A Few Thoughts on Adnan Syed’s Opening Brief

By Steve Klepper (Twitter: @MDAppeal)

[Update: A reader, David Lease, pointed out to me the 4-3 decision in Stachowski v State, 416 Md. 276(2010), which appears to negate the possibility of bypass. Thanks to David and boo to Stachowski .]

I had a chance today to read Adnan Syed’s opening brief, filed Monday in the Court of Special Appeals. I have two quick thoughts.

First, only one section jumped out at me as containing information that I don’t recall appearing in the Serial podcast. Referring to the mistrial in the first trial – after jurors overheard Judge Quarles calling defense counsel a “liar” – the brief states:

The episode with Judge Quarles — in which the judge questioned her honesty — was not an isolated incident. Years before, Judge Marvin Smith of the Court of Appeals had raised concerns about Gutierrez’ lack of candor when he objected to her admission into the Maryland bar because of a theft conviction and what he thought to be an incomplete disclosure. He wrote: “how can we know that her demonstrated qualities of dishonesty, untruthfulness, and lack of candor will not again rise to the surface?” In re Application of Maria C., 294 Md. 538, 541 (1982) (dissent) (emphasis in original).

Judge Smith’s dissent noted that the “practice of law often involves handling the funds of clients running into tens of thousands and even hundreds of thousands of dollars. This can and does present a temptation to some individuals, as experience has amply demonstrated.” Judge Smith likened the admission to an employer placing “a convicted, but reformed, embezzler in a position to handle substantial amounts of money . . . . I dare say that if a case were to reach us involving a fall from grace of such individuals, my colleagues would be inclined to comment that the employer’s action was analogous to contributory negligence.” “Nevertheless,” Judge Smith concluded, “I wish her well in the practice of law — and hope she will prove my fears unfounded.”

History vindicated Judge Smith’s concern. As all Serial listeners know, and as Syed’s brief points out, Judge Smith’s defense counsel’s “legal career ended, shortly after the Syed trial, when she was disbarred by consent for mishandling client funds on May 24, 2001.”

Second, returning to a point on which I posted earlier, this case looks like a legitimate candidate for bypass to the Court of Appeals. As becomes clear from the Question 2 discussion, beginning at page 24 of Syed’s brief, no Maryland court has addressed a claim of ineffective assistance based on defense counsel’s failure to pursue a plea bargain. Instead, Syed relies on numerous federal decisions, including from three different federal appellate courts. This issue appears to be eminently worthy of certiorari.

As Judge Smith’s 1982 dissent highlights, the Court of Appeals took a chance on defense counsel when it admitted her to the bar despite knowing of conduct indicating a serious risk of dishonesty. The Court of Appeals will have its monthly conference tomorrow, March 26. If it wants a chance to address the lingering consequences of that 1982 risk, Syed v. State just might appear on this week’s certiorari list.

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