Ineffective Assistance of Counsel Part 3:

Most everyone has heard of the standard of proof in a criminal prosecution, “beyond a reasonable doubt.”  It is the highest standard of proof in our legal system.  It was the standard of proof that applied during Adnan Syed’s trial.  The State was tasked with persuading the jury that Mr. Syed was guilty, beyond a reasonable doubt and Mr. Syed was presumed innocent until the State satisfied its burden of proof.

That is NOT the standard that applies in post conviction.  In his post conviction, Mr. Syed is the “moving party,” meaning he is the party initiating the proceedings.  He has the burden of proof and not the State.  In the same way that he was supposed to be presumed innocent during his trial, his trial attorney is presumed competent, unless and until Mr. Syed persuades the post conviction court that his counsel was ineffective.  So how much proof does he need?

The Petitioner’s burden of persuasion on post conviction (also called the standard of proof and burden of proof) is set forth in Williams v. State, 326 Md. 367, 375 (1992).  It is something less than a preponderance of the evidence.  So, it’s clearly less than what is necessary to convict someone in a criminal prosecution.  But let’s put that into concrete terms. What is something less than a preponderance of the evidence? To quote the late, great, Fred Warren Bennett, a legend of the Maryland Criminal Defense Bar, it is less than what is necessary to assign fault in a civil fender bender case.

So in order to meet his burden and prevail, Mr. Syed must persuade the post conviction court that

  1. his trial attorney rendered deficient assistance with regard to her conduct in relation to the alibi witness, Asia McClaine; and/or
  2. his trial attorney rendered deficient assistance with regard to her conduct in relation to the cell phone data; and
  3. That there is a substantial possibility that he would not have been found guilty if his trial counsel had not made the mistakes alleged in 1 or 2.

To what extent does he need to persuade the judge of 1 or 2 resulting in 3, just how much proof does he need- less than a preponderance of the evidence.

Keep in mind, Mr. Syed does not need to succeed on both claims in order to prevail.  A finding of deficient assistance and prejudice with regard to one claim is enough to grant post conviction relief and order a new trial.  There is also case law that holds that the cumulative effect of trial counsel’s errors can be the basis for a finding of prejudice and the awarding of post conviction relief.  Thus, even if the court finds that, when considered individually, trial counsel’s mistakes do not result in prejudice to the petitioner, that all of counsel’s mistakes, when considered collectively, can demonstrate prejudice.

Brady issues, the test and standard are covered in a previous post.

Other logistics

How long does the court have to decide a post conviction?

The court does not have a specific time within which to make a decision following a hearing on a post conviction petition. The court could issue its decision, on the record, in court; or, more commonly, the court will issue a written decision some time after the hearing.  However, the court does not have a deadline.  Typically, the written decisions take a couple of months to issue.

What are the potential decisions that the court could make?

The court could deny relief finding either that counsel did not render deficient assistance; or, that even if counsel did render deficient assistance, that the mistake did not result in prejudice to Mr. Syed.

The court could grant post conviction relief on the basis of either claim or both.

If Mr. Syed wins his post conviction petition, his sentence and conviction are vacated and he gets a new trial.  A finding of ineffective assistance of counsel is not an exoneration.  Mr. Syed is placed back in the same position that he was in at the time he was initially charged.  The State can attempt to retry him if it wishes to do so.

Can the State or Mr. Syed Appeal?

If Mr. Syed wins, the State has 30 days to file an Application for Leave to Appeal  with the Court of Special Appeals, Maryland’s intermediate appellate court.  This is not the same as a direct appeal, the Court of Special Appeals can choose to take the case or not.  If it grant’s the Application, then case is usually set in for full briefing and oral argument and it is treated in a similar manner to a direct appeal.

If the State wins, Mr. Syed has the same right as the State as outlined above to file an Application for Leave to Appeal.

3 thoughts on “Ineffective Assistance of Counsel Part 3:

  • Thanks for the post.

    If the Petitioner’s burden is less than the standard required to convict, what position does this put the Prosecution in to refute the Petitioner’s arguments? Does the lower standard apply to both sides?

    • The State has no burden on post conviction, just as the defendant has no burden at trial. Either Petitioner meets his burden by this standard given everything that comes out at the post conviction or he doesn’t.

  • I am writing on behalf of my son which is now serving life all but 35 yrs for 1st degree attempted rape and sex offence. After my son’s sentencing, I requested an copy of his file from his atty and that’s when I found information that wasn’t shared with our son or ourselves regarding the case. I have interviewed couple of attorneys for post conviction and have gotten the same results. Since I was railroad from the first lawyer, I am just trying to make sure I select the right one for the post conviction. I don’t want to get another lawyer in Salisbury,md since they all seem to work together. Please contact me if interested. Thanks 443 859 2173.

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