Ineffective Assistance of Counsel Part 2:

So let’s talk about prejudice and post conviction.  Yesterday’s post discussed deficient performance, a serious mistake, the first prong of Strickland.  The second part of the test involves “prejudice,”  and we’re not talking about the kind meant by #Oscarssowhite.  What does the case law say?

Under the second prong of the test, the petitioner must show that counsel’s deficient performance prejudiced the defense.   Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Mosley v. State, 378 Md. 548, 557 (2003).   More precisely, the individual must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Peterson, 158 Md. App. 558, 584 (2004) (quoting Strickland, 466 U.S. at 694).

So what does that mean?  The mistake must be so significant in the context of the entire trial, that there is a substantial possibility that if that particular mistake did not happen, the Petitioner may not have been convicted. By the way, if the court does not find trial counsel’s performance deficient, the inquiry ends there. The court doesn’t even consider prejudice.

So let’s turn to our example from yesterday. You are charged with first degree murder. Your lawyer failed to investigate, develop evidence, or request a jury instruction on self defense, despite your providing her with the information to prompt her to do so.  In analyzing your case, the post conviction court agrees with you, that seems like a pretty big screw up on the part of your trial attorney.  Now the court considers the prejudice prong. In the grand scheme of things, does this mistake matter?

Imagine that your trial is a sweater and the mistake is a loose thread in that sweater. You cannot win by simply identifying the loose thread and pointing it out to the court. So there was a loose thread? So what? The sweater is still holding together fine. In order to prevail, you have to grab that loose thread and pull and show what happens. Does the sweater remain intact or does it begin to fall apart.

Scenario 1

You were convicted of first degree murder and sentenced to life in prison.

The evidence that came out at trial included the following:

The State called several bystander eyewitnesses who testified similarly as follows- the attack on you had stopped. The victim had turned his back to you and was walking away when you closed the growing distance between you and began to assault the victim. You were arrested two days after the incident, were photographed, and made a statement. The officers who took your statement testified. You told police that you were tired of being bullied by this guy and you had been waiting for an opportunity to fix his wagon. The officer who photographed you following your arrest testified and the photographs were admitted at trial. Aside from some minor scratches, you appear relatively unscathed in the photographs. The medical examiner who conducted the autopsy of the victim testified at trial about the cause and manner of death of the victim. She testified in detail regarding the numerous wounds and injuries sustained by the victim and what she characterized as “defensive wounds” on the hands and forearms of the victim.

The post conviction court will likely conclude that though your attorney committed an error in failing to raise self defense, this error did not cause you to suffer prejudice. In other words, no harm, no foul. The court will conclude that even if your lawyer raised self defense, there was so much other evidence against you that you would have been found guilty any way. Of course you might argue that given the evidence against you, self defense was the only way that you stood a chance at trial. Odds are, you lose on this claim because you have failed to demonstrate prejudice.

Scenario 2

You were convicted of first degree murder and sentenced to life in prison.

The evidence that came out at trial included the following:

The State put on one bystander eyewitness. She was an elderly woman with failing eyesight who didn’t have the best vantage point. She testified that she believed that you instigated round 2 of the fight. You were arrested a couple of days after the incident and were photographed. You declined to make a statement. The post-arrest photographs, which were admitted at trial, appeared to show numerous bruises on your face and body, including bruising around your neck. The medical examiner who conducted the autopsy testified at trial. She concluded that the victim died as a result of blunt force trauma to the head, probably when the victim fell and hit his head on the concrete.

Arguably, you have a colorable argument that your attorney’s failure to raise self defense altered the outcome of your trial. Given the other evidence against you (and the available evidence in support of self defense that came out at the post conviction hearing), there is a substantial possibility that if your attorney raised self defense, you may not have been convicted of first degree murder.

With regard to Mr. Syed, he must demonstrate to the court, not only that his attorney made a mistake, but that mistake changed the outcome of his case. Thus, Mr. Syed must show that if trial counsel investigated the alibi, contacted the alibi witness, and called the alibi witness that he would not have been convicted.

Likewise, with regard to the cell tower information, Mr. Syed must demonstrate that, assuming she had the information, if trial counsel hired an expert, moved to exclude the evidence, and properly cross examined the State’s expert, and presented evidence to the helpful cell tower information to the jury, that he would not have been convicted.

Basically, Mr. Syed is tasked with proving the significance of his trial attorney’s errors in the grand scheme of things. One of the things that is interesting about these two claims is that they are interrelated as Mr. Syed has pointed out in his pleadings. Part of the reason why the State argued, in the past, that the failure to call the alibi witness didn’t matter is that the testimony of the key State’s witness was substantiated by the cell phone information. In other words, even if Ms. McClain had testified, the jury would not have believed her because the cell phone information was so damning. It was objective, unbiased proof that the State’s key witness could be believed.

I have not read the trial transcripts in Mr. Syed’s case. My knowledge of the evidence against Mr. Syed is based on my listening to the Serial podcast. So I’m not in the best position to give an opinion as to whether I think Mr. Syed will satisfy the prejudice prong. With that disclaimer in my mind, in my opinion, based on his pleadings and the evidence that has come out thus far, I think he has done it handily.

I will post soon regarding Mr. Syed’s burden of proof.  Understanding the burden of proof is key to understanding how the court analyses post conviction claims.

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