New Podcast "Serial"

Parent Cafe
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I think that the problem is that Serial gave people the case in bits and pieces. It wasn’t until I read the Circuit Court opinion that I realized that Deborah Warren had testified at trial to seeing Hae alive at 3pm:
http://www.mdcourts.gov/cosappeals/pdfs/syed/baltcityccmemorandumopinion.pdf

There’s a footnote int that opinion (#8, p. 14) that also makes it clear that the defense counsel was focused on that time line, using it to cross-examine other witnesses: “did you ever become aware that Debbie Warren, her friend, had seen her at about 3 p.m.?”

The problem with the “alibi” is that it hurts, rather than helps, Adnan: Asia is a 2nd witness, in addition to Deborah, who sees Adnan hanging around the general vicinity where Hae is seen at 3. That tends to support the idea that Adnan did indeed get a ride with Hae after school.

I really don’t get the prosecution’s timeline argument at all-- it just doesn’t fit the testimony of his witnesses. I think he might have been trying to get the times to match up with the cell tower ping records – but the ping locations aren’t accurate for incoming calls. I also think that the prosecutor was trying too hard to get the times for the calls to match up with the supposed Best Buy meeting spot – but it’s very possible that more time intervened between when Adnan called and when Jay met him. That is, Adnan’s call could have just as easily been “meet me at Best Buy in 20 minutes” as “come get me right now, I’m at Best Buy”.

But the prosecutor didn’t have to prove a timeline beyond a reasonable doubt, and the jury didn’t have to buy the time line the prosecution offered. They could go wherever the evidence took them – with evidence including witness testimony. They would have been specifically instructed that lawyer’s argument are not evidence. So I’m thinking that they know from Deborah that Hae was alive at 3pm – they are going to render their verdict based on the belief that Hae was killed sometimes after that.

The other problem with Asia is that she puts Adnan in the library at 2:40, whereas Deborah’s taped statement to the police put Adnan in the school building, near the guidance counselor’s office, at 2:45. So not only is Asia unhelpful as an “alibi”, her testimony is somewhat inconsistent with the witness who is likely to be given more credence by the jury. (Of course he could have been one place at 2:40 and another place at 2:45 … but then, what’s the point of the library testimony at all?)

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Calmom, I think the prosecuter should hire you if there is a retrial.

SK was really into the timeline. She did the ride to Best Buy to see if she could get there by 2:45? Something like that.

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It’s a tiny detail, but the library is on the school property, or at least so they said on the radio program. I’m not sure if the library is more than 5 minutes away from the guidance counselor’s office.

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Yes, the library is close, but the point is Asia says she lef the library at 2:40. At trial there was a witness who testifie that she saw Hae at the school at 3. That same witness (Deborah Warren) had also given a taped statement to the police that she had seen Adnan on school grounds at 2:45 – the defense did not ask her about that, but they did reference the Hae-alive-at-3 testimony when questioning other witnesses.

I don’t think the “alibi” works unless it covers a time that is after the time that Hae was last seen alive.

Maybe it makes for a good radio program, but as a trial lawyer I wouldn’t want to put on that sort of witness, because you don’t want to set up a defense that it easy for the jury to ignore. There are 12 people on the jury and if they spend any time at all on time lines, they are going to zero in on Hae alive at 3, so where Adnan was at 2:40 is irrelevant unless it can be tied to a continuous narrative that also covers at least through 3:15, preferably though 3:30.

I’d also add that I am very skeptical of Asia’s claim that nobody from the defense ever called her, given that she has demonstrated that she is very good at playing hard-to-get when she wants to. When the defense post-conviction relief team was trying to reach her for their collateral attack, she wouldn’t call them back and instead called Urick’s private law office. She talked to SK informally, but by her own account, when SK wanted to re-record her statement in a sound studio, she balked. At best she is flighty and inconsistent.

I don’t think the defense in 1999 would have anticipated ahead of trial that the prosecutor would argue that Hae was killed before 2:36 --I think they would have focused on the evidence that Hae’s disappearance was some time after 3.

@dstark – I’m not interested in helping the prosecution, but at a defense lawyer it was my job to anticipate the prosecution’s strategy In this case it isn’t even a matter of strategy – all of the evidence together looks like Adnan and Hae were both on school grounds as of 2:45. In a criminal trial, the defense doesn’t have to put on any witnesses or affirmative defense at all --putting on a defense that is full of holes can be worse than no defense, because then it sets up the jury to convict based on weaknesses in the defense case rather than focusing their attention on the strength of the prosecution case.

If there were to be a retrial, I think that the post-3pm time line will be the only thing in issue, as SK dug up a second witness who also saw Hae at 3 or later.

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http://www.usatoday.com/story/news/nation/2015/02/07/serial-syed-hae-min-lee/23040865/

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Maybe @calmom will come along and post her insights regarding this.

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Sure. This is the equivalent of the Supreme Court granting “cert” on a case – the court has agreed to hear the case. . They’ve set up a briefing schedule so the case will be argued in June. When courts have discretion-- that is the ability to choose whether to hear a case or not – they will often take a case in a situation where they think that there is a question of law to decide that will impact others.

From the way the case has played out on the legal end so far, the intriguing question --the one that the court asked for briefing on – is the extent of a defense attorney’s responsibilities for plea negotiations. The US Supreme Court has established that lawyers need to advise their clients about plea offers and also give them sound advice about the pros & cons – that is, if hypothetically in a murder case, the prosecutor offers to let the defendant plead guilty to 2nd degree murder --the lawyer can’t just simply scoff at that.

But what happens if the attorney doesn’t even explore the option at all? In my state, California – that would never happen because plea negotiations are built into the criminal justice system – in both civil and criminal cases, there is always a hearing date set sometimes close to, but prior to, trial, where the attorneys have to bring their clients to court and meet with the judge to discuss settlement (civil) or disposition (criminal) of the case. In state courts, the judges have the ability to make specific commitments in terms of sentences, and they can basically underbid the prosecution – that is, it is very conceivable that if I had been representing a youngster like Adnan, I could have walked into court and have a prosecutor holding out for 1st degree murder, and have a judge offer to accept a plea to 2nd – and not much the prosecution could do about it. (Note: in California the sentence for 2nd degree murder is a mandatory 15 years to life – the judge doesn’t have the ability to undercut a statutory penalty - so in that hypothetical it’s not as if the judge can simply offer probation).

Whether or not the defendant takes the plea, the prosecution’s offer and the judge’s offer is written down in the case file. Always. Federal practice is a little different, the judges aren’t supposed to be directly involved in plea-negotiation, but the pressures to plead in the federal system are huge - 97% of all federal prosecutions end with guilty pleas-- and I never tried a case in federal court.

The interesting thing to me in the Adnan case is that he could claim that he asked his attorney to explore a plea bargain and she didn’t follow up – and that the prosecutor could testify, as he did, that the defense lawyer never approached him and that a deal might have been entertained if she had. I mean, in my state it’s unthinkable that there wouldn’t be some discussion, even if it’s along the lines of one homicide case that I did: (Prosecutor: “we want a 1st degree murder conviction.” Defense: “We want a dismissal and an apology” )

So my hunch is that the appellate courts might want to fashion some sort of a rule. I would not be surprised to see some sort of decision that is adverse to Adnan but sets out a rule for for future cases that makes it clear that defense lawyers need to make a record of plea negotiations during the case. It happens sometimes: a court will announce a new rule, define a standard or a “test” – and then determine that the defendant didn’t meet the test and deny relief.

The reason I would anticipate an adverse decision is pragmatic: in the cases where there is a record of a plea offer and the defendant shows that the attorney gave him bad advice to reject it, the remedy has been go back and give the defendant the opportunity to accept that offer. But no offer? Harder to fashion a remedy.

But then again the lawyers in this case did everything the could to telegraph that they were aiming for 2nd degree murder in the post conviction relief hearing. They had Adnan testify that he would have taken that*, and they brought in a defense lawyer to testify that sort of offer would have been common in that type of case. So maybe that’s the remedy – remand and let the defendant plead to a 2nd degree murder – in Maryland the max for that is 30 years.

*I personally have never encountered a client who claimed innocence who would ever consider a deal like that and I would not have considered it ethical to advise a client to take such a deal unless they admitted guilt. Manslaughter, yes-- but 2nd degree murder, no. So I don’t believe the Adnan testimony about the plea.

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Thanks, Calmom. That was very very helpful. Just out of curiosity – in a situation like this, who makes the factual finding regarding the truth of Adnan’s assertion that he would have taken a second degree murder deal? It is obviously highly unusual for a Court of Appeal to make a factual finding. Would they remand the case for a hearing on that issue? Or does the truth of Adnan’s assertion that he would have accepted a second degree murder plea not matter in your analysis?

I’m still interested in the admission of guilt question. You mentioned up thread that there’s a form of guilty plea that does not require an admission of guilt – an Alford plea. But does the prosecution have to accept such a plea? Could the prosecution here say, “We never would have accepted an Alford plea, and Adnan’s vociferous insistence on his innocence in public forums makes his statement that he would have admitted guilt extremely suspect.”

(I’m a lawyer, but a civil litigator, and my criminal experience is limited to very discrete issues. I, along with many others, greatly appreciate your thorough analysis.

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The Baltimore circuit court made a factual finding that Adnan’s claims about his willingness to take a deal were not credible. That is the order he is appealing from - but ordinarily an appellate court will not disturb the factual finding of the trial court. So I am thinking that the appellate court is more likely to focus on the issue of whether the attorney had a duty to ascertain what the prosecutor was willing to offer, with or without the request or willingness of the client.

The prosecution doesn’t have to accept any plea – but a judge can generally accept a plea that the prosecution doesn’t like.

I have no clue as to how it would all play out if the appellate court were to rule that Adnan’s lawyer was ineffective because of failure to explore a plea bargain, given that it is impossible to know what the prosecution might have offered, what Adnan would have accepted, and what a judge would have sanctioned.

Again, it’s hard for me to predict because it’s hard for me to conceive of a situation where a defense lawyer does not ask at some point what the prosecution’s “offer” is. It certainly wouldn’t depend on whether or not the client has indicated willingness to consider a plea. I mean – can you imagine a civil case where you never talk to the other side about settlement?

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Ok…I am going to read the newer posts in a second…

On the lighter side…

https://m.youtube.com/watch?v=ATXbJjuZqbc

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Fact finding is for the trial judge hearing the matter. An appellate court will not disturb that finding unless there is NO evidence in the record to support it.

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“Undisclosed: The State v. Adnan Syed” to debut April 13

http://www.baltimoresun.com/features/baltimore-insider-blog/bal-new-podcast-coming-in-serial-case-20150406-story.html

Here we go!

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^^^
Not sure how interesting it will be without Sarah.

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Exactly. I don’t think a podcast from a strong advocate on behalf of Adnan will be all that interesting. When I saw that there was a new message in this thread, I was hoping it would be an announcement of the new season of Serial!

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Sorry to disappoint LOL. Rabia Chaudry spoke at my DD law school a few weeks ago and apparently was very interesting. Maybe Rabia will actually be doing the pod casting? I didn’t catch if they said who would actually be doing it.

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I thought I would give it a shot

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Most recent appeal result: http://www.thedailybeast.com/articles/2015/05/19/the-case-for-serial-s-adnan-syed-just-got-busted-wide-open.html?source=TDB&via=FB_Page

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Now we’re getting somewhere.

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The article in The Daily Beast misstates what has happened.

Here’s the court order if you want to read it::
http://www.courts.state.md.us/cosappeals/pdfs/syed/order20150518.pdf

Basically, the Court of Special Appeals (COSA) has remanded to the circuit court to allow Syed’s lawyer (Brown) to file the a petition there to reopen the case; the court can deny that motion, or it can grant the motion subject to whatever limitations it places.

So NO NEW HEARING has been ordered. But the appeal has been suspended while the matter is litigated before the same judge who heard the case and denied relief in 2012.

Here are some facts to add to the mix:

The petition for post-conviction relief was filed in May 2010, and a hearing was first scheduled later that year. That hearing was postponed roughly a dozen times until a 2-day hearing took place in October, 2012.

Syed’s lawyer (Brown) asked the circuit court for a document (certificate) to allow him to subpoena Asia McClain from the state where she was living. When the hearing finally took place, he stated to the court that he had wanted to bring Asia to court, but that she had evaded service of his subpoena – so it looks like the defense went to great expense to try to bring her to court and she went to great effort to avoid coming. I don’t know why the hearing was postponed for so many times over two years – but one possibility was that Brown was asking for more time to try to complete service of his subpoena. If that is the case (and I’m only speculating) then the judge probably will not be favorably disposed to allowing the case to be re-opened.

So the main result of this order is delay.

What will happen is this: Syed’s lawyer needs to file a new petition to the trial court. The state will have an opportunity to oppose the petition. The trial court can grant the petition, or deny the petition. If the trial court denies the petition, the matter comes back to the appellate court, and the appeal will be decided based on the existing record. If the trial court grants the petition, then there will be more hearings at some time in the future-- but it’s likely that the process will take years.

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Also, keep in mind the issue is presented in the context of an ineffective assistance of counsel claim. The witness’s flightiness may well have been the reason Adnan’s counsel did not call her to the stand. There are a lot of hurdles to get over here before the case can be considered broken wide open.

I don’t know about ineffective assistance claims to know how the lawyer’s death affects things here. That may be the factor that most helps Adnan, sadly, if she would have otherwise been allowed to provide an explanation for why the witness was not called.

The Daily Beast’s analysis is rubbish but it is probably right in one respect: Asia McClain’s willingness to submit the affidavit now is undoubtedly directly a result of the podcast.