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We asked a legal evidence expert if Serial's Adnan Syed has a chance to get out of prison

Alisha Ramos/Vox

Colin Miller, an associate professor of law at the University of South Carolina, is an evidence expert. He's written law review articles about plea bargains, hearsay, and attorney-client confidentiality. But lately, he's been focused on another legal issue: the questions raised by the incredibly popular Serial podcast.

Miller has written, so far, 13 blog posts on the legal issues in Serial — mostly about whether the information jurors were given at trial should have been allowed. Should the prosecutors have been allowed to read from Hae Min Lee's diary at trial, or show jurors the note she passed a friend about her breakup with Adnan Syed? (He argues not.) Should the information about Jay's lawyer being arranged by the state have been provided to the defense before the trial? (Yes, he says.) And was Adnan's lawyer, Christina Gutierrez, ineffective enough that he could win an appeal arguing that she hadn't represented him effectively?

That last question is at the heart of Adnan's appeal, which his lawyer has described as his "last best chance" to get out of prison. The Maryland Court of Special Appeals will decide whether to grant him the appeal in January.

I called Miller to talk about the appeal process more generally and Serial in particular. Our conversation has been slightly rearranged and lightly edited for clarity and length.

Libby Nelson: Explain the appeals process to me. How does it work?

Colin Miller: There are both direct and collateral appeals. In direct appeals, what you need to do is point to a specific error or errors by the prosecution/the judge at trial, and prove that's reversible error. The point is to say that the judge let in a misuse of evidence and that was against the rules of evidence. Or that this was an important piece of evidence that could have tipped the jury, but the prosecution didn’t disclose this evidence and timely disclosure would have allowed us to prepare better for trial.

[For Syed], that was the direct appeal that took place in the early 2000s. This is a a collateral appeal. A collateral appeal isn’t directly addressing what the judge or prosecutor did at trial. It's claiming ineffective assistance of counsel: it's not that the government acted improperly. It was the defense counsel, that in preparing and presenting the case, committed one or more significant errors.

LN: How difficult is it to prove ineffective assistance of counsel? My impression is that it's very hard — there are people whose lawyers fell asleep during the trial, and they didn't win on that appeal.

CM: If you are looking at it empirically, there are a number of studies that look at what actually happens [in ineffective assistance of counsel cases]. That claim is successful between 1 and 8 percent of the time.

In terms of the legal standards, Strickland v. Washington [a 1984 court case about when ineffective assistance of counsel violated the Sixth Amendment] set up a two-pronged test. The first prong asks: was there an error or errors by defense counsel that caused the performance to fall below a prevailing standard of reasonableness?

Courts give a strong presumption of reasonableness in defense counsels' behavior. The general presumption is most decisions are trial strategy and the appellate court isn’t going to second-guess.

The second prong is prejudice: is there a reasonable probability that the resulting proceeding would have been different? Even if we have a mistake or mistakes by defense counsel, the jury could have found [the defendant] guilty beyond a reasonable doubt even with those errors.

LN: How does Adnan's claim of ineffective assistance rate on those criteria?

CM: It's difficult for me to see without the full trial transcript, but [the major issue is] the failure to investigate the alibi given by Asia McClain. The prosecution sets forth a timeline at trial. According to the prosecution at trial, the murder has to to take place before 2:36 pm, which is when the state says Adnan calls Jay from the Best Buy to come and meet him there.

The Asia McClain letter — she sends it to Adnan, she saw him at the Woodlawn Library, and according to the timeframe in those letters, she tends to say that she saw him past that 2:36 p.m. time. And so again, it’s possible Asia McClain had the dates wrong. It's possible she’s unreliable, it’s possible she’s lying. But from my perspective, that doesn’t stop a lawyer from contacting her. After she meets with her, she can decide [whether Asia should testify].

But she was never even contacted! The failure to even contact that alibi witness falls below the reasonableness standard.

LN: Does it matter that Adnan's lawyer is dead?

CM: It does in the sense that, typically, if you have a claim of ineffective assistance of counsel, you’d have defense counsel at the hearing. And defense counsel would be able to stand up and say, Here's why I did X, and here's why I didn't do Y. It's a little more difficult to decipher exactly what her thinking was.

LN: So what about all the questions Sarah Koenig has explored, all the stuff she's uncovered — like whether Adnan could have made the drive to Best Buy and back? Does it matter?

CM: No. All the appellate court here is considering is whether defense counsel is ineffective with regard to the one or two particular issues I mentioned.

LN: What happens if Adnan wins his appeal?

CM: If he were able to demonstrate ineffective assistance of counsel, his conviction would be thrown out. And then we’d either have a new trial, or the state would decide not to reprosecute, or he would seek a plea deal.

LN: Those are three options. Which is most likely?

CM: If a defendant wins on a claim of ineffective assistance of counsel, it really depends on the particular facts of the case. In this case, I think the state wouldn’t seek to reprosecute. It sort of depends on the strength of it - you might have a relatively strong prosecution case, and in that case you might have a plea bargain. But this seems weaker, and there’s been a significant passage of time.

LN: Will the publicity around the Serial podcast play any role?

CM: It shouldn’t. The judiciary should make the decision objectively — but it’d be pretty hard for the judges and the clerks to avoid the publicity going on, and that potentially could have some impact on the decision-making.

LN: What's your opinion of the podcast, as an expert in this field?

CM: I enjoy it quite a bit. It’s something that looks at a trial from a number of different perspectives. I think it humanizes a number of the people who were involved in the process. And the fact that it’s free, I think, exposes a broader segment of the public to the trial process and allows them to see both its faults and its successes.

LN: I understand this is effectively Adnan's last chance. Is that the case?

CM: He has exhausted his state direct appeals. Under Maryland law, he gets one appeal where he can file the post-conviction petition in state court. That's the one that he submitted, and the circuit court rejected it. And now the Court of Special Appeals have decided if it's going to grant him leave to appeal to that court.

And that's all he can do, except for the Innocence Project asking for DNA testing of Hae Min Lee's [rape kit, on which the Virginia Innocence Project is reportedly pursuing DNA testing]. Independent of his current post-conviction petition, they can seek DNA testing. And if he was trying to make a claim of actual innocence, that could be a collateral appeal — but that’s very unlikely. After this, his only avenue is DNA testing in state court.

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