So in the trial, Jay was cross-examined a lot about his deal with the prosecutor. There was no secret that by testifying, he was getting a deal.
In the two appeals, Adnan trots out every technicality he can think of. Neither judge is buying what he’s trying to peddle, and neither am I.
Actually, I am surprised about how little Adnan’s lawyers had to complain about in the first appeal – that is a pretty weak set of appellate claims. Even if the appeals court had found error on all 4 claims (which it didn’t) – it’s hard for me to see how that would have overcome the “harmless error” threshold. Looks like Adnan had a trial before a pretty good – and very patient - judge who gave his counsel a tremendous amount of leeway.
Six weeks of testimony is a very long time! It was really for the jury to determine what they believed for the testimony. It sounds like for better or for worse, they did believe Jay about helping Adman bury Hae, no matter what else they did and didn’t
Interesting that professional publicity hound Prof. Dershowitz (I am not a fan to put it mildly) waded in a few weeks ago for team Adnan (Guardian UK).
@calmom, thank you for sharing your thoughts regarding Adnan’s guilt. When I read your comments it helps me make sense of all the information available to us.
The appellate judges are good about explaining how Adnan’s appeals would have to succeed: he’d have to show that his lawyer or the trial judge made a mistake AND he’d have to show that the mistake reasonably could have made a difference in the verdict. As far as I can see, the judges aren’t even buying that mistakes were made, let alone that they made a difference.
The Innocence Project:
"incentivized witnesses continue to testify in courtrooms around the country today. In some cases without biological evidence, the incentivized witness’ testimony is the only evidence of guilt.
Vital reforms are needed to ensure that unreliable incentivized witnesses are not given undue weight by juries."
@FlyMeToTheMoon – I am expressing opinions on the legal status of the case, not as to Adnan’s actual guilt or innocence. Legally, Adnan is guilty because a jury found him so – and my opinion is basically that nothing that was presented in The Serial broadcast would be the sort of revelation or new evidence that would result in overturning his original conviction.
I don’t have an opinion on the fact of guilt because I haven’t seen, hear, or read all the evidence. I’ve only heard the cherry-picked pieces of whatever the producers of the podcast chose to broadcast, and very recently read the opinions issued by the courts considering his appeal and post-conviction challenge.
@dstark - here’s a link to the actual written response filed by the prosecution: http://www.mdcourts.gov/cosappeals/pdfs/syed/responseoppositionleavetoappeal.pdf
In reading this I now understand why the appellate court is interested in the plea-bargain question. It presents an interesting case – one in which the law is unclear. Adnan testified at his post-conviction hearing that he asked his lawyer, Gutierrez, before both the first and second trial to inquire about a plea bargain. He also testified he would have been willing to consider a plea offer carrying a sentence of 20 to 30 years, though it’s not clear whether he claims he told the lawyer that at he time. He also testified that his attorney seemed to acknowledge that she would make such inquiries, and that the lawyer subsequently told him that the prosecution was no offering any deals.
Urick- the prosecutor – testified that the defense lawyer never approached him about a plea deal. He said that if she had, it would have set in motion a “process” that would have involved him conferring with the victim’s family and the state’s attorney (his boss). He also testified that he never in fact made any offer, because the defense didn’t raise the subject.
The law says that that a defense attorney has a duty to convey any offers actually made to her client, and also to provide competent legal advice so that the client can make an informed decision about the plea. However, under current law, that duty would only be triggered when an offer is made.
So it’s an interesting question, because according to Adnan, he asked his lawyer to explore the possibility of a plea arrangement, he would have considered an offer that was realistically possible, and his lawyer disregarded his request and lied to him. Of course the lawyer is dead and not able to respond to a claim first made a decade after her death.
I think that if Urick’s testimony had been different-- if he had said, for example, that he had told Gutierrez or the trial judge, “no deals” – then there would be no claim at all. It’s just that his testimony leaves open the door that there might have been an offer, if only it had been explored. So I can see why the appellate court requested a response on that issue.
I’d note that this scenario would be inconceivable in my state, where a pre-trial conference to discuss plea negotiations is always done-- and the judges generally make a note in the case file as to what the offer was – and usually try to push the parties toward resolution.
The prosecution response about the defendant maintaining his innocence is really irrelevant, because it’s very typical for defendants who claim innocence to later plead guilty. That’s the whole point of the presumption of innocence and fifth amendment right.
I personally find it doubtful that a 17 year old accused of a crime he didn’t commit would contemplate a sentence of 20-30 years, though a kid in that situation might very well agree to plead guilty to a reduced charge with a significantly lesser sentence – for example, a sentence of 5 years. On the other hand, I wouldn’t be surprised at all to encounter a guilty client who claims innocence, but is willing to consider a reasonable plea deal when offered – again, that’s actually a logical stance to take in a our system.
I also think it would be very remiss of a lawyer representing a 17 year old not to at least inquire as to the prosecution’s stance as to plea negotiations.
As to what the appeals court will do – I don’t know. I think the most likely outcome is that the appeals court will sustain the circuit court finding that Adnan’s testimony about the plea bargain request was not credible, because there is really no way to establish that any offer short of a life sentence would have been made. But it is troubling to me that the prosecutor confirms that the subject never came up.
Just as a point of clarification concerning the plea deal that Jay was given. The maximum penalty for the crime of accessory after a murder is 5 years. So the deal that Jay testified to (and was cross-examined extensively on) is essentially that he would plead guilty to the crime he admitted, and the prosecution would recommend leniency. As it happened, he was given probation rather than prison time – but the very worst case scenario for him, with no deals, would have been 5 years.
Of course, Jay could not have been convicted of anything without his own testimony, as there was no independent evidence of his involvement – nor could he have been prosecuted for a more serious offense-- again as there was no independent evidence to support a charge.
So yes, he got a good deal for testifying, but there is no indication of any incentive for him to come forward in the first place, and the deal he got was unremarkable.
Calmom, thanks for your posts.
I’d just add that even though I find the plea bargain issue intriguing, I don’t see how any court could sustain that sort of claim - or how it could possibly work to the benefit of Adnan in the long term. The logical remedy is to sustain the conviction but remand for resentencing – but the court could not compel the prosecution to offer a better deal if no deal was offered in the first place. So what happens if there is a remand and the prosecution says “sorry, no deals”? I’d guess that a defense lawyer might try to use the resentencing hearing as an opportunity to present favorable evidence about the defendant in the hopes of getting a lighter sentence… but that’s not going to result in a reduction of the charges overall. The complicating factors in Adnan’s case is that he was also convicted of false imprisonment and robbery-- that’s what leads to the “plus 30” part of his sentence. I don’t know what the evidence of “robbery” was-- perhaps taking Hae’s car was enough to sustain that charge? (Seems odd – but if you take the personal relationship out of the picture, it makes sense – if a criminal jumps into a car, forces the occupant to drive to the local Best Buy, strangles her to death, stuffs the body in the trunk, and takes off with the car – you’d certainly have the elements of all 3 crimes).
But it was remiss of the lawyer at the time not to explore a plea negotiation, if only to get something on the record. But she couldn’t have foreseen future Supreme Court holdings about plea bargaining. I guess some mistakes that lawyers make aren’t fixable.
Thanks, Calmom for your insights. They are very helpful.
Why is Asia doing this?
http://www.people.com/article/serial-witness-asia-mcclain-says-she-never-recanted
Her 15 minutes?
Legally, the affidavit is unhelpful. All it does is undermine the prosecutor’s argument, not the evidence. The friend on the wrestling team who talked to Hae after school would be more important-- her name is Deborah & she testified at trial that she saw Hae on campus, alive, at 3pm - so given her testimony it, a witness who now comes forward and says that she saw Adnan at 2:40 is useless. It’s worse than that, because Deborah also had given a statement to police saying that she had seen Adnan on campus at 2:45 – after the time Asia could testify to. She wasn’t questioned about that at trial, but as the circuit court pointed out, that was irrelevant, given that Deborah saw Hae after that. (This is from section IV of the Circuit Court opinion, starting at p. 13, linked above)
And no, I have no clue why the prosecutor would have argued that Hae was killed at a time before his own witness testified to seeing her alive.
So, why did the prosecuter present such a tight timeline? He really didn’t need such a tight timeline so why use the timeline? Was he worried about Jay?
I think some people can be persuaded that if the timeline doesn’t fit, you have to acquit. The jury is not made up of lawyers like yourself, calmom. 
The more I think about the case, the more I think Adnan did it.
Calmom, thanks for your comments regarding Asia’s recent affidavit. The reddit subforum is all abuzz with the belief that it will help Adnan, so it’s helpful to read your take on it.
Who knows why anyone does anything? Who knows what she said to Adman and his family and what they said to her and what she said to the prosecutor or anyone else. This is 15 years later–maybe SK’s story made her feel she should try again? Since she had an affidavit recanting, I’m not sure how much good her testimony would be at this point anyway.