Tuesday, January 20, 2015

[See Updates Below]

I've posted 31 entries 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, on January 13, 1999. These posts are collected in my Legal Companion to the Serial Podcast. I said my last post would be my final post on the case until the court opinion granting Adnan a new trial. But then, I learned that Asia McClain signed an affidavit, in which she claimed that Kevin Urick (one of the prosecutors at Adnan's trials in 1999 and 2000) misled her into not testifying at Adnan's postconviction proceeding (and, by implication, mischaracterized what she said to him when he testified at the proceeding). This affidavit is mentioned in an article/interview today in The Blaze. It is also the basis for Adnan's Supplement to Application for Leave to Appeal the Denial of Post-Conviction Relief and Request for Remand (Download Supplement to Application for Leave to Appeal). This affidavit could potentially have a significant impact on Adnan's chances for relief at both the state and federal levels, so I thought I'd do one final post to update my prior post.

As I noted in my prior post, I became convinced that Adnan was entitled to federal habeas relief under 28 U.S.C. § 2254 based upon the Fourth Circuit's opinion in Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992). That's the case in which the Fourth Circuit held that the same court(s) that handled Adnan's case misapplied clearly established federal law by failing to grant a new trial to a defendant whose attorney failed to contact alibi witnesses.

One assumption in that post was that the statute of limitations on Adnan's federal habeas claim had not run out because Asia was unwilling to testify until she was approached by a neutral third party: Sarah Koenig. I'm no longer sure that's the case after reading Asia's affidavit. So, what does that mean? Take a look at Update #2 at the bottom of my prior post. It means that the legal standard is a bit different. Overall, it's a tougher standard to satisfy, but the standard allows the court to consider all evidence, whether admissible or inadmissible, and whether presented at trial or not. This means that the court could consider, inter alia,

(1) Asia's testimony; (2) the fax that AT&T sent to the Baltimore Police Department indicating that cell tower pings from incoming calls, like the Leakin Park pings, "will NOT be considered reliable information for location;" and (3) the interview with the key witness for the prosecution, in which he admitted to some important lies at trial and also said, contrary to his trial testimony, that he asked to borrow Adnan's car and that Adnan did not mention killing Hae when loaning him the car.

In other words, if the statute of limitations has run on Adnan's federal habeas claim, it's sort of a mixed bag. There are things that seemingly help Adnan's case (all the newly discovered evidence) and other things that seemingly hurt Adnan's case (the higher legal standard). For an example of a federal court granting a new trial on federal habeas grounds based on failure to contact alibi witnesses, you can take a look at Lopez v. Miller, 915 F.Supp.2d 373, 383 (E.D.N.Y. 2013). You can also keep in mind that the Fourth Circuit described Griffin as an easy case, meaning that the precedent from Griffin would still be very helpful to Adnan should his case reach federal court.

But I think the chances of Adnan's case reaching federal court have now been greatly diminished. Let's take a look at Adnan's Supplement to Application for Leave to Appeal the Denial of Post-Conviction Relief and Request for Remand (Download Supplement to Application for Leave to Appeal).

Issue #1: Will Adnan's case be remanded to the Circuit Court?

Adnan's attorney is asking the Court of Special Appeals of Maryland to remand his case to the Circuit Court for the City of Baltimore for additional fact-finding pursuant to Section 8-204 of the Maryland Code of Criminal Procedure. In deciding whether to remand, the court will consider whether remand is "in the interests of justice," the same standard used by Maryland courts in deciding whether to (1) grant motions for new trials; and (2) reopen postconviction proceedings.

The Maryland courts have seemingly never defined "in the interests of justice" outside the context of motions for new trials, but the Court of Special Appeals of Maryland did note the following in Gray v. State, 857 A.2d 1176, 1182 n.3 (Md.App. 2004), a case involving a motion to reopen a postconviction proceeding:

Although the phrase "in the interests of justice," as used in CP § 7-104, has not been defined, we have considered its meaning in the context of a motion for a new trial under Md. Rule 4-331, the granting of which is also within the discretion of the circuit court. In Love v. State, 95 Md.App. 420, 427, 621 A.2d 910 (1993), we stated that the grounds "for the granting of a new trial...[are] virtually open-ended," including the following: "that the verdict was contrary to the evidence; newly discovered evidence; accident and surprise; misconduct of jurors or the officer having them in charge; bias and disqualification of jurors ...; misconduct or error of the judge; fraud or misconduct of the prosecution." (emphases added).

It seems safe to assume that the court will use the same definition of "in the interests of justice" in deciding whether to remand Adnan's case for additional fact-finding. Let's now take a look at two of the cases cited in Adnan's filing from today.

First, in Campbell v. State, 376 A.2d 866 (Md.App. 1977), Mack Campbell was convicted of robbery and moved for a new trial based upon prosecutorial misconduct. Specifically, Campbell alleged that the prosecutor implied to a co-participant in the robbery that charges would not be brought against him if he refrained from testifying for Campbell at trial. Importantly, the co-participant's attorney made clear that there was no overt threat made by the prosecutor:

"You didn't promise us anything but the whole conversation, taken in proper prospective, being around the courts, understanding everything, how the system works, it was given me the impression by our conversation if my client did not testify his case, the stets opened would be re-evaluated, meaning to me if he is a good boy, keep his mouth shut, he probably has nothing to worry about."

It didn't make any difference. The Court of Special Appeals of Maryland still found that it was "in the interests of justice" to grant Campbell a new trial based upon the Supreme Court's opinion in Webb v. Texas, 409 U.S. 95 (1972), which found a due process violation after a judge too harshly warned a prospective defense witness about the consequences of perjury. The holding of Webb and Campbell is clear: The prosecutor or judge doesn't have to overtly threaten a prospective defense witness for there to be a due process violation. Even relatively minor conduct that dissuades a witness from testifying suffices.

Second, in Curry v. State, 458 A.2d 474 (Md.App. 1983), Darius Curry moved for a new trial after he was convicted of murder and related crimes. His secondary claim was that the prosecutor improperly commented on his decision not to testify at trial. His primary claim was described in this following excerpt from the opinion:

In the case now before us, the prosecutor represented to the jury that the two youthful witnesses, upon whom he relied to establish the connection between the defendants and the decedent, had no "criminal" records. That representation was true so far as it went. Malcolm, as we have seen, had a juvenile record, while Tracy, although charged with assault,...had not, at the time the statement was made been convicted of any crime. Because the prosecutor's statement about the two youths was verisimilar, it was most certainly, under the circumstances of the instant case, deceiving to the jury. Moreover, characterization of the two witnesses as having lived "exemplary" lives was a gross misstatement of fact designed to evince the trustworthiness of the witnesses and thus bolster the State's circumstantial case.

In other words, the prosecutor didn't technically lie: the two witnesses for the prosecution didn't have "criminal records." It didn't make any difference. Because the prosecutor's statements could be construed as "deceiving," Curry got a new trial.

Now, let's turn to Adnan's postconviction proceeding. The first thing to keep in mind is that Adnan is not asking for a new trial. He is merely asking that his case be remanded to the Circuit Court for further fact-finding, such as Asia's testimony. Even if we think that Urick unintentionally dissuaded Asia from testifying and made some minor, honest mistakes in testifying about what Asia told him, I think that Campbell and Curry easily stand for the proposition that "the interests of justice" support remand to the Circuit Court. Then, at that point, the Circuit Court can decide exactly what happened with Asia.

Issue #2: If the case is remanded, will Adnan be given a new trial?

The first question on this front is whether the court will believe Asia. The ace in the hole seems to be Don, Hae's boyfriend at the time of her death. In the final episode of Serial, Sarah Koenig notes that

according to Don, prosecutor Kevin Urick might have been wondering the same thing. Don said, "when I testified, they pulled me in a back room and let me tell you how fun that was, to have the prosecutor afterwards yelling at me because I did not make Adnan sound creepy," he said, "they wanted me to make him sound creepy. So creepy that I felt intimidated, which I did not. Adnan, he was very personable. He was funny, he was everything I already said. He was somebody that I would have hung out with if I knew him in school." Don’s memory is that Urick yelled at him after both the first and second trials. "Oh, he was irate" Don said, "when I say yelling, he was literally yelling about it at me." I ran this by Kevin Urick but he said he was not authorised to talk about the case.

I don't see any real reason for Don to lie about this. It was his girlfriend who was killed. He was a witness for the prosecution. He has no reason to say that Urick yelled at him after he testified at both trials because his testimony didn't fit the theory of the case. If it were just Asia testifying about Urick dissuading her from testifying, that would be one thing. If Don is willing to testify or sign an affidavit, that's something else entirely. Yelling at a witness is not exactly the same thing as dissuading a witness from testifying, but it would help prove a pattern of inappropriate conduct between Urick and witnesses (and if Urick denies yelling at Don, it raises a credibility issue). Given this and the fact that Asia apparently took notes when she talked to Urick, I think that the court will find her reliable.

The second question is whether the court will grant Adnan a new trial. I think that Adnan's filing from today does a nice job of explaining how there's only one key difference distinguishing Adnan's case from the opinion of the Court of Appeals of Maryland in In re Parris W., 770 A.2d 202 (Md. 2001) and the cases cited therein: there was no testimony or proffer of Asia's testimony at Adnan's postconviction proceeding. Instead, the court merely heard from Urick, who said that Asia was pressured into writing her prior affidavit and didn't want to testify.

Parris W. was a single issue ineffective assistance of counsel (IAC) case. I discussed single issue IAC cases in this post. In such cases, it is irrelevant how well defense counsel did in other areas of the case; a single error can result in relief. In Parris W., which I discussed in my post on the first episode, defense counsel subpoenaed five "alibi" witnesses to appear for the wrong trial date. These witnesses, of course, didn't show up at trial, and the defendant was eventually adjudicated delinquent on the charge of assault in the second degree.

After he was convicted, the defendant appealed, claiming that he received the ineffective assistance of counsel because it was if his attorney failed to contact/investigate these witnesses. The Court of Appeals of Maryland agreed, in large part because it was proffered that one of the alibi witnesses saw the defendant thirty miles from the site of the assault on the afternoon of the crime. Accordingly, the court granted the defendant a new trial. As support for its holding, the Court of Appeals of Maryland cited several cases.

The first of these cases was Griffin, which the court described as "strikingly similar" to Parris W. As I noted in my prior post, Griffin is actually strikingly similar to Adnan's case in that it involves failure to contact alibi witnesses and even involved the same court(s) that heard Adnan's case/appeal. Another of these cases cited by the court in Parris W. was Grooms v. Solem, 923 F.2d 88, 90 (8th Cir. 1991), which was the case that the Griffin court cited for the proposition that "[o]nce a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense." Indeed, each of these cases cited by the court in Parris W. resulted in a finding of IAC based on defense counsel failing to contact/investigate alibi witnesses who said they saw the defendant at the time of the crime charged, which is exactly what Andan is claiming.

There was previously just that one difference noted above: Asia didn't testify at Adnan's postconviction proceeding. The alibi witnesses testified at the postconviction proceeding in Griffin. They testified at the habeas proceeding in Grooms. They testified in each of the other cases cited in Parris W. If Asia is allowed to testify on behalf of Adnan, his case will look a lot like a case reversed by Maryland's highest court and all of the cases cited by that court.

[Update: Serial Challenge

In my post, I noted that, if Asia McClain testifies at a reopened post-conviction review hearing that she saw Adnan in the library on January 13th, the Circuit Court could grant him a new trial based upon the opinion of the Court of Appeals of Maryland in In re Parris W., 770 A.2d 202 (Md. 2001) and the cases cited therein. After conducting some additional research, I can now make this statement much broader: If Asia testifies, the Circuit Court could grant Adnan a new trial based on precedent from across the country.

Adnan’s Petition for Post-conviction Relief claimed that he received the ineffective assistance of counsel because his attorney “Fail[ed] to Investigate Asia McClain” (pg.13) and “never even contacted McClain,” a fact established through her 2000 affidavit (pg. 14). In its opinion rejecting Adnan’s petition, the Circuit Court acknowledged that Adnan was claiming “that trial counsel failed to investigate Asia McClain as a potential alibi witness” (pg. 10) and that trial counsel “was made aware of Ms. McClain” (pg. 11). In response, the court noted that “[a] decision not to investigate must be reasonable in light of prevailing professional norms, with heavy deference to trial counsel’s judgment.” (pg. 10). The Circuit Court ultimately found that trial counsel’s decision not to contact or investigate Asia was reasonable (pg. 11-12), and I can at least understand that decision, given that (1) Asia did not testify at the post-conviction review hearing; and (2) the prosecutor claimed that Asia told him she only wrote her affidavit due to pressure from Adnan’s family.

But, if Asia is now able to testify that she saw Adnan at the library on January 13th, a finding that Adnan’s trial counsel was unreasonable in failing to contact or investigate Asia would be consistent with precedent from across the country. Conversely, a finding of reasonableness would be inconsistent with any opinion I’ve come across. This sets the table for what I will call the Serial Challenge: Can anyone find a case in which any court in any reported, final opinion has ever found that it was reasonable for an attorney to fail to contact or investigate a potential alibi witness under the following circumstances:

1. The defendant identified a specific alibi witness to his attorney (The Circuit Court accepted as fact that Adnan notified his attorney about Asia). 2. The attorney was given contact information for the alibi witness (Asia’s first letter had her phone number). 3. The alibi witness could potentially contradict the State’s timeline for the crime and was not a cumulative witness (Adnan apparently told his attorney that Asia saw him at the library between 2:15 and 3:15 [Exhibit 4] and her clerk that Asia saw him at the library at about 3:00 [Exhibit 3]. Defense counsel probably knew this timing was important before the first trial and certainly knew this timing was important after the first trial. The prosecutor claimed in his opening statement at the first trial that Adnan called Jay at “about 2:30, 2:40” and told him to meet him at Best Buy, and Inez Butler-Hendricks testified at the first trial that she saw Hae leaving school in a hurry between 2:15 and 2:20 (pg. 179-180). Defense counsel called no witness who saw Adnan between the immediate aftermath of school and the start of track practice). 4. The alibi witness testified in a manner that generally corroborated the defendant’s own testimony (Adnan testified at the post-conviction review hearing that he (1) remembered seeing Asia at the library on January 13th before he left at about 3:00 to get ready for track practice and (2) told his attorney as much (pg. 4). If Asia testifies at a reopened hearing consistent with either of her affidavits (2000 affidavit; 2015 affidavit), she would generally corroborate Adnan’s testimony).

So, that’s my challenge to any reader: Find even one case in which the final, reported opinion found that it was reasonable for an attorney to fail to contact or investigate a potential alibi witness under similar circumstances. If so, I will add it under a second heading of “Finding of Reasonableness.” As it currently stands, I have 50 opinions under a first heading of “Finding of Unreasonableness or Potential Reasonableness.” These are opinions in which courts have either found unreasonableness or done something like remand for additional factfinding based on a claim of (1) failure to contact or investigate potential alibi witnesses; (2) failure to adequately contact or investigate potential alibi witnesses; (3) behavior analogous to failure to contact or investigate potential alibi witnesses (such as subpoenaing alibi witnesses for the wrong day or failing to file an alibi notice). Among the courts included are every federal circuit court, several federal district courts, and courts in 19 states (Alabama, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Maryland, New Jersey, New York, Oregon Pennsylvania, South Carolina, Texas, West Virginia, Wisconsin) plus the District of Columbia. As I find additional cases, I will add them to this post on a periodic basis.

Finding or Unreasonableness or Potential Unreasonableness

1. In re Parris W., 770 A.2d 202 (Md. 2001).

2. Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992) (case involving the same courts handling Adnan’s trial and appeal).

3. Grooms v. Solem, 923 F.2d 88 (8th Cir. 1991).

4. Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988).

5. Tosh v. Lockhart, 879 F.2d 412 (8th Cir. 1989).

6. Johns v. Perini, 462 F.2d 1308 (6th Cir. 1972).

7. Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994).

8. Walker v. State, 756 S.E.2d 144 (S.C. 2014).

9. Toney v, Miller, 564 F.Supp.2d 577 (E.D.La. 2008).

10. United States v. Johnson, 970 F.2d 907 (D.C. Cir. 1992).

11. Lopez v. Miller, 915 F.Supp.2d 373 (E.D.N.Y. 2014).

12. Washington v. Smith, 48 F.Supp.2d 1149 (E.D.Wis. 1999).

13. Butler v. McEwan, 2014 WL 2566069 (C.D.Cal. 2014).

14. Francis v. People, 2012 WL 3183823 (D.V.I. 2012).

15. Matthews v. Abramajtys, 319 F.3d 780 (6th Cir. 2003).

16. Matthews v. Abramajtys, 92 F.Supp.2d 615 (E.D.Mich. 2000).

17. United States v. Williams, 2012 WL 38229 (D.Minn. 2012).

18. State v. Glover, 396 S.E.2d 198 (W.Va. 1990).

19. Ballard v. Hurt, 2014 WL 2404302 (W.Va. 2014).

20. State v. Glover, 355 S.E.2d 631 (W.Va. 1987).

21. State v. Sanford, 948 P.2d 1135 (Kan.App. 1997).

22. Montalvo v. Mantello, 233 F.Supp.2d 554 (S.D.N.Y. 2002).

23. Bigelow v. Williams, 367 F.3d 562 (6th Cir. 2004).

24. Lawrence v. Armontrout, 900 F.2d 127 (8th Cir. 1990).

25. Bell v. Georgia, 554 F.2d 1360 (5th Cir. 1977).

26. Avery v. Prelesnik, 524 F.Supp.2d 903 (W.D.Mich. 2007).

27. Stewart v. Wolfenarger, 468 F.3d 338 (6th Cir. 2006).

28. Ramonez v. Berghuis, 490 F.3d 482 (6th Cir. 2007).

29. Gaines v. Commissioner of Correction, 51 A.3d 948 (Conn. 2012).

30. Ellerby v. United States, 187 F.3d 257 (2nd Cir. 1998).

31. Rolan v. Vaughn, 445 F.3d 671 (3rd Cir. 2006).

32. Holmes v. McKune, 59 Fed.Appx. 239 (10th Cir. 2003).

33. Code v. Montgomery, 799 F.2d 1481 (11th Cir. 1986).

34. Brown v. Myers, 137 F.3d 1154 (9th Cir. 1988).

35. Moran v. Vose, 816 F.2d 35 (1st Cir. 1987).

36. Teat v. State, 589 So.2d 815 (Ala.Crim. 1991).

37. Thomas v. State, 639 S.W.2d 353 (Ark. 1982).

38. People v. Shaw, 674 P.2d 759 (Cal. 1984).

39. State v. Allen, 1990 WL 1104263 (Del.Supr. 1990).

40. Jones v. United States, 918 A.2d 389 (D.C. 2007).

41. Cohens v. State, 775 So.2d 336 (Fla.App. 2nd 2000).

42. Tenorio v. State, 583 S.E.2d 269 (Ga.App. 2003).

43. People v. Krankel, 447 N.E.2d 1379 (Ill.App. 4th 1983).

44. Williams v. State, 508 N.E.2d 1264 (Ind. 1987).

45. State v. Cooks, 726 N.W.2d 633 (Wis.App. 2006).

46. Jones v. State, 133 S.W.3d 307 (Tex.App. 2004).

47. Commonwealth v. Bronson, 321 A.2d 645 (Penn. 1974).

48. Lichau v. Baldwin, 39 P.3d 851 (Or. 2002).

49. People v. Bussey, 6 A.D.3d 621 (N.Y.App.2nd 2004).

50. State v. Porter, 80 A.3d 732 (N.J. 2013).]

[Update #2: Yesterday, the State filed a Motion to Strike Appellant's Supplement to Application for Leave to Appeal and Request for a Remand. The State gives two grounds for striking the Supplement:

I'm no expert in Maryland law, but it seems to me like Campbell v. State, 821 A.2d 1 (Md. 2003), might be applicable here. In Campbell, the defendant filed a motion for a new trial and then made an untimely supplement to the motion based upon new evidence that Oscar Veal, the witness who implicated him in the crime, had falsely incriminated a different defendant in another case. According to Maryland's highest court,

The Veal supplement/motion in the present case, although technically not filed within the time frame established by Rule 4-331(c), was filed before final judgment was entered and while the trial court retained jurisdiction over the matter. Thus, the trial judge had discretion to consider the newly discovered evidence ground for new trial raised in the supplement/motion. The reasons for imposing strict filing deadlines are not implicated by premature filings. An early motion does not raise questions about the court's jurisdiction because the court clearly has jurisdiction before final judgment. A trial court's jurisdiction over a matter generally continues until a final judgment is rendered by that court; a verdict without a sentence in a criminal case is not a final judgment.

It seems like the reasoning of Campbell applies in Adnan's case because the Court of Special Appeals of Maryland has not yet decided whether to grant Adnan leave to appeal. Therefore, it seems to me that the court has discretion to consider Adnan's supplement and should consider the supplement because of the seriousness of the allegations contained therein.

This takes me to the second argument in the State's filing, which was that, "rather than promptly informing this Court and the State of the information to be contained in the supplement, appellant delayed filing of the supplement until after the State filed the response directed by this Court." My response is that Asia's new affidavit was the basis for the supplement, and it was completed on January 13, 2015. The supplement was then submitted a week later, the day after two weekend days and the Martin Luther King, Jr. Holiday. That doesn't really line up with the claim of a "delayed filing.]

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/01/ive-posted-31-entriessarah-koenigsserial-podcast-which-deals-withthe-1999-prosecution-of-17-year-old-adnan-syed-for-murderin.html