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Ineffective Assistance of Counsel and Adnan Syed - What next?

What does ineffective counsel even mean?

In light of the highly popularized podcast, “Serial,” everyone is talking about whether Adnan Syed can sustain a legitimate ineffective assistance of counsel claim.  In “Serial,” Sara Koenig, an investigative journalist revisits a 1999 murder case from Baltimore, Maryland. Hae Min Lee, a high school student, disappears one day and is found murdered. The police arrest her ex-boyfriend Adnan Syed six weeks later.  After a mistrial and then a trial, he is later convicted on paper-thin circumstantial evidence. Recently, the Maryland Court of Special Appeals has agreed to hear arguments about why Adnan should either get a new trial, or some other remedy.

One basis of his appeal is an ineffective assistance of counsel claim. Adnan is claiming that his attorney, Cristina Gutierrez, failed to speak to Asia McClain a potential alibi witness and Ms. Gutierrez failed to seek a plea deal for him, even though he asked her to.  So, based on these alleged facts, as a young criminal defense attorney, I figured now would be a good time to learn a little bit more about this.

Taking it back to Criminal Law 101 in law school, we learned that under the Sixth Amendment, criminal defendants have a right to counsel.  Under federal case law, defendants are entitled to the effective assistance of competent counsel during plea negotiations. Just to keep things straight, keep in mind that plea negotiations themselves are not constitutionally guaranteed, but if the prosecutor puts one on the table, the defendant has the right to competent counsel once he is charged with a crime.

Since every defendant has a right to competent counsel in their plea stage, getting a sense of how the court analyzes competency will be helpful.

The United States Supreme Court, in Strickland v. Washington (1984), established a two-part test for a criminal defendant to establish a claim of ineffective assistance of counsel. Under this test, a criminal defendant must show: 1) counsel’s performance fell below an objective standard of reasonableness; and 2) counsel’s performance gives rise to a reasonable probability that, but for counsel’s ineffective performance, the outcome of the case would have been different.  The first prong looks at whether the attorney’s performance was deficient based on what other lawyers would think is acceptable.  For example, maybe your lawyer failed to interview your alibi witness and failed to order a DNA test on a bottle found near the crime scene. Based on this reasonableness requirement, similarly situated lawyers might not find this to be acceptable advocacy. If you have enough evidence to prove this prong, then you’ll move on to the second prong.  Here, you’ll have to show that your attorney’s actions hurt you and potentially changed the outcome of your case. This is the tricky one.  Generally speaking, there’s no guaranteed way to prove that what your attorney did or did not do would have changed the outcome of your case. Using my prior example, if you can show that your attorney’s failure to interview your alibi witness combined with their failure to test the bottle would have proven your innocence, you’re on the right path towards a strong argument.  Some relevant examples of when a court found ineffective assistance of counsel surrounding rejection of a plea offer are:

  • U.S. v. Day (2002): The attorney was found ineffective in a drug case for incorrectly advising the defendant that he would have to go to trial to argue that the government engaged in sentencing entrapment.
  • Magana v. Hofbauer (2001): Counsel was found ineffective here because he erroneously advised his defendant that that he could not receive consecutive sentences and that he would get 10 years whether or not he went to trial.
  • Mask v. McGinnis (2000): The attorney was ineffective because he failed to discover that his client was a second time violent offender.
  • Boria v. Keane (1996): Counsel ineffective because he failed to properly advise client about accepting the state’s plea offer. Client rejected state’s 1-3 year guilty plea and wound up receiving 20 to life after trial. 

So, going back to Adnan’s case, without providing a long-winded legal analysis, it’s safe to say that he has a chance. In my opinion, out of the potential two issues giving rise to his ineffective assistance of counsel case, his stronger point will be focusing on Ms. Gutierrez’s alleged failure to seek a plea deal for him even though he asked for it.   I think this is the stronger basis for his claim because ultimately, it is always up to the client to decide whether or not to plead guilty.  If Ms. Gutierrez prevented Adnan from pleading guilty and receiving a lowered-sentence, a court will likely consider this in their Strickland analysis.  However, it will be interesting to see how Adnan proves this claim.  Since Ms. Gutierrez passed away, Adnan will have to garner some strong evidence to support his claim. Hopefully, he has more than his word to prove that his lawyer failed to carry out his request to plead guilty.

Going onto the Asia McClain alibi, while it certainly would have been helpful to his case, it is possible that Ms. McClain’s statements could have damaged Adnan’s case somehow and therefore Ms. Gutierrez tactically decided against using it. Even though this fact seems like a game-changer, courts generally respect an attorney’s trial strategy. Courts generally try to stay away from micromanaging each attorney’s game plan. For this reason, I don’t think this Ms. McClain’s alibi will be the fact that changed it all.

As an avid listener of the show, I sincerely hope that if Adnan is innocent, he wins this argument and gets his justice.

[This is NOT legal advice.]

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