Ineffective Assistance of Counsel:

I recently offered to try and answer questions on twitter regarding the post conviction proceedings in Adnan Syed’s case. I thought it might be helpful to answer some of the questions on my blog and provide some legal background.  I’m going to try and do this in multiple posts to make the information easier to digest and to keep you from glazing over.  As a caveat, I have not been present for the  multi-day hearing and I’m not totally informed on the evidence that has come out in court, but as most of you know- there is some fantastic coverage out there.  I’ve particularly enjoyed the coverage on the Frisky.

As I’ve explained in previous posts, a finding of ineffective assistance of counsel entitling a Petitioner to a new trial requires a finding of a serious mistake and prejudice.  So let’s start by talking about the first part, serious mistake, also known as deficient performance and the first prong of the two part test under Strickand v. Washington, 466 U.S. 668 (1984).  If the court concludes that the conduct at issue was the result of trial strategy (also referred to as a trial tactic), then the court will not find a mistake.  There are as many ways to try a case as there are lawyers.  The law wants to preserve an attorney’s ability to exercise their professional judgment and choose how to try a particular case.  However, if the conduct is shown to be “objectively unreasonable” within the context of that particular trial, then the conduct cannot be the result of trial strategy.  Feel like we’re going in circles here?  Maybe some examples will help.

Scenario 1: You are accused of first degree murder.  You have two possible defenses:

  1. You didn’t do it.  The State can’t prove it. The evidence implicating you is weak.
  2. You killed the victim, but it was self defense.

Your lawyer has the option of pursuing defense 1, defense 2, or both.  She weighs the pros and cons of each approach.  She looks at the evidence that supports each theory.  She realizes that if she is successful with defense 1, you get a not guilty and a full acquittal.  She realizes if she goes with defense 2 and is successful, you get a full acquittal, but if she is only partially successful, you could be found guilty of manslaughter and could serve as much as ten years.  Of course if either defense fails and you are found guilty, you could receive a life sentence.    She considers going with defense 1, but offering defense 2 as an alternative explanation. She wonders if she goes with both defense theories, whether the jury will doubt both theories since they essentially contradict each other.

After investigating and analyzing each option, she goes with defense 1.  She chooses not to pursue defense 2 as either a primary or alternative defense theory.  She thinks the evidence tying you to the crime is weak.  The State’s eyewitness isn’t credible.  The physical evidence is subject to multiple explanations.  She puts the State to their burden.  She challenges the State’s evidence. She thoroughly cross examines the State’s witness.  She fails.  You are found guilty of first degree murder and sentenced to life in prison.

Years later, you file a post conviction petition.  You argue that she was ineffective for failing to put forth a theory of self defense, which, if successful, would have resulted in a complete acquittal.  Your post conviction counsel calls her as a witness and she testifies to the facts laid out above. She investigated both options. She considered each. She made a strategic decision not to pursue defense 2 because she thought that you had a better chance with defense 1.  She was concerned that the jury would not buy a self defense theory because she thought you would make a terrible witness and you were a lot bigger than the victim. She chose not to pursue defense 2 as an alternate theory because she thought the jury would not believe, “It wasn’t me.  I didn’t do it.  But if you don’t believe that it wasn’t me, then it was self defense.”

Guess what the post conviction court will find on this claim?  The court will decide that the decision not to pursue a theory of self-defense was the result of trial strategy and not a mistake.  The court will deny post conviction relief on this claim.  You lose.

Scenario 2: You are accused of first degree murder.  You have two possible defenses:

  1. You didn’t do it.  The State can’t prove it. The evidence implicating you is weak.
  2. You killed the victim, but it was self defense.

You tell your lawyer that it was self defense.  You tell your lawyer that you knew the victim and were aware that he was a violent and aggressive guy with a hair trigger temper.  You tell her that there were witnesses to the incident and they will back up your version of events, that the victim attacked you and you were just defending yourself.  Your lawyer listens to you patiently.  She takes notes.  She tells you she will look into it.  But, she doesn’t.  Maybe she intends to, but time got away from her.  Maybe she was disorganized and forgot that she was supposed to look into the information.  Maybe she doesn’t really care about your case.  In any event, she fails to investigate, she fails to put on any evidence in support of a theory of self defense, and she does not ask the judge for a self defense instruction to the jury.  You are found guilty of first degree murder and sentenced to life in prison.

Years later, you file a post conviction petition.  You argue that she was ineffective for failing to put forth a theory of self defense, which, if successful, would have resulted in a complete acquittal.  You testify at the post conviction hearing to the facts above, that it was self defense, that you asked your lawyer to investigate, that you pointed her to witnesses who would confirm your version of events.  Those witnesses who you wanted to testify during your trial take the stand at your post conviction hearing.  Each one testifies that they were willing and available to testify in your defense, but no one ever contacted them.  They also testify as to the events on the night of the incident and explain how you were attacked by the victim and it looked like you were just trying to protect yourself.  Your former lawyer testifies that she never looked into the self defense angle.  She didn’t bother contacting the witnesses that you told her about.

Now you have some traction.  Your post conviction lawyer will argue that trial counsel’s failure to put on a theory of self defense was not the result of trial strategy.  It wasn’t a deliberate decision made after investigating the options and making an informed choice.  (In real life, the scenarios are usually a lot more muddy than in my examples, usually . . .)

So, in Mr. Syed’s case, he is arguing that his trial attorney made the following mistakes:

  1. That she failed to contact, investigate, or call (at trial), Asia McClain, the alibi witness.
  2. That if she had the information regarding interpretation of the cell tower, that she failed to hire an expert, failed to move to exclude the evidence, failed to properly cross examine the State’s expert, and failed to present evidence to the jury that would have helped Mr. Syed.

 The State has argued in the past and will probably do so again that the failure to call Ms. McClain was the result of trial strategy, i.e., that trial counsel made a deliberate, informed decision to not call her in line with the defense theory of the case.  The most obvious weakness in the State’s position is that one cannot make an informed decision without investigating the available options.  The law requires not only that trial counsel have a defense strategy, but it must be a sound one, an objectively reasonable one.  Completely ignoring a viable line of defense, particularly one that was consistent with the rest of the defense theory of the case, is not sound trial strategy in my opinion.  In other words, this was a serious mistake, particularly in the context of all of the evidence against Mr. Syed.

With regard to the cell tower information, assuming trial counsel had the fax cover sheet indicating that incoming call information could not be used to accurately pin point a user’s location, the caveat that the disclaimer applied to subscriber activity reports, and the other missing pages including the page that identified the document as a “subscriber activity report”- it’s difficult to imagine how the State could argue that this was an exercise of sound trial strategy.  I suppose they could try to argue that trial counsel was not that concerned about the cell phone data because she thought that the jury would be uninterested and find it confusing and that it was therefore not important to pay that much attention to it.  But, that would seem disingenuous.  The State argued in closing at trial and in a relatively recent interview that the cell phone information corroborated the key State’s witness.  On the one hand arguing that cell phone information was how the jury could know that the key State’s witness was believable, but arguing  on the other hand that it really wasn’t that important to investigate the cell phone evidence and challenge it- not a great position.

I will post separately regarding the prejudice prong, the burden of persuasion, and the post conviction process.

10 thoughts on “Ineffective Assistance of Counsel:

  • Thank you for your clear and balanced explanation of the salient points facing the judge. Looking forward to reading more of your posts on this case.

  • Thank you for breaking this down and explaining it in a way that even an agricultural biologist can understand 😉 I look forward to your future posts.

  • Thanks for this outstanding, very accessible explanation of the first prong of Strickland. I look forward to your explanation of the second prong (prejudice). Correct me if I’m wrong, but I get the impression that in Adnan’s case, the prejudice prong is the more difficult one to prove.

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