By Amanda Manzano
“That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command.” Strickland v. Washington, 466 U.S. 668, 685 (1984).
The 1984 U.S. Supreme Court case Strickland v. Washington safeguarded a criminal defendant’s 6th Amendment rights by unequivocally confirming that the right to counsel is, by law, the right to effective counsel. A two-part test thus emerged to satisfy a convicted defendant’s claim of ineffective assistance: (1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced the defendant. Courts agree on the elements of this test. But on the parameters of its application, they divide. In that divide lives the case of Adnan Syed v. State of Maryland and a pending petition for a writ of certiorari with the United States Supreme Court.
The compelling facts of Syed’s case grabbed national attention and spurred a flurry of media coverage that raised questions as to Syed’s possible innocence. On January 13, 1999, 17-year-old Baltimore high school student Hae Min Lee went missing. On February 9 of that year, Lee’s body was discovered in a shallow park grave, and nearly three weeks later ex-boyfriend Adnan Syed was arrested for murder. A jury found Syed guilty as charged and he is currently serving a life sentence.
Prosecutors presented evidence at trial that Syed killed Lee sometime between 2:15 and 2:35 p.m. and subsequently called friend Jay Wilds for help with the cover-up at exactly 2:36 p.m. What was not presented at trial was testimony from Asia McClain, Syed and Lee’s classmate who claims she saw and spoke with Syed at the library during the same timeframe the State alleged the murder took place; the same timeframe the jury used to convict Syed. McClain was known to Syed’s defense attorney Cristina Gutierrez but was never contacted for an interview. Her story was not a factor in weighing Syed’s guilt or innocence simply because it was not told.
In 2016, Baltimore City Circuit Judge Martin Welch vacated Syed’s conviction and ordered a new trial based, in part, on McClain’s new testimony as an alibi witness and allegations of ineffective assistance of counsel. The Maryland Court of Special Appeals upheld this ruling, but in March 2019 the Maryland Court of Appeals (Maryland’s highest court) reversed the decision and reinstated Syed’s conviction. Now, nearly 21 years after his arrest, Syed is awaiting a response on whether the Supreme Court will grant certiorari.
The petition’s question presented is “whether a court evaluating prejudice under Strickland v. Washington must take the State’s case as it was presented to the jury . . . or whether the court may instead hypothesize that the jury may have disbelieved the State’s cas[e].” The Court of Appeals held that under the Strickland analysis (1) Gutierrez was deficient in failing to contact McClain, but that (2) this deficiency did not prejudice Syed. In a 4-3 opinion, the court found that given the totality of the evidence, “there is not a significant or substantial possibility that the verdict would have been different had [Gutierrez] presented Ms. McClain as an alibi witness.”
Now, petitioner Syed urges the Supreme Court to establish a uniform standard. Must courts conduct a Strickland analysis in light of the case the state actually presented to the jury at trial? Or else, may courts consider a state’s response to what an effective counselor would have presented—a response a jury never considered at trial—to determine there is not a significant or substantial possibility that a verdict would be altered? Syed argues for the former approach, one which at least ten state and federal courts currently apply. The Maryland Court of Appeals ruled using the latter, determining McClain’s testimony would have “contradicted defendant’s own statement[s], which were themselves already internally inconsistent; thus [potentially] undermin[ing] Mr. Syed’s credibility.” Additionally, the court determined that even if the jury would have accepted McClain’s testimony as true, it could have decided Syed still committed the murder later that day, a theory the State never argued at trial.
Strickland puts the burden of proof on the defendant to show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” If the Supreme Court agrees with Syed and overturns the Court of Appeals’ decision, the Strickland analysis will be conducted using the case the state of Maryland actually presented at trial; that is, that Hae Min Lee was last seen at 2:15 p.m. and was definitively dead by 2:36 p.m., then McClain’s testimony, if believed, accounts for Syed in that 21-minute window and could eliminate him, at least in the mind of a juror, as a viable perpetrator of the crime.
Each Term, the U.S. Supreme Court receives about 7,000-8,000 new cases, 100-150 of which are accepted for review, and about 80 of which are granted plenary review with oral argument. The Court is generally inclined to take cases that will have national significance, create a uniform standard for conflicting federal courts, or set precedent. While the statistical odds are not in Syed’s favor, the substantive value of his claim might be. His petition was filed in August and is now distributed and scheduled to be considered at the Justices’ Conference on November 22, 2019.
Syed’s fate is pending, and followers of his case are faced with this new question presented, one of procedure rather than guilt or innocence. Advocates of Syed’s innocence would agree with his position that courts should not be able to consider “a hypothetical case that sidesteps the weaknesses in the State’s presentation of the evidence.” Perhaps this may be true in the case of Syed, but the impact of a Supreme Court opinion on the matter would create binding precedent nationwide. Should reviewing courts be tied to the case a state presents at trial, a case whose crafting was deprived the opportunity to consider evidence effective counsel should have presented? Perhaps the state is not to be blamed for arguing a jury would still be persuaded by its case, one that maybe would have swiftly and thoroughly discredited any new evidence with ease during trial.
At what point, however, should the state
redirect its efforts? The resources funneled toward appeal after appeal (since
2015, Syed and the State have each appealed rulings twice)
could be focused on conducting a new trial. If the Supreme Court reverses and
grants Syed a new trial, both he and the state of Maryland stand to gain a
fuller presentation of what happened that January day with the addition of new
evidence his counsel failed to acquire and present. Theoretically, both sides
would be better informed with the most important matter in a criminal case:
truth, in pursuit of justice. Isn’t that what everybody wants?
 Strickland v. Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).
 Strickland, 466 U.S. at 687.
 Petition for Writ of Certiorari at 2–8, Syed v. Maryland, No. 19-227 (U.S. filed Aug. 19, 2019).
 Bill Chappell, Adnan Syed, Subject of ‘Serial’ Podcast, Will Get a New Trial, NPR (June 30, 2016, 4:52 PM), https://www.npr.org/sections/thetwo-way/2016/06/30/484225226/adnan-syed-subject-of-serial-podcast-will-get-a-new-trial.
 Petition, supra note 3, at (i).
 State v. Syed, 204 A.3d 139, 158 (Md. 2019).
 Petition, supra note 3, at 3.
 Syed, 204 A.3d at 158.
 Id. at 157.
 Strickland, 466 U.S. at 703.
 Supreme Court Procedures, U.S. Courts, https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1.
 The Justices’ Caseload, Supreme Court U.S., https://www.supremecourt.gov/about/justicecaseload.aspx.
 Supreme Court Procedures, supra note 11.
 Syed v. Maryland, Pending Case Page, SCOTUSblog, https://www.scotusblog.com/case-files/cases/syed-v-maryland/.
 Petition, supra note 3, at 5.
 See id.