Wednesday, December 17, 2014

I've done seventeen posts

(here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here)

about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is a preview of the twelfth and final episode of Serial. If you look at the Serial Podcast website, there is not a title for the final episode yet, but there is an image: the first page of the verdict sheet from Adnan's trial. From this, I'm guessing that the last episode will ask viewers whether they agree with the jury's decision to find Adnan guilty beyond a reasonable doubt. But guilty of what? From the image, I can pretty confidently conclude that the jury had to reach a particular conclusion about exactly how the crime was committed.

As I noted yesterday,

Section 3-502 [of the Maryland Code of Criminal Law] states in relevant part that "[a] person may not, by force or fraud, carry or cause a person to be carried in or outside the State with the intent to have the person carried or concealed in or outside the State."

If you look at the bottom of the image of the verdict sheet for Adnan's case, it says:

"3. As to Count 1, charging the Kidnapping by fraudulently carrying Hae Min Lee within the State, how do you find the defendant, Adnan Syed?"

We know that the answer to the question was "GUILTY" because Adnan was convicted of kidnapping. What we also know from this question is that the prosecution's theory of the case was that the kidnapping was committed by fraud, not force.

In Watkins v. State, 478 A.2d 326, 336 (Md.App. 1984), the Court of Special Appeals of Maryland explained kidnapping by fraud by citing the following language from State v. Murphy, 184 S.E.2d 845, 848 (N.C. 1971): "'Where false and fraudulent representations amounting substantially to a coercion of the will of the victim are used in lieu of force in effecting kidnapping, there is in law no consent at all on the part of the victim. Under those circumstances the law considers fraud the equivalent of force.'"

In Watkins, the court also explained the difference between false imprisonment (which Adnan was also convicted of) and kidnapping: "[T]he only distinction between the two crimes is the additional element of asportation required for a kidnapping...." Asportation is the carrying away of the victim, see Carey v. State, 458 A.2d 90 (Md.App. 1983), and you can see how the asportation requirement is included in Section 3-502: "[a] person may not...carry...a person...in...the State with the intent to have the person carried or concealed in...the State."

So, what does this mean about the jury's verdict in Adnan's case? It means that the jurors did not find that:

(1) Adnan snuck into Hae's car when she was at the concession stand at the gym, hid, and attacked her when he had the chance; (2) Adnan and Hae got into an argument in the parking lot of the Woodlawn Library, with Adnan spontaneously strangling her; (3) Adnan got Hae to drive him somewhere with the intention of talking with her but then strangled her when she said something he didn't like (e.g., we're done for good); (4) Adnan threatened Hae unless she drove him to the Best Buy or some other location; (5) Adnan hit Hae on the head, knocking her out, and drove her to a location where he strangled her; or (6) Any other theory except for the one I'm about to explain.

For the jurors to find Adnan guilty of kidnapping by fraud, they had to believe the following theory of the case beyond a reasonable doubt (subjective state of near certitude): Adnan lied to Hae to get her to drive him to a location (likely Best Buy) where he intended to harm her and ended up killing her. That's the only way that the jurors could have found that Adnan "fraudulently carr[ied] Hae Min Lee within the State."

So there you have it. You might think that Adnan killed Hae or that someone else killed Hae. Personally, I'm on the fence. But for you to think that the jurors reached the correct conclusion in Adnan's case, you have to believe that the prosecution proved beyond a reasonable doubt that Adnan lied to Hae to get her to drive him to a location where he intended to harm her and ended up killing her.

Now, you might wonder about the utility of this exercise. The utility lies in the fact that Adnan is still appealing his convictions. Specifically, his current claim is that he received the ineffective assistance of counsel (IAC). Pursuant to the Supreme Court's opinion in Strickland v. Washington, a defendant proves an IAC claim by proving

(1) that counsel’s performance "fell below an objective standard of reasonableness" as measured by "prevailing professional norms;" and (2) prejudice,i.e., "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

This second prong of the Strickland test is directly connected to what the jurors found at trial. Let's look at the substance of Adnan's IAC claim. Although there is a lack of clarity on the issue, it seems possible that, if the Court of Special Appeals of Maryland grants Adnan leave to appeal, it will consider whether trial counsel was ineffective in failing to contact Asia McClain as a potential alibi witness.

Tying this back to what the jury found, we can see the question the court would address under the second prong: If defense counsel contacted Asia McClain, is there a reasonable probability that the jurors would NOT have concluded beyond a reasonable doubt that Adnan lied to Hae to get her to drive him to a location where he intended to harm her and ended up killing her?

As I've noted before, I think Adnan has a pretty good chance of succeeding on this argument, and I've found a pretty good case to back me up: Holmes v. McKune, 59 Fed.Appx. 239 (10th Cir. 2003). In McKune, a victim was assaulted by two men and raped by one of them shortly after 9:30 P.M. on August 21, 1978. The State's way of proving the guilt of the teenaged defendant (Holmes) was somewhat odd. It called three witnesses who claimed to be camping with the defendant at the time of the crime, which was committed close to their campsite and Holmes's home. "The State's theory was that Holmes went camping with these boys after he had participated in the attack, in an attempt to create an alibi."

You see, police officers came upon Holmes and his friends after receiving a call about a campfire. When Holmes's three friends were later interviewed by police officers, two of them indicated that they thought the police approached them between 10:00 P.M. and 11:00 P.M. and that they had been with Holmes for a couple of hours. Alibi, right? Even if the police came to the campfire at 11:00 P.M., that would mean Holmes was with them starting at about 9:00 P.M.

But there were two problems. First, the friends' statements shifted between talking to police and testifying at trial. Second, "[t]hese estimates were demonstrated to be incorrect when the State introduced a dispatch card showing that the police responded to a call about the campfire a minute before midnight." This would mean that the friends met up with Holmes at about 10:00 P.M., after the crime had been committed. Here's the court's description of what the prosecutor did during closing:

Asserting that the "only documented time," other than the victim's testimony, was on the police dispatch card, and noting that the boys who testified Holmes went camping with them smoked marijuana that night..., the prosecutor claimed that Holmes had "set up an alibi," but "the time differentials...are not there."

Sound familiar? The prosecution claims a teenaged defendant tried to manufacture an alibi after committing a crime. The prosecution isn't happy with the shifting statements and timeline provided by its pot smoking witness(es), so it adjusts the facts to fit its preferred timeline. But at least in McKune, there was a rational basis -- the dispatch card -- for adjusting the timeline.

And then there's the last similarity: In McKune, the defense failed to call an alibi witness. That witness, Neil Phelps, claimed that he was playing Frisbee with Holmes "about all afternoon" on the day of the rape, until "around 10:00, 10:30." In finding that received the ineffective assistance of counsel because his lawyer didn't call this alibi witness, the court focuses on two things: (1) the alibi witness was not a relative of Holmes or someone with a close connection to him and a strong incentive to lie; and (2) the alibi witness provided a more reliable timeline than the pot smoking witness(es) with conflicting stories and tortured timelines .

This is why I think Adnan has a good chance of succeeding on appeal...if the Court of Special Appeals of Maryland allows him to make this argument.

-CM

https://lawprofessors.typepad.com/evidenceprof/2014/12/ive-done-sixteen-posts-hereherehereherehereherehereherehereherehereherehereherehereherehere-andhere-abou.html