hearing; and (2) the possibility of a different outcome after Asia testifies.

I've already discussed (1) in detail in this post. The key cases on this point are Campbell v. State, 376 A.2d 866 (Md.App. 1977) and Curry v. State, 458 A.2d 474 (Md.App. 1983). Both of them stand for the proposition that even pretty benign behavior by the prosecutor is sufficient to satisfy the "interests of justice" standard, and both of them actually involved new trials being granted, not simply remand for additional factfinding.

As for (2), Murphy's argument and Veney lay this out pretty clearly. Without Asia's testimony, Adnan basically had no chance of winning on his ineffective assistance claim. On the other hand, if Asia testifies consistently with seeing Adnan at the library on January 13, 1999, well...I have 70 cases supporting the proposition that such testimony should lead to the court granting Adnan a new trial. Simply put, Asia's testimony could make all the difference in the world, which is why the court could and should remand to the Circuit Court to allow that testimony.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/04/yesterday-somebody-released-the-transcript-from-adnan-syedspostconviction-review-hearing-here-is-the-heart-of-prosecutor-ka.html