By Steve Klepper (Twitter: @MDAppeal)

At times, the attorneys’ arguments in the February 2016 hearing in State v. Syed followed a familiar script on the question of prejudice – that is, whether facts that previously didn’t make it into the record would have made a difference.

Syed’s counsel argued that the State’s case already depended on testimony the jury could disbelieve, and that the additional evidence easily satisfied Syed’s burden of showing a “reasonable probability” of a different result. Putting the opposite spin on the same facts, the State argued that, because prior counsel thoroughly impeached the State’s evidence, the additional evidence was cumulative. According to the State, if the jury chose to convict Syed, despite attacks on the testimony of Jay Wilds and the State’s cell tower expert, then there is no reason to think additional attacks would have made a difference.

I’ve seen that line of argument work for prosecutors numerous times. It’s emblematic of the uphill battle that an attorney faces in representing the convicted. If the prosecution’s witnesses went unimpeached at trial, then the evidence was so strong that nothing would have made a difference. But if the evidence was close, additional attacks are labeled as cumulative.

That argument was at the center of the Supreme Court’s new opinion in Wearry v. Cain. A Louisiana jury convicted Michael Wearry of murder, based in large part on the testimony of Sam Scott. The jury convicted even though on “cross-examination, Scott admitted that he had changed his account several times.” (Sound familiar, Serial fans?) Post-conviction counsel learned that the prosecution failed to turn over evidence, including that “two of Scott’s fellow inmates had made statements that cast doubt on Scott’s credibility.” The Louisiana state courts, however, found no prejudice from the prosecution’s failure to disclosure the evidence.

The no-prejudice arguments against Wearry found a receptive audience with Justice Alito who, in a dissent joined by Justice Thomas, wrote:

This prisoner never testified at trial, and there is a basis for arguing that this information would not have made a difference to the jury, which was well aware that Scott did not have an exemplary record of veracity. Scott himself admitted to fabricating information that he told the police during their investigations. In addition, a witness who did testify against petitioner at trial also accused Scott of asking him to lie, although admittedly this witness later denied making this accusation. Given that the jury convicted even with these quite serious strikes against Scott’s credibility, there is reason to question whether the jury would have seriously considered a different verdict because of an accusation from someone who never took the stand.

The majority, however, summarily reversed the Louisiana Supreme Court in a per curiam opinion. They agreed with the dissent’s statement that “Scott did not have an exemplary record of veracity,” but they reached the opposite conclusion from that observation. “Scott’s credibility, already impugned by his many inconsistent stories, would have been further diminished” in view of the numerous pieces of undisclosed evidence uncovered during post-conviction proceedings. “Even if the jury – armed with all of this new evidence – could have voted to convict Wearry,” the majority had “no confidence that it would have done so.”

The Supreme Court resolved Wearry based on the prosecution’s breach of its obligation to disclose evidence under Brady v. Maryland, 373 U. S. 83 (1963), without reaching the petitioner’s separate claim for ineffective assistance of counsel. Nevertheless, the same “reasonable probability” standard governs both Brady claims and ineffective assistance claims of the type that Adnan Syed asserts.

Wearry significantly undermines the State’s theory for why Syed cannot prove prejudice. It does not hurt Syed’s case that the jury knew Jay Wilds had changed his story, or that trial counsel gave the jury numerous reasons not to credit the cell tower evidence. Rather, these facts help Syed to show that this was a close case, with a reasonable probability of different result.

[Addendum, 3/8/2016, 9:30 a.m.: Shortly after this post went up, I thought of a good term for the prosecution’s argument here: “the prejudice paradox.”]