Petition for Writ of Certiorari — Adnan Syed, Petitioner v. Maryland
Supreme Court briefAug 19, 2019
Ask Donna
What actually matters in this document.
Text
No. 19-____
IN THE
Supreme Court of the United States
_________
ADNAN SYED,
Petitioner,
v.
STATE OF MARYLAND,
Respondent.
_________
On Petition for a Writ of Certiorari to the
Maryland Court of Appeals
_________
PETITION FOR A WRIT OF CERTIORARI
_________
C. JUSTIN BROWN
BROWN LAW
1 Charles Street
Suite 1301
Baltimore, Maryland 21202
(410) 244-5444
brown@cjbrownlaw.com
CATHERINE E. STETSON
Counsel of Record
JAMES W. CLAYTON
KATHRYN M. ALI
KATHERINE B. WELLINGTON
W. DAVID MAXWELL
MICHAEL J. WEST
HEATHER A. BRIGGS
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
cate.stetson@hoganlovells.com
Counsel for Petitioner
QUESTION PRESENTED
Whether a court evaluating prejudice under Strickland v. Washington, 466 U.S. 668 (1984), must take
the State’s case as it was presented to the jury, as
ten state and federal courts have held, or whether
the court may instead hypothesize that the jury may
have disbelieved the State’s case, as the Maryland
Court of Appeals held below.
(i)
ii
PARTIES TO THE PROCEEDING
Adnan Syed, petitioner on review, was the appellee
below.
The State of Maryland, respondent on review, was
the appellant below.
iii
RELATED PROCEEDINGS
All proceedings directly related to this petition
include:
State v. Syed, No. 199103042-046 (Md. Cir. Ct.
June 6, 2000), aff’d, No. 923, Sept. Term, 2000
(Md. Ct. Spec. App. Mar. 19, 2003), cert. denied,
No. 107, Sept. Term, 2003 (Md. June 20, 2003)
(reported at 376 Md. 52)
Syed v. State, No. 10432 (denied Md. Cir. Ct.
Dec. 30, 2013), stayed by No. 2519, Sept. Term,
2013 (Md. Ct. Spec. App. May 18, 2015); remanded to No. 10432 (Md. Cir. Ct. June 30,
2016) (reported at 2016 WL 10678433), aff’d,
No. 1396, Sept. Term, 2016 (Md. Ct. Spec. App.
Mar. 29, 2018) (reported at 236 Md. App. 183),
rev’d, No. 24, Sept. Term, 2018 (Md. Mar. 8,
2019) (reported at 463 Md. 60)
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED........................................... i
PARTIES TO THE PROCEEDING ............................ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES ....................................... vi
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 2
CONSTITUTIONAL PROVISION INVOLVED ........ 2
INTRODUCTION ........................................................ 2
STATEMENT .............................................................. 5
A. Factual Background ......................................... 5
B. Procedural History ......................................... 10
REASONS FOR GRANTING THE PETITION ....... 13
I. THE DECISION BELOW CREATES A
CLEAR SPLIT AMONG ELEVEN STATE
AND FEDERAL COURTS ................................... 13
II. THE DECISION BELOW IS WRONG ............... 23
III.THE QUESTION PRESENTED IS
IMPORTANT ....................................................... 29
IV. THIS CASE IS A CLEAN VEHICLE TO
ADDRESS THE QUESTION PRESENTED ...... 32
CONCLUSION .......................................................... 33
APPENDIX A—Court of Appeals of
Maryland’s Opinion
(Mar. 8, 2019) .................................................... 1a
APPENDIX B—Court of Appeals of
Maryland’s Order Denying Motion for
Reconsideration (Apr. 19, 2019) ................... 103a
v
TABLE OF CONTENTS—Continued
Page
APPENDIX C—Court of Special Appeals of
Maryland’s Opinion (Mar. 29, 2018)............. 105a
APPENDIX D—Circuit Court for Baltimore
City’s Memorandum Opinion II (June 30,
2016) .............................................................. 258a
APPENDIX E—Circuit Court for Baltimore
City Evidentiary Hearing Transcript
(Feb. 3, 2016) (excerpts) ................................ 333a
APPENDIX F—Circuit Court for Baltimore
City Trial Transcript (Feb. 10, 2000)
(excerpts) ....................................................... 339a
APPENDIX G—Circuit Court for Baltimore
City Trial Transcript (Dec. 15, 1999)
(excerpts) ....................................................... 344a
vi
TABLE OF AUTHORITIES
Page(s)
CASES:
Adams v. State,
348 P.3d 145 (Idaho 2015) ...................... 4, 14, 18
Alcala v. Woodford,
334 F.3d 862 (9th Cir. 2003) ............................. 27
Avery v. Prelesnik,
548 F.3d 434 (6th Cir. 2008) ............................. 27
Bobby v. Van Hook,
558 U.S. 4 (2009) ............................................... 25
Browning v. Baker,
875 F.3d 444 (9th Cir. 2017) ............................. 28
Caldwell v. Lewis,
414 F. App’x 809 (6th Cir. 2011) ................. 26, 32
Elmore v. Ozmint,
661 F.3d 783 (4th Cir. 2011) ..................... passim
Fisher v. Gibson,
282 F.3d 1283 (10th Cir. 2002) ............... 4, 14, 21
Grant v. Lockett,
709 F.3d 224 (3d Cir. 2013)....................... passim
Griffin v. Warden, Md. Corr. Adjustment Ctr.,
970 F.2d 1355 (4th Cir. 1992) ........................... 26
Grooms v. Solem,
923 F.2d 88 (8th Cir. 1991) ............................... 26
Hardy v. Chappell,
849 F.3d 803 (9th Cir. 2016),
as amended (Jan. 27, 2017) ...................... passim
Henry v. Poole,
409 F.3d 48 (2nd Cir. 2005) .................... 3, 13, 19
vii
TABLE OF AUTHORITIES—Continued
Page(s)
In re Sharrow,
175 A.3d 1236 (Vt. 2017) ................... 4, 14, 18, 19
Montgomery v. Petersen,
846 F.2d 407 (7th Cir. 1988) ............................. 26
Penson v. Ohio,
488 U.S. 75 (1988) ....................................... 26, 30
Polk County v. Dodson,
454 U.S. 312 (1981) ........................................... 30
Porter v. McCollum,
558 U.S. 30 (2009) ....................................... 24, 25
Raygoza v. Hulick,
474 F.3d 958 (7th Cir. 2007) ............................. 26
Rompilla v. Beard,
545 U.S. 374 (2005) ........................................... 25
Skakel v. Comm’r of Corr.,
188 A.3d 1 (Conn. 2018) ............................ passim
Stewart v. Wolfenbarger,
468 F.3d 338 (6th Cir. 2006) ..................... passim
Stitts v. Wilson,
713 F.3d 887 (7th Cir. 2013) ................... 4, 14, 20
Strickland v. Washington,
466 U.S. 668 (1984) ................................... passim
United States v. Nixon,
418 U.S. 683 (1974) ........................................... 30
Wearry v. Cain,
136 S. Ct. 1002 (2016) ............................. 5, 24, 28
CONSTITUTIONAL PROVISION:
U.S. Const. amend. VI ............................ 2, 19, 29, 31
viii
TABLE OF AUTHORITIES—Continued
Page(s)
STATUTE:
28 U.S.C. § 1257(a) ................................................... 2
IN THE
Supreme Court of the United States
_________
No. 19_________
ADNAN SYED,
Petitioner,
v.
STATE OF MARYLAND,
Respondent.
_________
On Petition for a Writ of Certiorari to the
Maryland Court of Appeals
_________
PETITION FOR A WRIT OF CERTIORARI
_________
Adnan Syed respectfully petitions for a writ of certiorari to review the judgment of the Maryland Court
of Appeals in this case.
OPINIONS BELOW
The Maryland Court of Appeals’ opinion is reported
at 204 A.3d 139 (2019). Pet. App. 1a-102a. That
court’s order denying reconsideration is not reported.
Pet. App. 103a-104a. The Maryland Court of Special
Appeals’ opinion is reported at 181 A.3d 860 (2018).
Pet. App. 105a-257a. The Circuit Court for Baltimore City’s opinion is not reported but is available at
2016 WL 10678434 (June 30, 2016). Pet. App. 258a332a.
(1)
2
JURISDICTION
The Maryland Court of Appeals entered judgment
on March 8, 2019. Petitioner filed a timely motion
for reconsideration, which was denied on April 19,
2019. Chief Justice Roberts granted a 30-day extension of the period for filing this petition to August 19,
2019. This Court’s jurisdiction is invoked under 28
U.S.C. § 1257(a).
CONSTITUTIONAL PROVISION INVOLVED
The Sixth Amendment, U.S. Const. amend. VI,
provides:
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have
been committed, which district shall have
been previously ascertained by law, and
to be informed of the nature and cause of
the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of
Counsel for his defence.
INTRODUCTION
Petitioner Adnan Syed was a 17-year-old high
school senior when he was charged with the murder
of Hae Min Lee. He hired Cristina Gutierrez, a wellknown Baltimore attorney, to prepare his defense.
His attorney faced a significant challenge: Prosecutors alleged that Syed killed Lee right after school,
between 2:15 and 2:35 p.m. But few of Syed’s classmates could remember Syed’s activities right after
school on the day Lee was killed. Indeed, only two
3
teenagers could testify on that issue: The first—Jay
Wilds—said that Syed showed him Lee’s body in the
trunk of a car shortly after school. The second—Asia
McClain—said that she talked to Syed at the library
adjacent to the high school between 2:15 and 2:35
p.m. that day, and that others could corroborate her
story.
In a normal case, it would be left to the jury to determine who is credible: Wilds or McClain. In this
case, however, the jury never heard McClain’s testimony. Unbeknownst to Syed, Gutierrez failed to
contact McClain and never followed up on McClain’s
offer to identify other witnesses who saw Syed at the
library at the time of the murder. Instead, Gutierrez
argued that because Syed attended track practice on
most days after school, he likely did the same on the
day that Lee was killed. The jury was unconvinced,
and it convicted Syed of murder.
The facts of this case are eye-catching: One high
school student murdered and another sentenced to
life in prison. A prosecution witness with an inconsistent story and an alibi witness who never testified
at trial. Syed’s case has inspired podcasts, a documentary, and countless news articles. This petition,
however, is about a straightforward legal issue: the
proper standard for evaluating prejudice under this
Court’s decision in Strickland v. Washington, 466
U.S. 668 (1984).
To evaluate Strickland prejudice, at least ten state
and federal courts apply a simple approach: They
compare the case that the State actually presented
at trial with the case that the defendant would have
presented if his attorney had been effective. See, e.g.,
Henry v. Poole, 409 F.3d 48, 65-66 (2nd Cir. 2005);
4
Grant v. Lockett, 709 F.3d 224, 236-238 (3d Cir.
2013); Elmore v. Ozmint, 661 F.3d 783, 868-871 (4th
Cir. 2011); Stewart v. Wolfenbarger, 468 F.3d 338,
361 (6th Cir. 2006); Stitts v. Wilson, 713 F.3d 887,
888, 894-895 (7th Cir. 2013); Hardy v. Chappell, 849
F.3d 803, 823 (9th Cir. 2016), as amended (Jan. 27,
2017); Fisher v. Gibson, 282 F.3d 1283, 1309-10 (10th
Cir. 2002); Skakel v. Comm’r of Corr., 188 A.3d 1, 70
(Conn. 2018); Adams v. State, 348 P.3d 145, 152
(Idaho 2015); In re Sharrow, 175 A.3d 1236, 1241
(Vt. 2017).
Under this majority approach, Gutierrez’s deficient
performance prejudiced Syed. The case that the
State presented at trial repeatedly pinned the time of
death to a narrow window between 2:15 and 2:35
p.m. to fit Wilds’ testimony and Syed’s cell phone
records. The case that Syed would have presented at
trial had his counsel been effective included testimony from McClain, who testified in post-conviction
proceedings that she spoke with Syed at the library
during the exact time that the State alleged Lee was
killed. Had these conflicting narratives been presented to the jury, “there is a reasonable probability
that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
In the decision below, however, the Maryland
Court of Appeals rejected this majority approach.
Instead of analyzing the case that the State actually
presented at trial, the court hypothesized a different
case, one where the jury rejected the State’s theory of
the time of Lee’s death in favor of some unpresented
and unknown alternative timeline. According to the
Maryland Court of Appeals, because McClain’s
5
testimony did not undermine this hypothetical
case—where Lee’s death might have occurred later
in the day—the failure to present McClain’s testimony about Syed’s activities after school did not prejudice Syed’s defense. The Court buttressed that
conclusion with references to the State’s evidence of
Syed’s alleged activities after the murder occurred.
But see Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016)
(per curiam) (holding that murder conviction cannot
rest solely on evidence suggesting that the defendant
“may have been involved in events related to the
murder after it occurred”).
This case presents a clean vehicle to address an
important question that now divides the state and
federal courts: whether courts must take the State’s
case as it was presented to the jury when evaluating
Strickland prejudice. The answer to that question is
yes. Under Strickland, courts must evaluate prejudice in light of the case the State actually introduced
at trial, not a hypothetical case that sidesteps the
weaknesses in the State’s presentation of the evidence. The Court should grant certiorari and reverse.
STATEMENT
A.
Factual Background
Hae Min Lee, a student at Woodlawn High School
in Maryland, disappeared on the afternoon of January 13, 1999. Pet. App. 261a. Nearly a month later,
her body was found partially buried in Baltimore
City’s Leakin Park. Id. The cause of death was
strangulation. Id. Following an anonymous tip,
police arrested Syed and charged him with murder,
among other charges. Id.
6
At the time, Syed was 17 years old and a student at
Woodlawn High School. Lee and Syed had dated on
and off, and prosecutors believed that Syed had
killed Lee in retribution for ending their relationship. Id. at 112a. Prosecutors alleged that shortly
after school on January 13, Syed had driven Lee to a
Best Buy, killed her in the parking lot between 2:15
and 2:35 p.m., and left her body in the trunk of the
car. Id. at 112a-113a; see id. at 215a-216a. Prosecutors further alleged that Syed and Wilds had buried
Lee’s body later that night in Leakin Park. Id. at
113a.
Syed hired Gutierrez as his attorney. Id. at 109a
n.2. In preparing Syed’s defense, Gutierrez confronted a significant obstacle: Few of Syed’s classmates
had any memory of Syed’s whereabouts right after
school on the day Lee was murdered. Syed’s classmate Asia McClain was the exception: She remembered speaking with Syed at the library between 2:15
and 2:35 p.m. on the day Lee disappeared. See id. at
183a-184a. McClain sent two letters to Syed stating
that she could provide an alibi, that other people also
remembered seeing Syed at the library, and that the
library had a surveillance system. See id. at 184a189a. In the letters, McClain included her phone
number and address, and said that she would be
willing to speak with Syed’s attorney. See id. Syed
told Gutierrez about McClain’s letters and asked
that she contact McClain. See id. at 179a. Gutierrez
never did. See id. at 180a.
7
Syed’s first trial ended in a mistrial, and the State
tried Syed again. See id. at 112a n.5.1 At his second
trial, just like the first, the State’s theory of the case
was that Syed killed Lee within a 20-minute window
after school on January 13. See id. at 112a-113a; see
also id. at 216a. The State alleged that Syed left
school with Lee shortly after classes ended at 2:15
p.m., drove in her car to the parking lot of a Best
Buy, and then killed her. Id.; see also id. at 271a.
The State claimed that Syed then called Wilds at
2:36 p.m.—just 20 minutes later—and asked to be
picked up. Id. at 271a. Based on this timeline, the
State argued to the jury that Lee was dead by sometime “between 2:15 p.m. and 2:35 p.m.” Id. at 113a.
The State repeatedly emphasized this timeline to
the jury. In its opening statement, the State theorized that Lee was killed around “2:35, 2:36” when
Wilds received a call from Syed asking him to come
to the Best Buy. Id. at 221a; see also id. at 271a n.9.
The State was equally explicit at closing: Lee “was
dead 20 to 25 minutes from when she left school” at
around 2:15 p.m. Id. at 272a n.9; see also id. at 222a
(“Ladies and gentlemen, she’s dead within 20
minutes.”). Not once during trial did the State
present evidence—or even bare argument—that Lee
had died later that day. See id. at 99a-100a (Hotten,
J., concurring in part and dissenting in part).
At Syed’s trial, the State relied on Wilds, an admittedly “problematic” witness, to corroborate its theory
1
At Syed’s first trial, a juror overhead the judge, during a
bench conference, refer to Syed’s trial counsel as a “liar,” and
the judge declared a mistrial. See Pet. App. 345a.
8
of the case. Id. at 226a-227a & n.41. Before trial,
Wilds gave police multiple, inconsistent statements
about the day Lee disappeared. See id. at 226a-227a.
And at trial, Wilds admitted under oath that he had
repeatedly “lied” to police. Id. at 340a-343a (transcript of Wilds’ testimony).2 Wilds ultimately testified that on January 13, “Syed had complained of Ms.
Lee’s treatment of him and said that he intended ‘to
kill that bitch.’ ” Id. at 36a; see also id. at 30a. Wilds
testified that Syed called him in the afternoon on
January 13 and asked for a ride, and that when he
arrived at the Best Buy parking lot, Syed showed
him Lee’s body in the trunk of her car. Id. at 30a31a, 36a. And Wilds testified about what happened
next: According to Wilds, he and Syed buried Lee’s
body in Leakin Park around 7 p.m. See id. at 119a121a.
2
Q. “Okay. Now, let us then go back to the first interview, the
one where there was no tape. Did you provide them information about the location of the car?” A. “No, ma’am.”
Q. “Now, so you sort of lied by omitting it, did you not?”
A. “Yes, ma’am.” Q. “Okay. And did you provide them information about seeing the body in the trunk?” A. “I don’t believe
so.” Q. “You don’t believe so. So, you lied about that too,
right?” A. “Yes, ma’am.” Q. “Okay. And or at least what you
said at first was very different then what you said next, right?”
A. “In the second time.” Q. “And in fact, you first told them
nothing about Jen Pusateri, right?” A. “Yes, ma’am.” * * * *
Q. “So you continued – and that was a lie, right?” A. “No, it
was not the truth, you’re right.” Q. “It wasn’t, so yes it was a
lie?” A. “Yes, ma’am.” Q. “Okay. And so you lied in the first
statement about that and you continued to lie in the second
statement about the same thing, right?” A. “Yes, ma’am.” Pet.
App. 340a-341a.
9
In addition to Wilds’ testimony, the State presented
evidence that Syed’s hand print was found on a map
book in Lee’s car. The page from the map book
containing Leakin Park had been ripped out. See id.
at 36a. The State also introduced records of incoming cell phone calls that, according to the State,
showed that Syed was within the vicinity of Leakin
Park around 7 p.m. See id. at 29a-30a.3 A number of
witnesses testified to seeing Wilds and Syed together, or speaking with them by cell phone, on the day
Lee disappeared. See id. at 36a.
Syed’s attorney never interviewed McClain, and
thus did not present her testimony at trial. Syed’s
trial counsel instead relied on evidence of Syed’s
typical school day to argue that he was at track
practice and then his mosque on the afternoon Lee
was killed. See id. at 266a-267a. Syed’s counsel also
argued at trial that Syed and Lee ended their relationship amicably, and that the police had wrongly
focused on Syed without pursuing evidence that
would have shown his innocence. See id. at 266a.
The jury did not credit these arguments, and it
convicted Syed of Lee’s murder. Id. at 267a. Syed
was sentenced to life in prison. Id.
3
In the proceedings below, Syed argued that his attorney was
ineffective for failing to challenge the cell tower records, which
stated on the cover page that incoming calls did not provide
accurate location information. See Pet. App. 307a-308a. The
Circuit Court agreed and granted a new trial on this basis. See
id. at 328a. The Maryland Court of Appeals, however, held that
Syed waived this claim by failing to raise it earlier. See id. at
49a-51a.
10
B.
Procedural History
Syed challenged his conviction through postconviction proceedings, which were initially unsuccessful. See id. at 108a-110a. In 2015, however, the
Circuit Court for Baltimore City reopened those
proceedings to take evidence on two issues:
(1) whether Syed’s trial counsel was ineffective for
failing to contact McClain, and (2) claims related to
the reliability of using records of Syed’s incoming cell
phone calls as evidence of his location. See id. at
109a.
McClain testified at an evidentiary hearing, stating
that “she saw Petitioner at the Woodlawn Public
Library on January 13, 1999 at about 2:15 p.m. and
spoke to him for about twenty minutes before leaving
with her boyfriend.” Id. at 287a; see also id. at 336a338a (transcript of McClain’s testimony). According
to McClain, then, she was with Syed at the exact time
that the State alleged that Lee was killed. See id. at
287a; see also id. at 113a.
In response to McClain’s testimony, the State presented—for the first time—a new theory of Lee’s
death. According to the State’s newly revised timeline, Syed could conceivably have committed the
murder after 2:35 p.m. and then called Wilds later in
the afternoon to pick him up from the Best Buy
parking lot. See id. at 271a-272a n.9. The Circuit
Court rejected the State’s attempt to change the
timeline, explaining that the “trial record is clear”
that the State committed to its theory that Lee died
between 2:15 and 2:35 p.m., and that Syed called
Wilds at 2:36 p.m. from the Best Buy parking lot to
request a ride. Id. The court explained that the
“State’s newly adopted timeline” is “incongruent”
11
with the evidence it presented at trial, including
Wilds’ testimony about the events following the
murder. Id.
The Circuit Court found that Syed’s counsel was
deficient for failing to contact McClain, but it found
no prejudice. According to the court, “the crux of the
State’s case” was that Syed “buried the victim’s body
in Leakin Park at approximately 7:00 p.m.” Id. at
289a. Because McClain’s testimony did not undermine this aspect of the case, the court held that trial
counsel’s deficient performance did not prejudice
Syed. Id. at 289a-290a. The court ultimately granted Syed a new trial, however, finding that his attorney was ineffective for failing to challenge as unreliable the location evidence from Syed’s incoming cell
phone calls. See id. at 328a.
The Maryland Court of Special Appeals granted
review. The court agreed that Syed’s trial counsel
was deficient for failing to contact McClain. Id. at
216a-217a. It concluded, however, that this constitutionally incompetent performance had prejudiced
Syed’s defense. The court explained that McClain’s
“testimony would have directly contradicted the
State’s theory of when Syed had the opportunity and
did murder” Lee. Id. at 228a. The court “analyze[d]
the prejudice prong relating to McClain’s alibi testimony based on the State’s timeframe of [Lee’s]
murder: between 2:15 p.m. and 2:35 p.m. on January
13, 1999.” Id. at 224a. As the court explained,
“McClain’s testimony, if believed by the trier of fact,
would have made it impossible for Syed to have
murdered” Lee. Id. at 230a. The Court of Special
12
Appeals affirmed the Circuit Court’s judgment on
that basis.4
The Maryland Court of Appeals granted review. In
a 4-to-3 decision, it reversed. A majority of the court
agreed that Syed’s trial counsel was deficient for
failing to contact McClain, but it found no prejudice.
Id. at 25a-27a, 37a. Instead of evaluating the State’s
case as it was presented to the jury—which repeatedly placed Lee’s time of death between 2:15 and 2:35
p.m.—the Maryland Court of Appeals held that “the
jury could have disbelieved that Mr. Syed killed Ms.
Lee by 2:36 p.m.” Id. at 33a-34a. The court concluded that McClain’s testimony would not have undermined this hypothetical case, where the jury did not
believe the State’s evidence with respect to the time
of death but still believed that Syed committed
murder, because McClain’s alibi did not account for
“Syed’s whereabouts after 2:40 p.m.” Id. at 34a. The
majority also emphasized that McClain’s testimony
did not rebut evidence of “Syed’s actions on the
evening of January 13,” when the State alleged that
Syed and Wilds had buried Lee’s body. Id. at 37a.
Three judges dissented. The dissent emphasized
that under Strickland, the majority should have
analyzed the State’s case as it was presented to the
jury, rather than hypothesizing that the jury may
have accepted a theory of the case that the State
never presented. As the dissent explained, the
“State posited that Ms. Lee was killed between
4
The Court of Special Appeals held that Syed had waived his
claim with respect to the cell-tower evidence by failing to raise
it earlier. Pet. App. 169a-170a. The Maryland Court of Appeals agreed with that conclusion. See id. at 49a-50a.
13
2:15PM and 2:35PM.” Id. at 97a (Hotten, J.). The
majority’s prejudice analysis, in contrast, rested on
its assumption that “the jury could still conclude that
Mr. Syed killed Ms. Lee, but at a different time.” Id.
at 99a (Hotten, J.). This assumption “blatantly
conflicts with the post-conviction court’s holding”
that the State was not free to adopt a new timeline
after trial. Id. at 99a-100a (Hotten, J.). More importantly, “[t]he possibility that Ms. Lee was killed
at a different time was not offered before the judge
and jury during trial.” Id. The dissent criticized the
majority’s “unsubstantiated opinion that the jury
could create and believe a timeline other than the
original one posited to them at trial,” and that it was
proper to use such a timeline when analyzing Strickland prejudice. Id. at 100a (Hotten, J.) (quoting
Strickland, 466 U.S. at 695, for the proposition that
the court must analyze “the totality of the evidence
before the judge or jury” (emphasis added)).
The Maryland Court of Appeals denied Syed’s motion for reconsideration. This petition follows.
REASONS FOR GRANTING THE PETITION
I.
THE DECISION BELOW CREATES A
CLEAR SPLIT AMONG ELEVEN STATE
AND FEDERAL COURTS.
The decision below creates a clear split. At least
ten state and federal courts analyze Strickland
prejudice by leaving “undisturbed the prosecution’s
case” and “analyzing the evidence that would have
been presented had counsel not performed deficiently.” Hardy v. Chappell, 849 F.3d 803, 823 (9th Cir.
2016), as amended (Jan. 27, 2017); see also Henry v.
Poole, 409 F.3d 48, 65-66 (2nd Cir. 2005); Grant v.
14
Lockett, 709 F.3d 224, 236-238 (3d Cir. 2013); Elmore
v. Ozmint, 661 F.3d 783, 868-871 (4th Cir. 2011);
Stewart v. Wolfenbarger, 468 F.3d 338, 361 (6th Cir.
2006); Stitts v. Wilson, 713 F.3d 887, 888, 894-895
(7th Cir. 2013); Fisher v. Gibson, 282 F.3d 1283,
1309-10 (10th Cir. 2002); Skakel v. Comm’r of Corr.,
188 A.3d 1, 70 (Conn. 2018); Adams v. State, 348
P.3d 145, 152 (Idaho 2015); In re Sharrow, 175 A.3d
1236, 1241 (Vt. 2017).
In contrast, the Maryland Court of Appeals holds
that a court is not required to “leave undisturbed the
prosecution’s case,” Hardy, 849 F.3d at 823, but may
instead assume when assessing Strickland prejudice
that the jury disbelieved the State’s case. See Pet.
App. 34a-35a. Under such a standard, prejudice is
far more difficult—if not impossible—to show: If the
jury could imagine a way around the weaknesses in
the State’s case, then defense counsel’s failure to
expose those weaknesses is not prejudicial. This
straightforward division in authority on an important question of federal law warrants the Court’s
intervention.
1. The Fourth, Sixth, and Ninth Circuits, joined by
the high courts of Connecticut, Idaho, and Vermont,
have explicitly held that to analyze prejudice under
Strickland, courts must compare the case that the
State actually presented to the jury with the case
that would have been presented to the jury had
defense counsel been effective.
In Elmore, the Fourth Circuit explained that courts
must take “the State’s evidence of guilt” as the “jury
heard” it when evaluating prejudice under Strickland. 661 F.3d at 868, 870-871. Courts must then
compare the State’s case to what the “jury would
15
have learned” had defense counsel been effective. Id.
at 870-871. In the murder trial at issue in Elmore,
the “jury heard” that the victim could have died at
any time during a 60-hour window. Id. at 870. Had
counsel conducted an adequate investigation, however, “the jury would have learned that death on Sunday afternoon, when [the defendant] had a corroborated alibi, was much more probable than death on
Saturday night.” Id. Comparing the State’s case as
it was presented to the jury—that the murder occurred during a 60-hour window—to the defense’s
case as it would have been presented—that the
murder occurred during a short window when the
defendant had an alibi—the Fourth Circuit found
Strickland prejudice. See id. at 871-872.
The Sixth Circuit adopted the same approach in
Stewart, stating that to evaluate Strickland prejudice, the court must analyze “[t]he difference between the case that was and the case that should
have been.” 468 F.3d at 361. In Stewart, a prosecution witness testified that the defendant came to the
house he was visiting shortly before the murder and
“stated he was going to kill the victim.” Id. at 344.
In “the case that was,” the defendant had no credible
alibi witnesses. See id. at 360 (noting that the
defendant’s sole alibi witness at trial was impeached). In “the case that should have been,”
however, the jury would have heard from two credible alibi witnesses who contradicted the State’s case.
See id. at 345 (describing testimony); id. at 359
(stating that alibi witnesses would have added
“substance and credibility” to the defense (internal
quotation marks omitted)). The difference between
these two cases led the court to conclude that trial
16
counsel’s deficient performance prejudiced the defendant. Id. at 361.
In Hardy, the Ninth Circuit applied the same test
for Strickland prejudice. There, the Ninth Circuit
explained that Strickland calls for courts to “leave
undisturbed the prosecution’s case” when “analyzing
the evidence that would have been presented had
counsel not performed deficiently.” 849 F.3d at 823.
This analysis, the court cautioned, does not leave
courts free “to reimagine the entire trial.” Id. In
particular, it does not permit courts to “presume the
State would have altered the entire theory of its case
in response” to the new evidence or “invent arguments the prosecution could have made if it had
known its theory of the case would be disproved.” Id.
at 823-824. Instead, the court must “only envision
what [defense counsel] should have presented in [his
client’s] defense and determine how that would have
altered the trial.” Id. at 823.
Applying that approach to the facts, the Ninth Circuit found prejudice. At trial, the State alleged that
the defendant had participated in a murder-for-hire
plot, relying on a witness to corroborate its case. Id.
at 820. Consistent with its theory of the case, “the
State would have called” the witness “to the stand to
testify” that the defendant committed the murder.
Id. at 823. If the defendant’s trial counsel had been
competent, however, defense counsel “would have
cross-examined” the witness and uncovered evidence
that the witness “was the actual killer.” Id. Because
this “would have completely undermined the prosecution’s theory of the case” as it was presented at
trial, the Ninth Circuit found that counsel’s deficient
performance prejudiced the defendant. Id. at 821.
17
The Connecticut Supreme Court, too, evaluates
Strickland prejudice by considering “the theory the
state advanced at trial.” Skakel, 188 A.3d at 42.
Indeed, the court emphasizes that its obligation is
not to “consider the evidence in the light most favorable to the state,” but instead to conduct “an objective review of the nature and strength of the state’s
case.” Id. at 25.
In Skakel, the State claimed that the defendant
had murdered the victim within a short period of
time. Id. at 13. At trial, family members of the
defendant provided an alibi for a significant portion
of that period. Id. at 12. The State claimed that
these witnesses were not credible because they were
related to the defendant. Id. at 12-13, 38. Competent counsel, however, would have uncovered an alibi
witness who was not related to the defendant, enabling the defendant “to refute this central thesis of
the state’s case against him.” Id. at 38-39. Because
a prospective alibi witness directly contradicted the
State’s case, the Connecticut Supreme Court held
that failure to present this witness’s testimony
prejudiced the defendant. See id. at 33.
In stressing the importance of alibi testimony to a
jury, the Connecticut Supreme Court cited as authority the Court of Special Appeals decision in this very
case—the decision that was reversed by the Maryland Court of Appeals below. See id. at 43. The
Connecticut Supreme Court also cited the decisions
of numerous other courts that had reached similar
conclusions. See id. at 42-44 (collecting cases). The
Skakel court concluded that where there is “no
unassailable evidence establishing the petitioner’s
guilt,” the defendant is “inherently or necessarily”
18
prejudiced where his attorney fails to investigate
“independent alibi testimony.” Id. at 44.
The Idaho Supreme Court employed the same
Strickland analysis in Adams. There, the court
explained that “to determine whether counsel’s
errors prejudiced the trial’s outcome, it is essential to
compare the evidence actually presented to the jury
with the evidence that may have been presented had
counsel acted differently.” 348 P.3d at 152 (emphases added). Adams concerned a vehicular manslaughter trial where the State presented evidence
that the defendant was driving at breakneck speed
and crashed in a distinctive manner. Id. at 149-150.
Had defense counsel been competent, she would have
introduced an expert witness who would have testified that the defendant was not driving as fast as the
State claimed. See id. at 155. The defendant’s
expert admitted, however, that the defendant could
have been driving nearly as fast as the State
claimed, and the expert did not contradict that the
defendant had been driving fast enough to crash in
the distinctive manner alleged by the State. See id.
at 155-156. Because the State’s theory of the case
remained unaffected by the omitted evidence, the
Idaho Supreme Court concluded that the defendant
was not prejudiced by his counsel’s poor performance. Id. at 156-157.
In Sharrow, the Vermont Supreme Court adopted
an identical test, stating that analyzing Strickland
prejudice requires examining “the trial as it actually
unfolded.” 175 A.3d at 1241 (internal quotation
marks omitted). Sharrow was an attempted-murder
case where defense counsel had failed “to object to
jury instructions that did not require that the State
19
prove the absence of passion or provocation * * * and
did not include attempted voluntary manslaughter
as a lesser offense.” Id. at 1237. But “record evidence” from the trial as it actually unfolded suggested that the defendant had been provoked. Id. at
1242. Because this record evidence could support a
different outcome, the court found prejudice under
Strickland. See id. at 1242-43.
2. The Second, Third, Seventh, and Tenth Circuits
apply—but do not explicitly voice—the majority
approach.
In Henry, the Second Circuit pegged its prejudice
analysis to the case that the State “presented to the
jury.” 409 F.3d at 66-67. The defense counsel in that
case had elicited an alibi for the wrong date. Id. at
64. The court analyzed the prejudicial effect of this
mistake by first isolating the “evidence presented to
the jury” that “connect[ed]” the defendant to the
crime. Id. at 66. The court then assessed how the
State capitalized on the false alibi: The State used it
to “argue[ ] to the jury that the entire attempt at an
alibi defense” was a sham. Id. at 67.
But had
counsel been effective, the State would have been
unable to “bolster[ ]” its case by challenging the
defendant’s credibility in presenting an alibi for the
wrong day. Id. at 66. The Second Circuit concluded
that the defendant’s “Sixth Amendment right to the
effective assistance of counsel at trial was violated.”
Id. at 67.
The Third Circuit followed a similar path in Grant.
709 F.3d at 236. In that case, defense counsel failed
to discover that the prosecution’s key witness was in
violation of his parole at the time of the crime—a fact
suggesting that he may have been “treated favorably
20
by[ ] the Commonwealth in exchange for his cooperation.” Id. at 234-236. To determine whether this
omission affected the trial, the Third Circuit examined the case that the prosecution had presented to
the jury: The prosecution’s witness “was the only
witness to identify [the defendant] as the shooter”
and, in fact, the prosecution rested its case “squarely
on the jury’s assessment of” the witness’s “credibility
and absence of bias.” Id. at 236. Had defense counsel uncovered the witness’s potential bias, the witness’s “credibility would have been significantly
impugned.” Id. at 237. The court thus concluded
that “[g]iven the omission of that crucial evidence of
a possible bias, the confidence in the verdict is greatly undermined.” Id. at 238.
In Stitts, the Seventh Circuit also evaluated prejudice by analyzing “the prosecution’s case” as it was
presented to the jury. 713 F.3d at 894. There, “the
prosecution’s case rested entirely on the testimony of
two somewhat unreliable witnesses.” Id. The State
argued at closing that “no witness had contradicted”
this testimony. Id. (internal quotation marks omitted). Defense counsel, however, had unreasonably
failed to investigate an alibi defense. Id. at 892-894.
Had defense counsel been competent, the court
explained, “the trial would have been transformed
from a one-sided presentation of the prosecution’s
case into a battle between competing eyewitness
testimony.” Id. at 894. In light of the difference
between those two cases—the one that the State
presented and the one that the defense should have
presented—the court concluded that defense counsel’s deficient performance had prejudiced his client.
Id. at 895.
21
The Tenth Circuit has adopted the same approach.
In Fisher, the Tenth Circuit evaluated Strickland
prejudice in a capital case where defense counsel had
failed to conduct an adequate investigation. 282
F.3d at 1293-1298. The court found that the State
“fail[ed] to present evidence” against the defendant
on several aspects of the case, while defense counsel
“could have, but did not, present available evidence
or arguments in his client’s favor.” Id. at 1309
(emphasis omitted). In short, the Tenth Circuit
compared the State’s case as it was presented to the
jury against the case that the defendant would have
presented, had his counsel been effective. The court
found prejudice and granted a new trial. Id. at 1311.
3. In the decision below, the Maryland Court of
Appeals rejected the majority approach of ten state
and federal courts. It did not take “the State’s evidence of guilt” as the “jury heard” it, Elmore, 661
F.3d at 870-871, or base its analysis on “the theory
the state advanced at trial,” Skakel, 188 A.3d at 42.
Nor did it consider “[t]he difference between the case
that was and the case that should have been.”
Stewart, 468 F.3d at 361. And it plainly did not
“leave undisturbed the prosecution’s case” and then
“analyz[e] the evidence that would have been presented had counsel not performed deficiently.”
Hardy, 849 F.3d at 823.
The court instead performed a completely different
analysis: It assumed that the “jury could have
disbelieved that Mr. Syed killed Ms. Lee by 2:36
p.m., as the State’s timeline suggested.” Pet. App.
34a (emphasis added). In other words, the Maryland
Court of Appeals rejected the theory of the case
presented by the State, and the evidence that the
22
State introduced to support its theory, in favor of a
hypothetical case in which Syed killed Lee at a
different time of day (and possibly in a different
place). The Maryland Court of Appeals did not cite
any record evidence to support its hypothetical case;
the time of death was undisputed by both the State
and Syed at trial. See id. at 97a (Hotten, J.) (noting
that Syed did not dispute the State’s timeline at
trial).
The difference between the majority rule and the
approach adopted by the Maryland Court of Appeals
is outcome-determinative in this case: If the Maryland Court of Appeals had compared the case that
the State actually presented to the jury (which
pinned the time of death to a 20-minute window)
with the case that Syed would have presented to the
jury (which placed him elsewhere during that time),
the Maryland Court of Appeals would have found
prejudice. Instead, the court compared a case that
the State did not present (where the murder was
committed at a different time) with the case that
Syed should have presented to the jury (which addressed his whereabouts at a time when, in this
hypothetical case, the murder was not committed).
It is no wonder, then, that the Maryland Court of
Appeals found no prejudice. See Hardy, 849 F.3d at
823 (the court is not free to “reimagine” the trial or
“invent arguments the prosecution could have
made”). If a court evaluating prejudice is permitted
to hypothesize theories never presented to the jury in
response to the defendant’s “case that should have
been,” Stewart, 468 F.3d at 361, counsel’s incompetence could in all of the above cases have been found
to be non-prejudicial. The court in Elmore, for ex-
23
ample, could have surmised that the murder occurred outside even the 60-hour window. The court
in Stewart could have conjectured that the jury
would not find credible the new alibi witnesses. The
court in Hardy could have theorized that there would
have been rebuttal evidence to resurrect the credibility of the State’s key witness. The court in Skakel
could have shifted the time of the murder to a time
when there were no alibi witnesses. And so on, for
each and every case.
4. The Court should grant certiorari and resolve
this clear split, which affects 11 state and federal
courts. Numerous state and federal courts have
explicitly adopted a legal standard for Strickland
prejudice that directly conflicts with the position
espoused by the court below. The split, moreover,
extends to the Connecticut Supreme Court, which
relied on the Maryland Court of Special Appeals
decision in this case—the very decision reversed by
the Maryland Court of Appeals below—to find Strickland prejudice under markedly similar facts. Skakel,
188 A.3d at 43. This Court’s intervention is warranted.
II.
THE DECISION BELOW IS WRONG.
Ten state and federal courts determine Strickland
prejudice by comparing the case that the State
presented to the jury against the case that would
have been presented to the jury had defense counsel
been effective. Only the Maryland Court of Appeals
holds that a court may ignore the State’s actual case
in favor of a hypothetical case that (according to the
court) the jury instead may have believed. And the
Maryland Court of Appeals placed itself not just
24
opposite ten of its brethren, but opposite this Court,
in so holding.
The Court of Appeals further compounded this
error by focusing on the State’s case after the murder
occurred, rather than on the State’s case with respect
to the murder itself, when assessing Strickland
prejudice—in direct conflict with this Court’s decision in Wearry.
1. A defendant suffers prejudice if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. To
determine whether this standard has been met, a
court “must consider the totality of the evidence
before the judge or jury.” Id. at 695 (emphasis added). That includes examining the “factual findings,”
the “inferences to be drawn from the evidence,” and
the “entire evidentiary picture” in light of counsel’s
errors. Id. at 695-696. The court must also examine
the extent to which “the record” supports the verdict.
Id. at 696. In other words, the court must analyze
the evidence and arguments actually presented by
the parties to the jury—and compare it with the
evidence that would have been presented if counsel
had been effective—to determine whether the defendant suffered prejudice.
This Court has reiterated that standard in subsequent cases. In Porter v. McCollum, 558 U.S. 30
(2009) (per curiam), for example, the Court determined prejudice by comparing the evidence “adduced
at trial”—meaning what the “[t]he judge and jury * * * heard” and “learned”—with the evidence
25
competent counsel would have presented, meaning
what “the judge and jury would have learned.” Id. at
41 (emphasis added and internal quotation marks
omitted). In Bobby v. Van Hook, 558 U.S. 4 (2009)
(per curiam), the Court compared “the evidence of
the aggravating circumstance the trial court found”
with the evidence that a competent counsel would
have presented. Id. at 12-13. And in Rompilla v.
Beard, 545 U.S. 374 (2005), the Court compared the
mitigating circumstances “actually put before the
jury” with the mitigation case that should have been
presented. Id. at 393. In none of those cases did the
Court suggest that it was permissible to analyze
Strickland prejudice by assuming that the jury may
have rejected the State’s case in favor of a theory that
neither party presented.
Under the standard announced in Strickland, and
followed in subsequent cases, the Maryland Court of
Appeals was required to begin its prejudice inquiry
by assessing “the theory the state advanced at trial.”
Skakel, 188 A.3d at 42. As the Circuit Court held
below, the State presented evidence and repeatedly
argued that Syed killed Lee shortly after school let
out at 2:15 p.m. See supra pp. 7-8, 10-11; see also
Pet. App. 113a (“Central to the State’s theory was
that Syed murdered [Lee] between 2:15 p.m. and
2:35 p.m. * * * .”). This is the “evidentiary picture”
against which Strickland prejudice must be assessed,
and the Maryland Court of Appeals was required to
“leave undisturbed the prosecution’s case” when
conducting this analysis. Hardy, 849 F.3d at 823824.
The Maryland Court of Appeals failed to do so. It
did not take the State’s evidence of guilt as the “jury
26
heard” it. Elmore, 661 F.3d at 870-871. It instead
sketched an entirely different evidentiary picture
where the jury rejected the State’s case in favor of an
alternate time of death. But that is not the case that
the State presented, and it is not the case that Syed’s
counsel was tasked with rebutting. See Penson v.
Ohio, 488 U.S. 75, 84 (1988) (emphasizing that the
role of defense counsel is “to test the government’s
case”). By ignoring the case actually presented by
the State in favor of a hypothetical case that neatly
sidestepped Syed’s alibi, the Maryland Court of
Appeals erred.
Numerous courts have concluded “that when trial
counsel fails to present an alibi witness, the difference between the case that was and the case that
should have been is undeniable.” Caldwell v. Lewis,
414 F. App’x 809, 818 (6th Cir. 2011) (internal quotation marks, brackets, and citation omitted). See, e.g.,
Griffin v. Warden, Md. Corr. Adjustment Ctr., 970
F.2d 1355, 1359 (4th Cir. 1992) (reversing state court
finding of no prejudice where counsel failed to investigate alibi); Grooms v. Solem, 923 F.2d 88, 90-91
(8th Cir. 1991) (finding prejudice where counsel
failed to call disinterested alibi witness); Montgomery v. Petersen, 846 F.2d 407, 414-415 (7th Cir. 1988)
(finding prejudice for failure to call alibi witness
because “if believed by the jury, it would have directly exonerated [the defendant] of the crime”); Raygoza
v. Hulick, 474 F.3d 958, 965 (7th Cir. 2007) (“Obviously, a trier of fact approaching the case with fresh
eyes might choose to believe the eyewitnesses and to
reject the alibi evidence, but this trier of fact never
27
had the chance to do so. This undermines our confidence in the outcome of the proceedings * * * .”).5
Here, McClain’s testimony directly refuted the
State’s case with respect to when Syed allegedly
killed Lee. As the dissent stated below, “[n]ot only
does Ms. McClain’s alibi address the most integral
period of time in the case, it presents direct, not
merely circumstantial, evidence of Mr. Syed’s whereabouts during that time.” Pet. App. 98a (Hotten, J.).
No “other evidence was offered by the State that
would have refuted Ms. McClain’s testimony and
affidavits.” Id. The “State offered no eyewitness
testimony, or any other evidence for that matter,
putting Mr. Syed with Ms. Lee during the time of her
death, much less any direct evidence that Mr. Syed
caused the death of Ms. Lee.” Id. “Ms. McClain’s
alibi was direct, uncontroverted evidence that Mr.
Syed was elsewhere at the time of Ms. Lee’s death.”
Id. By failing to present McClain’s testimony to the
jury, Syed’s counsel prejudiced his defense. Syed is
entitled to a new trial.
2. When evaluating Strickland prejudice, moreover, the Maryland Court of Appeals was required to
examine the State’s case with respect to the murder
itself—not events occurring after the murder. This
5
See also Avery v. Prelesnik, 548 F.3d 434, 437-439 (6th Cir.
2008) (finding prejudice where “the jury was deprived of the
right to hear [alibi] testimony that could have supplied” reasonable doubt); Alcala v. Woodford, 334 F.3d 862, 872
(9th Cir. 2003) (concluding that if trial counsel had presented
alibi evidence, there is a reasonable likelihood that the jury
would have discounted eyewitness testimony and found that the
defendant could not have committed the crime).
28
Court made clear in Wearry that evidence a defendant “may have been involved in events related to the
murder after it occurred” may support a charge of
accessory after the fact—but it is not sufficient to
conclude that the defendant committed the murder
itself. 136 S. Ct. at 1006; see also Browning v. Baker,
875 F.3d 444, 469 (9th Cir. 2017) (citing Wearry for
the proposition that evidence suggesting that the
defendant may have been involved in a robbery
where a murder occurred is insufficient to show that
he—rather than someone else—“committed the
murder”). When evaluating the evidentiary picture
with respect to Syed’s murder charge, the Maryland
Court of Appeals was required to focus on the “evidence directly tying [the defendant] to that crime”—
not events that occurred later. Wearry, 136 S. Ct. at
1006.
In the decision below, however, the court did exactly what Wearry cautioned courts not to do: It emphasized events after the murder occurred, even
while minimizing the evidence with respect to the
murder itself. See Pet. App. 36a-41a. The Maryland
Court of Appeals posited that the “crux” of the
State’s murder case was Syed’s alleged participation
in burying Lee’s body, and held that in light of this
evidence, testimony with respect to Syed’s whereabouts during the murder would not change the
evidentiary picture. Id. at 37a-38a (internal quotation marks omitted). As this Court observed in
Wearry, however, the crux of a murder case is the
murder. See 136 S. Ct. at 1006. The failure of the
Maryland Court of Appeals to focus its prejudice
analysis on the State’s case with respect to Lee’s
murder is yet another reason to reverse.
29
III. THE QUESTION PRESENTED IS
IMPORTANT.
The question presented is important for at least
three reasons.
First, the standard for Strickland prejudice should
be uniform among the state and federal courts.
Whether defense counsel’s ineffective performance
prejudiced the defendant—requiring a new trial—
should not depend on the jurisdiction in which the
defendant is prosecuted. Ten state and federal
courts have adopted a consistent approach; the
Maryland Court of Appeals departed from that
approach. This Court’s intervention is warranted to
resolve the split.
The divergence in authority, moreover, is particularly acute in this case, where state and federal
courts in the same jurisdiction now apply different
legal standards. In the Fourth Circuit, which encompasses Maryland, courts must take the government’s evidence of guilt as the jury heard it when
evaluating Strickland prejudice. See Elmore, 661
F.3d at 868, 870-871. The Maryland Court of Appeals, in contrast, holds that a court may evaluate
whether “the jury could have disbelieved” the State’s
case when assessing prejudice to the defendant. See
Pet. App. 34a. This straightforward conflict between
courts within the same jurisdiction is plainly worthy
of the Court’s attention.
Second, “this Court has recognized that the Sixth
Amendment right to counsel exists, and is needed, in
order to protect the fundamental right to a fair trial.”
Strickland, 466 U.S. at 684. The decision below
undermines that right to counsel, so much so that it
hardly leaves a remaining right at all: It holds that
30
as long as a jury could hypothesize a way around a
flaw in the prosecution’s case, there is no prejudice
where an incompetent counsel failed to highlight
that flaw. If that were correct, however, only a
defendant with an airtight case would suffer prejudice from incompetent counsel. But it is precisely
the defendants whose chance of success is uncertain
who benefit most from competent representation. As
Strickland itself recognized, the question is not
whether the defendant would have been acquitted
outright absent counsel’s errors, but instead “whether there is a reasonable probability” that “the factfinder would have had a reasonable doubt.” Id. at
695.
The purpose of our system of litigation is to search
for truth through an adversarial presentation of the
evidence. This “system assumes that adversarial
testing will ultimately advance the public interest in
truth and fairness.” Polk County v. Dodson, 454 U.S.
312, 318 (1981). A fair trial is thus “one in which
evidence subject to adversarial testing is presented
to an impartial tribunal.” Strickland, 466 U.S. at
685. Where the evidence is conflicting—and the
truth is clouded—the adversarial process is crucial to
reaching a just result. Cf. United States v. Nixon,
418 U.S. 683, 709 (1974) (“The need to develop all
relevant facts in the adversary system is both fundamental and comprehensive.”). As this Court has
emphasized, “truth—as well as fairness—is best
discovered by powerful statements on both sides of
the question.” Penson, 488 U.S. at 84 (internal
quotation marks omitted). Indeed, “[t]he ends of
criminal justice would be defeated if judgments were
to be founded on a partial or speculative presentation
of the facts.” Nixon, 418 U.S. at 709.
31
In the decision below, the Maryland Court of Appeals ignored the role of adversarial testing in ensuring a fair trial. It sidestepped the case actually
presented to the jury, and instead asked whether the
jury may have believed a “speculative” theory of
Lee’s death that neither party alleged. In doing so, it
created a standard for prejudice that is virtually
impossible to meet: In a world where the jury may
simply ignore the weaknesses in the State’s case, no
defendant suffers prejudice when his counsel fails to
attack those weaknesses through an adversarial
presentation of evidence.
The Court should grant certiorari to affirm that the
right to counsel, enshrined in the Sixth Amendment,
relies on an adversarial presentation of the evidence
to a jury—not on a reviewing court’s analysis of a
hypothetical case devised years after the defendant’s
trial.
Third, the decision below significantly discounts
the importance of alibi witnesses, in clear conflict
with numerous state and federal courts. As the
Connecticut Supreme Court emphasized in Skakel, it
could not find a single case “in which the failure to
present the testimony of a credible, noncumulative,
independent alibi witness was determined not to
have prejudiced a petitioner” under Strickland. 188
A.3d at 42. “There are many cases, however, in
which counsel’s failure to present the testimony of
even a questionable or cumulative alibi witness was
deemed prejudicial in view of the critical importance
of an alibi defense.” Id.
This consensus reflects the unique power of alibi
testimony. A live witness telling the jury that the
defendant could not have committed the crime
32
because the witness saw him somewhere else is
potent evidence. As the Sixth Circuit has recognized,
“when trial counsel fails to present an alibi witness,
the difference between the case that was and the
case that should have been is undeniable.” Caldwell,
414 F. App’x at 818 (internal quotation marks,
brackets, and citation omitted). By permitting postconviction courts to circumvent alibi evidence, the
decision below substantially undercuts the broad
agreement among state and federal courts that alibi
evidence plays a crucial role in the courtroom. For
this reason, too, the Court should grant certiorari.
IV. THIS CASE IS A CLEAN VEHICLE TO
ADDRESS THE QUESTION PRESENTED.
This case presents a clean vehicle to address the
question presented. Both the Maryland Court of
Special Appeals, and the dissent below, followed the
majority approach to hold that Syed is entitled to a
new trial. Numerous state and federal court decisions, including in markedly similar cases, support
that conclusion. See, e.g., Skakel, 188 A.3d at 38-42
(collecting cases). The Maryland Court of Appeals
departed from the majority approach and found no
prejudice despite the failure of Syed’s counsel to
present an alibi witness for the exact time that the
State says he committed murder. There are no
vehicle problems to reaching the question at issue,
which has been briefed and argued throughout three
state courts. Syed should have the opportunity to
present his alibi to a jury, and the jury—not the
Maryland Court of Appeals—should decide its worth.
The Court should grant certiorari and reverse.
33
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
C. JUSTIN BROWN
BROWN LAW
1 Charles Street
Suite 1301
Baltimore, Maryland 21202
(410) 244-5444
brown@cjbrownlaw.com
CATHERINE E. STETSON
Counsel of Record
JAMES W. CLAYTON
KATHRYN M. ALI
KATHERINE B. WELLINGTON
W. DAVID MAXWELL
MICHAEL J. WEST
HEATHER A. BRIGGS
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
cate.stetson@hoganlovells.com
Counsel for Petitioner
AUGUST 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.