In my post last week titled “Bringing famous defendants into the Criminal Procedure classroom,” I suggested that case filings from (in)famous defendants present the legal academy with a special opportunity to bring the classroom alive—particularly and especially the investigative criminal procedure classroom—in a manner superior to more traditional teaching methods. At the end, I promised a series of follow-up topic-specific posts that would include my thoughts about teaching the investigative criminal procedure course through the lens of famous defendants. Today we dive into how the performance of Adnan Syed’s attorney, Cristina Gutierrez, at his murder trial makes for a compelling way to teach Strickland v. Washington.
The Strickland standard
In 1984, the Supreme Court decided for the first time who is an “effective” criminal defense attorney for purposes of the Sixth Amendment. Writing for a majority of the Court, Justice O’Connor in Strickland v. Washington announced a new two-part standard for judging the reasonableness of a defense’s attorney’s representation.
According to the Strickland majority, a defendant must first show that counsel’s performance was “deficient.” That, in turn, “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Citing American Bar Association standards as an example, the Court indicated that “prevailing professional norms” can help evaluate when counsel falls below an objective performance threshold. But, the Court cautioned, the standard is “highly deferential.” Accordingly, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’”
Second, the defendant must show “prejudice.” Prejudice, the Court wrote, requires a defendant to demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Finally, the Court wrote that a reviewing court could resolve an ineffective assistance claim on either the performance or prejudice prong.
As the years since Strickland have overwhelmingly demonstrated, the bar set by the Supreme Court for defense lawyering is low. Indeed, since its publication, courts have relied on Strickland to uphold as constitutional some remarkable criminal defense conduct, including sleeping through portions of a trial, remaining completely silent during the proceedings, mental illness, and alcohol and drug use. With results like those, Strickland has (perhaps unsurprisingly) endured complaints from the media, the bar, and scholars alike.
Why Strickland in the Investigative Criminal Procedure course?
At the outset, let me acknowledge that I teach Strickland at the beginning of the investigative criminal procedure course. I realize I am in the minority; indeed, a majority of criminal procedure books house Strickland in the Sixth Amendment materials taught in the adjudicatory criminal procedure course. Fair enough. But in my opinion, very little of what students learn in the investigative criminal procedure course matters unless they develop a deep appreciation for the impact that quality lawyering has on the outcome of a case. Indeed, the quality of lawyering matters arguably more than anything else—on both the prosecutorial and defense sides.
The Supreme Court’s treatment via Strickland of the constitutional standard governing the minimum standard for competent defense lawyering is, at best, disappointing. But it nonetheless provides a sobering reminder that, once lawyers, students must hold themselves to a high standard of quality representation because the Supreme Court’s Sixth Amendment standard, as Syed’s case demonstrates, permits almost anything to pass as constitutionally acceptable defense representation.
Who are Adnan Syed and Cristina Gutierrez?
To many, Adnan Syed is best known for his role in NPR’s first Serial podcast. But for classroom purposes, it’s the actions of his trial lawyer, M. Cristina Gutierrez, that make for a compelling illustration of Strickland’s inability to demand more from defense lawyering.
On February 25, 2000, Adnan Syed was convicted of murdering his former girlfriend and classmate, Hae Min Lee. Lee, a gifted and talented student at Woodlawn High School in Baltimore, Maryland, who vanished after school on January 13, 1999. Investigators initially treated Lee’s disappearance as a runaway or missing person case—until her body was discovered buried in a shallow grave nearly a month later. Soon thereafter, an anonymous phone call implicating Syed, coupled with the testimony of a former Woodlawn High student, Jay Wilds, led to Syed’s arrest for first-degree murder.
As prosecutors and police built their case against seventeen-year-old Syed, Syed’s family hired M. Cristina Gutierrez to represent him at trial. Gutierrez was a well-known criminal defense attorney who had been involved in a number of high-profile cases during the 1990s. But in 1999, Gutierrez began suffering from the effects of multiple sclerosis, which reportedly included loss of vision and memory. (Side note: as a result of her illnesses, the Maryland Court of Appeals would ultimately announce on May 24, 2001 that Gutierrez had consented to her own disbarment. Gutierrez later passed away on January 30, 2004.)
In December 1999, Syed’s first trial resulted in a mistrial. His second trial ended on February 5, 2000, with a conviction of first-degree murder, kidnapping, robbery, and false imprisonment. Syed was sentenced to life in prison.
After unsuccessful direct appeals, Syed filed a Petition for Post-Conviction Relief on May 28, 2010, alleging ineffective assistance of trial counsel, among other claims, which the Baltimore City Circuit Court denied. Then, on June 30, 2015, Syed filed a Motion to Re-Open Post-Conviction Proceedings in the Circuit Court, followed by a Supplement to the motion on August 24, 2015. The Circuit Court granted Syed’s motion to re-open on November 6, 2015, for the limited consideration of two of Syed’s claims: (1) Gutierrez’s failure to contact a potential alibi witness and (2) the reliability of the cell phone/cell tower evidence used by the State to corroborate Jay Wilds’s testimony.
Specifically, the Circuit Court first considered whether Gutierrez rendered ineffective assistance when she failed to contact Asia McClain, another Woodlawn High School student, and investigate her as a possible alibi witness. Shortly after Syed’s arrest, McClain contacted him via letter multiple times to say that she remembered seeing him in the library after school the day of Lee’s murder. Syed repeatedly relayed this information and gave McClain’s letters to Gutierrez, as evidenced by her case notes, but she never contacted or considered McClain as a potential alibi.
Syed argued in his post-conviction motion that Gutierrez’s failure to contact McClain constituted deficient representation because McClain’s testimony provided Syed with an alibi for a crucial part of the State’s trial timeline—the precise time Lee was murdered. To present its theory, the State developed a timeline of events based on Wilds’s testimony and Syed’s cell phone records. According to the State’s timeline, Syed strangled Lee after school in the Best Buy parking lot at 2:36 p.m. By contrast, McClain recalled visiting with Syed in the library that day from 2:30 p.m. to 2:40 p.m.
Although Gutierrez had notice of McClain’s recollection, neither she nor her staff ever contacted McClain. After the first trial in 2000, McClain wrote and signed two separate affidavits affirming that she saw Syed in the library around 2:30 p.m. on January 13, 1999, and that no one from the defense team ever contacted her.
In considering “the alibi” claim, the court applied the two-prong inquiry articulated in Strickland to evaluate whether Gutierrez’s representation deprived Syed of his Sixth Amendment right to effective assistance of counsel. Regarding the first prong, identification of the acts or omissions that were deficient, the court found that Gutierrez’s “failure to investigate McClain as a potential alibi witness fell below the standard of reasonable professional judgment.”
Nevertheless, the court denied relief on “the alibi” claim under Strickland’s second “prejudice” prong. The court found that Gutierrez’s failure to investigate McClain was not prejudicial because her testimony “would not have undermined the crux of the State’s case: that [Syed] buried the victim’s body in Leakin Park at approximately 7:00 p.m. on January 13, 1999.” That is, according to the court’s view, Syed was still near the area where Lee’s body was found. Thus, the “alibi claim” did not meet Strickland’s standard for ineffective assistance of counsel. The court also denied relief on Syed’s second claim—a Brady claim. Specifically, Syed argued that the State failed to disclose potentially exculpatory evidence (a fax cover sheet disclaiming the reliability of the cell phone records), which violated the State’s duty imposed by Brady v. Maryland, 373 U.S. 83 (1963).
Although the court found that Syed waived his Brady claim for reasons unimportant here, the court did consider whether Gutierrez rendered ineffective assistance when she failed to cross-examine the State’s cell tower expert about the disclaimer contained in the fax cover sheet. For further context, at trial, the State relied on two incoming calls to corroborate Wilds’s testimony that Syed buried Lee’s body in Leakin Park at approximately 7:00 p.m.—the “crux” of the State’s case. The State presented a cell tower expert to explain this evidence, but Gutierrez failed to cross-examine the expert about the disclaimer included in the cell phone records cover sheet.
According to the court, the disclaimer raised the possibility that the State’s evidence linking Syed’s phone records to Leakin Park at the time of the burial “may not reliably have reflected the corresponding cell site of an incoming call.” Thus, “a reasonable attorney would have exposed the misleading nature of the State’s theory by cross-examining [the State’s expert about the disclaimer].” The court found that Gutierrez’s “deficient performance in failing to confront the State’s cell tower expert regarding the disclaimer created a substantial probability that the result of the trial was fundamentally unreliable.” Consequently, on June 30, 2016, the court granted post-conviction relief, vacated Syed’s convictions, and granted his request for a new trial.
The Court of Special Appeals of Maryland affirmed the Circuit Court’s grant of a new trial in a 105-page opinion. Like the Circuit Court, the Court of Special Appeals preliminarily focused on the alibi issue, holding “that, once a defendant identifies potential alibi witnesses, defense counsel has the duty “‘to make some effort to contact them to ascertain whether their testimony would aid the defense.’” But unlike the Circuit Court, the Court of Special Appeals held that such a failure also satisfied Strickland’s prejudice requirement. It explained that Syed’s placement in Leakin Park was circumstantial evidence of his involvement in Lee’s death, whereas McLain’s proposed testimony was direct evidence that Syed was actually the library at the time the state said Lee was killed.
The Maryland Court of Appeals (Maryland’s highest court) reached the opposite conclusion and reversed. The court concluded that Gutierrez’s failure to contact McCalin fell below Strickland’s performance prong. But, in a nod to just how hard Strickland claims are to win, it nonetheless held that her failure was not prejudicial because “there is not a significant or substantial possibility that the verdict would have been different had trial counsel presented Ms. McClain as an alibi witness.”
What can students learn from Syed’s case?
There is an overwhelming amount of material from Syed’s case that helps to enrich the Strickland classroom. In an effort to focus your classroom conversations, you might narrow in on three specific topics.
What constitutes a worthwhile Strickland claim?
Syed’s initial Petition for Post-Conviction Relief included nine (yes, nine) Strickland claims and, remarkably, the alibi claim was not the lead claim! I share that with students to get them talking about a common problem with Strickland—the “kitchen sink” phenomenon. It’s easy to generate Strickland claims in hindsight because the appeal would not exist were it not for a guilty verdict or plea. The attorney must have done something—or a lot—wrong. Or so the logic goes. But I think Syed’s case, at least in this first filing, illustrates that more is not always better. Submitting nine Strickland claims, as Syed did here, can be distracting. But that raises a separate question: what if trial counsel really was that bad? Regardless of how students answer these questions, I minimally think it’s important to get them talking about how Strickland appeals are about making choices. Because they are so common, it’s important for students to think about how to make a Strickland appeal stand out. Indeed, the hard part is not generating a Strickland claim, but rather winning one on appeal. Perhaps when viewed in that manner, less is more.
I should add that I show students the list of Strickland claims from Syed’s initial Petition for Post-Conviction Relief. In that list of Strickland claims, one seems to missing—the fact that Gutierrez was likely laboring through trial while suffering from the effects of multiple sclerosis. I ask students whether they think a lawyer suffering from multiple sclerosis could stand as the basis for an independent Strickland claim. How they answer that question should help them to think, or rethink, how to answer similar questions about a defense lawyer who represents a defendant while suffering from mental illness, alcoholism, or drug dependency.
What counts as Strickland “trial strategy”?
The Supreme Court says in Strickland that “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” The “trial strategy” language is problematic for at least one obvious reason: the Court’s opinion includes the word “might” before “be considered sound trial strategy.” Accordingly, even hindsight justifications count as trial strategy. That’s problematic because a reviewing court cannot know from a cold record what the defense attorney was thinking during trial. As a result, trial strategy for Strickland purposes could include the failure to call an alibi witness—as in Syed’s case.
There are at least three compelling materials associated with Syed’s Strickland filings that help students explore this question. First, the letter McLain sent to Syed in prison. Second, Gutierrez’s handwritten notes, which show the effect multiple sclerosis had on her physical and mental health. Third, a letter sent by Syed’s parents to Gutierrez that specifically references McLain’s alibi story. Collectively, those materials show students that Gutierrez knew that McLain existed. Armed with that knowledge, I ask students whether Gutierrez’s failure to contact McLain could “be considered sound trial strategy.”
To aid in their thinking, I present my students with how the State approached answering that question before the Maryland Court of Appeals. The State would ultimately offer three justifiable reasons for Gutierrez not pursuing the McClain alibi defense: (1) “the alibi proposed by McClain threatened to suggest that Syed had lied to police and had gone to the public library, a place no one had ever associated with Syed[;]” (2) “the library alibi ran the risk of placing Syed at the public library with the victim at critical junctures[;]” and (3) “pursuing the [ ] McClain alibi expose[d] Syed to the risk of being accused of colluding with a witness to falsify an alibi.” In sum, the State argued that Gutierrez’s trial strategy—which focused on Syed’s daily routine—was superior to the McClain alibi because “it covered a broader range of time, which was important since prosecutors could not narrow [the] time of death even after [trial counsel] inquired.”
The inquiry into what constitutes acceptable Strickland trial strategy through the lens of Syed’s court filings and the State’s arguments on appeal provides students with a real-life example of an unsettling truth: hindsight justifications seem sufficient under Strickland.
The interplay between Strickland elements
In many ways, the last word on Syed’s case (thus far) from the Maryland Court of Appeals about Strickland prejudice perfectly illustrates why so many complain about the Strickland standard. Recall that Strickland itself permits resolution of an ineffective assistance of counsel claim on either the performance or prejudice prong. That matters in Syed’s case because although the Maryland Court of Appeals held that failing to contact an alibi witness fell below the objective standard of reasonable attorney judgment, it nevertheless concluded that Gutierrez’s failure did not prejudice the defense. Syed’s case therefore demonstrates to students that the prejudice prong of Strickland essentially permits objectively unreasonable defense attorney conduct.
The Syed facts also demonstrate to students how to posture a Strickland claim from a macro-organizational standpoint. That is, an important goal in a Strickland appeal should be to keep the facts inside the constructive denial of counsel box. That is, Justice O’Connor for the Strickland majority wrote that, “[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.” Accordingly, so the argument goes, the alcoholic or drug-dependent lawyer is really the equivalent of having no lawyer at all. Or, as in Gutierrez’s case, the argument would be that the lawyer who suffers from advanced-stage M.S. is simply not the same has having a lawyer otherwise unafflicted with that disease. Syed’s case helps students to think about generating Strickland arguments that start with constructive denial of counsel in order to avoid having to also show prejudice.
Taking a step back, Syed’s case gives students an opportunity to apply Strickland to a very real and temporally relevant defendant. But perhaps the greatest benefit of bringing Syed’s case into the Strickland classroom is the lasting impression it has on students with respect to the importance of trial performance: they can (and must) do better. And we as educators can (and must) help them in that endeavor. Syed’s case allows us to do just that in a manner superior to traditional teaching methods.
Stay tuned for next week’s post when we explore exigent circumstances as taught through former NFL running back O.J. Simpson.
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