I wanted to get this out sooner, but I’ve been swamped with my own cases. By now, much has already been written and discussed regarding oral argument in State v. Syed. Journalists published their articles that day and you can now purchase an audio of the arguments from the Court of Special Appeals and draw your own conclusions. So, I’ll try and narrow my focus a bit. This was my first trip to the Maryland Court of Special Appeals where I was simply a spectator. I’m not a journalist and I’m not disinterested. I’m a criminal defense attorney who handles post convictions and appeals. On the occasions when I find myself at 361 Rowe Boulevard, I’m fully immersed in my client’s issues and pay little heed to the rest of what’s going on around me. Last Thursday, I arrived as an interested observer and these are my impressions based on my notes. I did not re-listen to the arguments after the hearing.

On June 8, 2017, the Maryland Court of Special Appeals heard oral argument in the State’s appeal of the grant of post conviction relief and Syed’s cross-appeal challenging the post conviction court’s denial of relief with regard to the alibi claim. There were two primary issues before the Court, whether the post conviction court erred in finding that Syed’s trial counsel, Cristina Gutierrez, provided ineffective assistance of counsel in failing to cross examine the State’s expert regarding the unreliability of the cell tower location evidence; and, whether the post conviction court erred in denying relief on Syed’s claim that Gutierrez rendered ineffective assistance of counsel in failing to contact a potential alibi witness, Asia McClain.

Until the morning of oral argument, the parties do not know the names of the three judges who will hear their case. The judges were Chief Judge Patrick L. Woodard, Judge Kathryn Grill Graeff, and Judge Alexander Wright, Jr.

Appellate arguments typically lack the drama of the trial courtroom. The defendant is not transported to the argument. Neither side puts on evidence or calls witnesses. Unlike an attorney conducting direct or cross examination, the lawyers are not in charge here. Despite an appellate advocate’s agenda, the attorney must go where the judges direct. Each side had 30 minutes to argue. One attorney stands at the podium and faces the three judges. A “hot bench” peppers an attorney with questions and frequently interrupts. A “cold bench” poses little to no questions. Either extreme can be difficult. Personally, if choosing between the extremes, I prefer a hot bench to a cold one. It is never fun to feel as if you are boring the bench to death. On this day the bench was “hot.” They were informed, interested, extremely familiar with the record, and very engaged. The State, as appellant (the party challenging the decision of the court below) went first. The State initially chose to divide his time in half, 15 minutes to present his argument and 15 minutes reserved to rebut Syed’s arguments. The direction that these three judges were interested in was the alibi.

Despite leaving the Maryland Office of the Attorney General to become a partner at DLA Piper, Thiruvendran Vignarajah returned to represent the State as a Special Assistant Attorney General. The very first question was posed by Judge Graeff and it was a preview of the Court’s focus for the next hour an fifteen minutes. She asked the State to name a case where a Court held that it was reasonable to fail to investigate. The State responded that Syed’s trial counsel investigated extensively. Judge Graeff then asked the State to refer the Court to a case where failure to investigate an alibi witness was reasonable. The State responded that he was not aware of any case. The State then went on to explain that the resources of a defense attorney are limited so she cannot possibly look into every lead. He discussed the investigation that had been conducted. He pointed out that it was not clear from the record when Gutierrez received the alibi witness information. Judge Graeff then asked if the precise timing of Gutierrez’s receipt of the information regarding the alibi witness was relevant since it was clearly established that she received the information well in advance of the trial. The State responded that Gutierrez looked at the letters and saw them as an offer to lie. Judge Wright then asked if that was a finding of fact from the post conviction court. The State countered that it was a finding from the first post conviction ruling. Judge Wright continued with his point, ‘but that’s not what’s before us now, right? Since the court went to the prejudice prong, they must have concluded that it wasn’t an offer to lie.’ (I’m paraphrasing here based on my notes).

I’ll spare you the entire play by play, but the the alibi issue, particularly the deficiency prong of the ineffective assistance of counsel analysis, dominated the conversation. Remember that an ineffective assistance of counsel claim has two parts, the person convicted of the crime must demonstrate 1. that his attorney made a mistake (the deficiency prong) and 2. that the mistake was so serious that it likely changed the outcome (the prejudice prong). You can read more about that here.

The State had essentially three responses to the Court’s questions regarding deficient performance: 1. He asserted that Gutierrez had conducted a thorough investigation and that limited resources prevent attorneys from chasing down every questionable lead. 2. He challenged the veracity of the alibi itself and maintained that Gutierrez construed the letters from McClain as an offer to lie. 3. He argued that the library alibi conflicted with the defense theory of the case. The Court appeared unpersuaded by these responses. At one point, Chief Judge Woodard seemed, perhaps, frustrated and asked, “how can you evaluate an alibi witness if you don’t even talk to them?”

By this time in the argument, I believe that the State had passed the 15 minute mark and started going into its reserve time, which is not uncommon. If the Court continues to pose questions, then the attorney will remain at the podium to answer them. The Court may also permit an attorney to go over his time at its discretion. Toward the end of his argument the State made a remark that stood out to me. The State said that the only evidence that Mr. Syed went to the public library was Asia McClain. The State was attempting to explain how the potential testimony of McClain was inconsequential, not enough to tip the scales and that the lack of corroboration made it unreliable. Up until this point, the State had spent the entirety of its time with the Court discussing whether Gutierrez rendered deficient assistance on the alibi issue. My notes don’t reflect an explicit question on prejudice- was this mistake so serious that there was a substantial possibility that the result would have been different? To me, the State’s remark actually underscored the potential prejudice of Gutierrez’s failure. If McClain’s account was now the only evidence that Syed was in the library, her testimony was all the more critical, assuming it was credible. In the same way that a defendant may be convicted based on the word of one witness, if believed, so might he be exonerated by the word of one witness. Moreover, though this is mere speculation and thus cannot meet the Petitioner’s burden of persuasion in post conviction, if the McClain alibi had been properly investigated at the time, there very well may have been additional information that would have substantiated the alibi, but that opportunity would erode with the passage of time. On the other hand, the State would argue that it’s just as likely that evidence contradicting the alibi would develop. The State took its seat without ever discussing the issue the State raised on appeal and the basis for the post conviction court’s grant of a new trial, whether Gutierrez was ineffective for failing to cross examine the State’s expert with the fax cover sheet disclaimer.

Next up was C. Justin Brown arguing for Syed. The conversation likewise began with a discussion of the deficiency prong on the alibi claim. Brown began by pointing out that McClain’s letter contained a phone number, which made it easy to contact her to follow up. In other words, calling a local phone number does not require much in the way of resources of time or money. Once again, Judge Graeff asked the first question. This time she asked if it was ever reasonable to not contact an alibi witness and posed a hypothetical in which the alibi witness’s version of events was entirely inconsistent with the Defense’s theory of the case. Brown responded that a defense attorney must always investigate an alibi witness for two reasons, because “all the cases say so” and because “as a defense attorney, you gather information, you keep your options open, it’s a fluid process…” Judge Graeff continued to pose questions and at one point appeared to be drilling down on the factual timeline and challenging whether the post conviction court’s findings were accurate. When once again questioned about whether it was ineffective to fail to investigate an alibi if it conflicted with the Defense’s theory, Brown responded, “The defense doesn’t have a theory until the defense starts trial. Up until that point, the defense has a duty to investigate.” So here Brown was challenging the notion that a defense theory of the case should ever be so solidified pretrial that it shouldn’t be subject to adjustment based on new facts as they develop in the course of preparation for trial. Judge Graeff further pressed the issue and posed a hypothetical about a defendant who claims that he was in Maryland and an alibi witness who pops up and says the defendant was in California. Judge Graeff questioned Brown about the viability of a blanket rule that required an attorney to always investigate every potential alibi witness. During this exchange, Judge Wright weighed in and pointed out that the public library was located about 100 yards from where Syed’s “alibi by habit” located him and that the public library was not California. Judge Wright was pointing out that maybe the alibi wasn’t inconsistent with the defense theory at all. Judge Graeff then pivoted and asked, if it was a minor inconsistency, did challenging Gutierrez on her choice to not explore this angle overstep the bounds of deference that should be given to defense counsel that the presumption of competence requires. Brown responded that a strategic decision may only be made after (not before or without) investigation.

According to my notes, it was now 2:40, 40 minutes into argument, when Chief Judge Woodward explicitly broached the subject of prejudice with Brown. Chief Judge Woodard asked how to evaluate the impact of the alibi evidence in the context of the rest of the evidence which could be described as overwhelming. Brown took issue with the characterization of the State’s evidence.

Waiver, the issue that I find most interesting as a practitioner, finally came up at 2:45. When asked why the issue wasn’t waived because it was not raised in the initial post conviction petition, Brown posed two alternate positions. First, that the issue was not waived under Curtis, as the post conviction court found because Syed was not aware of the issue until after the first post conviction. Second, because the Court of Special Appeals sent the case back without ruling on the claims (referring to the first Application for Leave to Appeal), the petition could be supplemented with additional claims. The Court expressed concern, through several questions, that no issue would ever be waived and that a Petitioner could continue to add claims. Courts are often concerned with the finality of judgment because of the limited resources of the court and the potential bottleneck of cases created by defendants repeatedly and perpetually challenging their convictions. Brown pointed out that there are no limits on the number of Motions to Reopen that a person may file. Because a petitioner may raise ineffective assistance of post conviction counsel, the law does not, in fact, limit the challenges a defendant may make to his conviction. Chief Judge Woodard seemed unpersuaded on the waiver issue.

With about 4 minutes remaining in his time, the Court turned to the deficiency prong of the cell tower location data claim. Once again, Judge Graeff, who was probably the most active member of the bench during argument, began the questions. She wondered whether the long delay in finding and using the fax cover sheet disclaimer, 15 years, indicated that it was not unreasonable to not have used it during trial, that it was simply too difficult to find and use the way Syed was now arguing that it should have been. In response, Brown pointed out that the State removed the cover sheet disclaimer from the rest of the records to which it applied and that the State’s expert, who testified about the interpretation of the cell tower evidence, never saw it. Judge Wright asked if pointing out that the incoming calls were not reliable for location, meant that trial counsel would be conceding that outgoing calls were reliable for location, thereby hurting the defense. Brown pointed out that the State identified the location associated with the two incoming calls as the crux of their case.

When the State was once again at the podium for rebuttal, the Court directed him to focus on the prejudice analysis of the alibi claim. The State responded that the alibi did not impact the heart of the State’s case. After some back and forth between Judge Wright, the State, and Judge Graeff on the issue, Chief Judge Woodard posed a critical question. He asked the State whether the State was bound by its assertion of the time of death made in opening and closing statements. He then asked a more pointed question, ‘when assessing prejudice, don’t we have to go with what the State is saying to the jury?’ (paraphrasing based on my notes). No, the State responded. ‘We should look at the evidence and not the State’s theory.’ According to the State, Gutierrez was not concerned about what happened 20 minutes after school. She was concerned about the the evening. In response to Judge Graef’s question about the relevance of the timing of the murder and its prejudicial impact, the State asserted that the jury was entitled to wrestle with the incongruities of the case. In other words, if the State’s theory of the case conflicted with some of the evidence, it was up to the jury to work it out. Though this may be accurate, post conviction analysis necessarily entails some degree of speculation. It is important to note, as Brown pointed out, the petitioner’s burden of persuasion. It is not beyond a reasonable doubt. It is something less than a preponderance of the evidence. What that means is that Syed must prove that his attorney rendered ineffective assistance by a standard that is less than a preponderance of the evidence, less than what is necessary to assign fault in a civil fender bender case. That doesn’t make it an easy burden to meet of course, most petitioners are unsuccessful in establishing ineffective assistance of counsel. At 3:11, the waiver issue finally came up. This was the State’s first opportunity to argue the claim that he raised before the Court. Here is where I would say the State gained the most traction with the Court. Argument continued on this subject until 3:16.

So what are the takeaways here? Anyone who has discussed the case has noted the obvious, the court was troubled by Gutierrez’s failure to investigate the alibi claim. The lion’s share of their questions focused on that. The prejudice analysis, unfortunately, was not as thoroughly hashed out. The Court’s conversation with the State on rebuttal was where the issue was given the most time. The court’s questions suggested that they viewed the State’s asserted time line as significant. It’s an interesting issue, how to assess prejudice. As a defense attorney, I believe we must look to the totality of the circumstances because the State isn’t just presenting facts chronologically or at random, the State isn’t simply conveying information. The State and the defense shape the narrative and tell a story. It’s impossible to pull apart the evidence from the narrative.

The Court of Special Appeals will issue a written opinion some time in the future. There is no time limit, but usually the Court takes anywhere from 3 months to a year. I would expect the losing side to file a Petition for Writ of Certiorari to the Court of Appeals. Maryland’s highest court has a choice of which cases to take, similar to the United States Supreme Court. If either party files for Cert and the court takes the case, then there will be oral argument again before all of the judges of the Court of Appeals. If that happens, those arguments will be webcast live and anyone with an internet connection can see.