Criminal defense lawyers back Syed before Md. high court

Adnan Syed entering Courthouse East in Baltimore last year (Barbara Haddock Taylor/The Baltimore Sun via AP, File)

Criminal defense counsel has an ethical duty to contact potential alibi witnesses identified by clients regardless of whether the testimony would fall within the lawyers’ trial strategy, many well-known Maryland defense attorneys argued this week in urging the state’s top court to order the retrial of convicted murderer – and podcast star – Adnan Syed.

“There is no gray area,” the attorneys stated in a brief filed with the Court of Appeals. “Counsel has a duty, not a choice, to make a diligent effort to contact the witness under such circumstances.”

In their brief, the lawyers urged the high court to affirm the intermediate Court of Special Appeals’ conclusion that Syed’s now-deceased trial attorney’s failure to investigate a potential alibi witness violated Syed’s constitutional right to effective assistance of counsel. The Court of Appeals in July accepted the state’s request to review the lower court’s ruling that the Sixth Amendment violation warrants a new trial for Syed, whose case gained international attention due to the “Serial” podcast.

The state has argued the Constitution does not require attorneys to chase down all potential alibis in defending their clients so long as they pursue a reasonable defense strategy. Syed’s appellate counsel has countered the uncontacted alibi witness, Asia McClain, has said she was with Syed at the time of the slaying.

The criminal defense lawyers, in their high-court brief supporting Syed’s position, said declining to contact such an alibi witness is never a reasonable defense strategy.

“(T)he true attack on any criminal defense lawyer’s reputation is to suggest he or she would consciously decline to contact an alibi witness identified by the client,” attorney Steven M. Klepper wrote on behalf of the Maryland Criminal Defense Attorneys’ Association, the Maryland Office of the Public Defender and 16  defense lawyers.

“Calling such a mistake reasonable, moreover, would undermine the duty of diligence, a pillar of the attorney-client relationship,” added Klepper, of Kramon & Graham P.A. in Baltimore. “To accept those arguments would do a disservice to defense attorneys and their clients throughout Maryland.”

The 16 individual defense attorneys represented in the brief are William C. Brennan Jr., Jerome E. Deise, Paul B. DeWolfe, Nancy S. Forstter, Andrew Jay Graham, Andrew D. Levy, Timothy F. Maloney, Paul F. Kemp, Michael Millemann, William H. “Billy” Murphy Jr., Larry A. Nathans, Stanley J. Reed, Stuart O. Simms, Joshua R. Treem, Arnold M. Weiner and Douglas J. Wood.

Klepper was joined in the brief by Louis P. Malick, of Kramon & Graham; Andrew V. Jezic, of Jezic & Moyse LLC in Wheaton; Erica J. Suter, of the Law Offices of Erica J. Suter LLC in Greenbelt; and Rachel Marblestone Kamins, of Offit Kurman in Maple Lawn.

The Court of Appeals is expected to hear arguments in the case in late November or early December and render its decision by Aug. 31, the final day of its current term. The case is State of Maryland v. Adnan Syed, No. 24, September Term 2018.

‘Deficient performance’

Syed was convicted in the 1999 murder of his ex-girlfriend, Hae Min Lee. He was sentenced to life in prison plus 30 years.

The “Serial” podcast examined whether Syed’s case was prejudiced because his trial attorney, the late M. Cristina Gutierrez, failed to contact McClain.

McClain has said she spoke to Syed at a public library in Woodlawn around the time prosecutors alleged he killed Lee, but McClain was not contacted to testify at trial.

Post-conviction proceedings were reopened based on an affidavit from McClain.

Baltimore City Circuit Judge Martin P. Welch ruled in 2016 that Gutierrez prejudiced Syed’s case by failing to contact McClain. The judge previously denied that argument in Syed’s first request for post-conviction relief in 2014, determining Syed’s trial attorney’s decision to not pursue McClain was part of trial strategy.

Syed’s conviction was vacated in 2016, a decision stayed pending the appeal by the Maryland attorney general’s office. The Court of Special Appeals upheld Welch’s 2016 ruling in a reported 2-1 decision in March.

“Trial counsel’s deficient performance prejudiced Syed’s defense, because, but for trial counsel’s failure to investigate, there is a reasonable probability that McClain’s alibi testimony would have raised a reasonable doubt in the mind of at least one juror about Syed’s involvement in Hae’s murder, and thus the result of the proceedings would have been different,” Court of Special Appeals Chief Judge Patrick L. Woodward wrote in the majority opinion joined by Judge Alexander Wright Jr.

Judge Kathryn Grill Graeff, in dissent, said Gutierrez “presented a vigorous defense of Syed in the face of strong evidence of guilt” and Syed did not show Gutierrez’s failure to contact McClain was proof of ineffective counsel.

“There may be good reasons for a reasonable attorney not to contact a potential alibi witness,” Graeff wrote. In Syed’s case, “defense counsel reasonably could have concluded that Ms. McClain’s testimony that she saw Syed at the public library after school, when Syed never before had mentioned the public library, could be harmful because it would give the State another inconsistency or omission in Syed’s statements to the police.”

Maryland Attorney General Brian E. Frosh has urged the Court of Appeals to reinstate Syed’s conviction with an argument that echoes Graeff’s dissent.

The Court of Special Appeals’ decision “implicates the scope of defense counsel’s Sixth Amendment obligations to investigate specific avenues that are different from, and potentially incompatible with, other potential defenses, threatening to dramatically broaden the work required by the Constitution and stripping them of the discretion and presumption of reasonableness with respect to which leads they pursue and which they forgo,” Frosh stated in papers co-signed by Thiruvendran Vignarajah, a special assistant attorney general.

But the criminal defense attorneys stated in their brief that the state’s argument would give them the “prerogative to decide not to take the brief time necessary to contact a willing, available alibi witness identified by the client. That idea, if accepted, would undermine criminal defense attorneys’ foundational responsibilities to their clients and erode basic principles of the attorney-client relationship.”

Syed is represented by C. Justin Brown, a Baltimore solo practitioner, and Catherine E. Stetson, James W. Clayton, Kathryn M. Ali and W. David Maxwell, of Hogan Lovells US LLP in Washington.