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[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 340. I’m Thomas, that’s Andrew. How ya doing, Andrew?
Andrew: I’m fantastic, Thomas, how are you?
Thomas: I am mainly just in absolute cliffhanger mode, I just can’t even deal with the fact that I have no idea how I did on the bar question.
Andrew: [Laughs]
Thomas: One of the best parts of that is the fact that nobody knows until they hear the answer! [Laughs]
Andrew: [Laughs] For those of you, for the 25-30,000 of you who are normies who are non patrons, I accidentally sent out the correct bar exam answer along with – actually before they got the question.
Thomas: Yup!
Andrew: So I recalled it after about 18 seconds-
Thomas: It was a time machine breakdown. Those things are finicky.
Andrew: Yeah. It was a Mandalorian accident.
Thomas: [Laughs]
Andrew: [Laughs] But yeah, occasionally I hit the wrong button.
Thomas: Can’t wait for the thrilling, no spoilers answer to that. Just a chance to do another shout out for patreon.com/law, you would’ve had the answer before time itself.
Andrew: Yeah, you could cheat! You could totally cheat on what was a very, very hard T3BE question.
Thomas: Yeah.
Andrew: So to make up for that I’m gonna do a little segment explaining the answer and I think it’ll be fun.
Thomas: Yeah, it was a tough question.
Andrew: Yeah.
Thomas: So I have been genuinely waiting to hear the explanation on that one. Alright, but today’s episode we’ve gotta talk about Trump and the courts. Now is this gonna be about his court appointments?
Andrew: Yup.
Thomas: Or is this gonna be how many times he’s lost in the courts? I wasn’t sure.
Andrew: [Laughs] Those are both big numbers.
Thomas: Yeah.
Andrew: But, no, it’s gonna be the former.
Thomas: Okay, well that’ll be depressing. Then we’re going to talk, it’s our second – I feel like we’ve done more but apparently this is our second Serial episode, we’re gonna talk about Adnan Syed’s case and the fact that cert was denied. Hopefully this time we won’t get any of Adnan’s childhood friends slash legal activists mad at Andrew as happened last time.
Andrew: [Laughs] That’d be nice! That’d be nice.
Thomas: And then Wild Card Segment! [Laughs] We’ll see how that goes again. So here goes, let’s do our first segment. What’re we, breaking down? What kind of segment is this? Brian, surprise us! [Laughs]
How Trump has Shaped the Courts
[Segment Intro]
Thomas: Okay, now that Brian surprised us, Trump and the courts! How effed are we?
Andrew: Yeah, so I wanted to tackle this because this is – there’re really two dueling bits of conventional wisdom. The first is that Trump has an outsized plurality of the current federal judiciary and has managed to flip three separate circuit courts of appeals and so you should be scared. There are lots of Trump appointments that are out there. I think that is shared by a lot of our listeners, probably virtually all of our listeners.
But on the other hand, the counter argument, and there are articles, there’s this article, it’s a late 2018 but it’s from the Brookings Institution, so again, from kind of left and center-left sources that want to steel man the other side or want to take a contrary position and raise the point of, hey look – this is kind of the thesis of that, is whenever you’re in a President’s term, that President is gonna have an outsized percentage of the judiciary because previous judicial appointments die off, retire, whatever. So there was this Brookings article that says Trump has reshaped the judiciary but not as much as you might think. I thought we would delve into those two contrary positions and see. Both are true but which one’s more true?
Thomas: Hmm.
Andrew: So let’s start off with the other side. Obama appointed 268 District Court judges in his two terms, in eight years. George W. Bush, Bill Clinton, both two-term Presidents, both had similar numbers. So the no big deal side points out that as of this recording Trump has appointed 112 District Court judges in three years and if you do the math, 112 divided by 3, 268 divided by 8, that’s about the same number.
Thomas: Hmm.
Andrew: That is true. So alright, case closed, right?
Thomas: Oh thank god, okay, good news, case closed. I was actually gonna say I’ll be an Optimist Prime and I’m rooting for the no big deal side and I can’t wait to be disappointed.
Andrew: Yeah, uh… [Sighs] Lace up your disappointment shoes because-
Thomas: Okay.
Andrew: -the second you scratch beneath the surface you will see that that is not comparable in two major ways. I want, again to try and steel man, I wanna exclude the things that you might be thinking of, which is forget the character of Trump’s appointments and the fact that many of them are super unqualified.
Thomas: Oh, yeah.
Andrew: Like Justin Walker. That Trump has – and this is inarguable – Trump has appointed more Justices that the American Bar Association, a non-partisan organization, not a liberal group despite what Fox News says, has appointed more justices that the ABA has unanimously reported out as not qualified to the federal bench but, you know, we’re gonna take a mulligan on that one.
Thomas: Which by the way, that is very significant, though.
Andrew: It is super duper significant.
Thomas: Like it’s cool that we can separate that out, but this is more than just “oh, well the blue team got this many and now the red team’s getting this many.”
Andrew: Yeah.
Thomas: It’s like, no no, the red team’s getting that many plus also they’re wildly unqualified hacks who are probably way younger and gonna be ruining our lives for way longer.
Andrew: That’s the second thing we’re not gonna consider.
Thomas: Okay.
Andrew: Which is that the largest percentage that I can determine in modern history of Trump’s appointees are in their 30s like Justin Walker who’s 37 and will probably be on the bench long after I’m dead.
Thomas: [Sighs]
Andrew: This is a deliberate strategy, it is the culmination of the strategic moments that were put into place.
Thomas: I mean, you’re not in your 70s, boomer!
Andrew: [Laughs]
Thomas: I’m rootin’ for you to live longer than this guy.
Andrew: Good, me too!
Thomas: It’s not impossible.
Andrew: Me too. So those are two really, really bad things that we’re not gonna consider in the numbers at all.
Thomas: [Laughing] Okay.
Andrew: Instead, we’re gonna consider these two things. First, let’s take a look at that number of 112 District Court judges. Here’s how we got there: Mitch McConnell held up virtually all of Obama’s nominees for the two years in which Republicans controlled the Senate and the last two years of Obama’s presidency.
Thomas: Yeah, but we need civility and norms, everybody.
Andrew: Yeah, right. Right. I have pointed out, again because it just illustrates the preposterousness of Republican obstructionism, and also because it’s a friend of mine, that Barrack Obama nominated my friend, Stephanie Gallagher, to the federal bench in Maryland to become a District Court judge for the District of Maryland. That was just held up as a matter of course for two years until Obama left office, until she was re-nominated by Donald Trump and just, her investiture was last month, was confirmed by the Senate in October. So the same person, held up for four years because Mitch McConnell just put a hold on there. By the way, Stephanie Gallagher, Republican.
Thomas: Which really goes to show just how hideous McConnell’s behavior was.
Andrew: Yup.
Thomas: Wasn’t any sort of principle, nothing.
Andrew: There was no principle there, this is somebody who is acceptable as a judicial appointment to Donald Trump and was held up for four years. There were so many vacancies that McConnell created that the Senate, even after exercising the nuclear option, blowing up the filibuster, they can’t schedule time to rubber stamp these guys fast enough.
Thomas: [Laughs]
Andrew: They changed the rules to reduce to three hours the total testimony, it’s just – it’s like the classic I Love Lucy where they’re working on the assembly line.
Thomas: Yeah.
Andrew: It’s crazy. So there are 51-
Thomas: The only difference is the totally broken crap that’s going through the assembly line is actually fine so it doesn’t matter.
Andrew: Yeah.
Thomas: It’s not like oh no, I’m not doing my – no it’s like naw, whatever.
Andrew: Yeah.
Thomas: Oh, this is a totally inexperienced, never tried a case in their life? Yeah, no, yeah, move ‘em along, it’s fine.
Andrew: That’s still being cranked out. So in addition to the 112 that have been confirmed there are 51 pending Trump appointees in the queue who will be crammed through soon enough. You add those two together you get to 163 in three years, which by the way, 50% higher than Obama, George W. Bush, Bill Clinton. It gets worse.
Thomas: Hmm.
Andrew: Or better if you’re Uncle Frank, I guess, if you look at appellate judges.
Thomas: Well he doesn’t listen, so…
Andrew: Yeah. [Laughs] Let’s go back to the numbers. Obama, 2 Supreme Court appointees, 55 appointees to the various Circuit Courts of Appeal. Again, W. and Clinton had essentially similar numbers. We know Trump has had 2 Supreme Court appointees, we are doing everything in our power, prayer and otherwise, to hope that he does not get a third, but Donald Trump has already made 48 appointments to the Circuit Courts of Appeal in three years. That is literally more than twice the rate of either Obama or George W. Bush. Again, we know that the President has drastically reshaped the Supreme Court.
I just wanted to go through this because I saw the Brookings article pop up, I had a question that came into our email account and just by the numbers, if you assume that there is no difference in the character of the people that Donald Trump is appointing – which is contrary to fact – he is appointing at more than twice the rate to the highest Appellate courts and at 150% to the U.S. District courts. Even if Donald Trump is a one-term President he will have drastically reshaped the federal judiciary in a way that no other one-term President has in modern history. I suppose I should put an asterisk for presidents who presided over the expansion of the judiciary. [Laughing] George Washington got to appoint an awful lot of judges, for example.
It firmly leads me to the position that, more important than Supreme Court packing is passing a new judiciary act, greatly expanding the federal judiciary which, by the way, is grotesquely overworked. I have two cases in federal court right now, neither of which have moved in months and that’s because the courts are overworked, underfunded, there aren’t enough courthouses, there aren’t enough judges, there aren’t enough bodies on the ground to do the job. It would have both a salutary effect of actually being necessary for the functioning of our country and also help rectify the tremendous injustice that has been done by the Trump administration.
It’s way worse than probably even you expected.
Thomas: I picked a hell of a day to try to be Optimist Prime!
Andrew: [Laughs]
Thomas: I was supposed to retire tomorrow! [Laughs] … [Sighs] fun. Is that the end of our misery? Are we done?
Andrew: That’s the end! Yeah.
Thomas: Oh good, I was just waiting for the other shoe to drop!
Andrew: [Laughs]
Thomas: The other 900 unqualified judge shoes to drop.
Andrew: I sometimes do leave another wham moment for the end, but that’s-
Thomas: Yeah. Okay.
Andrew: I figured that was wham enough.
Thomas: You’re taking mercy on us, thank you. Appreciate it. Alright, it’s time to move on to our main segment.
Syed Denied Certiorari
[Segment Intro]
Thomas: We’re talking Adnan Syed! I believe the official show position is that, for both of us I believe, that Adnan did it?
Andrew: Yup.
Thomas: That’s our official position, right? Yup.
Andrew: It is! That’s episode 107, go back, listen to that episode. We also did a follow-up with a listener for patrons only, so you got that Patreon only special with a listener who wanted to come on and make some of the arguments from the undisclosed podcast. I’m not gonna revisit any of that.
Thomas: Okay.
Andrew: In fact, I’m gonna – because that’s been done. In fact, when we teased that we were gonna discuss this case again I got a comment over Twitter that said “during your deep dive please discuss (1) lividity, (2) table taps during Jay’s interrogation, (3) Jay’s drug charge disappearance, prosecutor hiring attorney for Jay, (4) current boyfriend’s alibi problems, (5) alibi witness for Adnan.” I just wrote back “nope!”
Thomas: [Laughs]
Andrew: The reason – I’m not just being sarcastic, the reason I’m not gonna discuss any of that is because all of those things are irrelevant to the judicial proceeding that is going – well that just concluded. The fact that the Supreme Court denied certiorari in Syed’s appeal of the Maryland Court of Appeals ruling denying him a re-hearing on ineffective assistance of counsel. There is-
Thomas: Plus, if there’s anything I know about the police it’s that they would go to extreme lengths to break the law to help make sure a guilty black person gets off and blames an innocent non-black person. That’s definitely what our country’s police do, right?
Andrew: [Sighs]
Thomas: Sorry, irrelevant, we’re not gonna talk about it!
Andrew: Yeah, I guess I wanna say a few things at the outset. 107 pre-dates Stormy Daniels so, you know, many of our listeners may not have heard that episode.
Thomas: Yeah, yeah.
Andrew: Go back, give it a listen.
Thomas: We had mullets back then.
Andrew: Yeah! [Laughs] I had Coca-Cola It’s the Real Thing bell bottoms.
Thomas: Andrew still has one, by the way, but- [Laughs]
Andrew: Well, obviously. [Laughing] I look like Joe Dirt. Anyway, here’s what you need to know for this segment, we said this on 107. Serial is a one-sided story telling podcast that leaves out key incriminating pieces of evidence. Undisclosed is an advocacy piece that argues that Serial didn’t go far enough.
Thomas: [Laughs]
Andrew: Look, those things are fine! But it’s like watching 60 Minutes. You need to know you are watching a carefully crafted story and narrative that is designed to lead you to that conclusion. In general, you and I both think skepticism of the police and of the judicial system in general is a healthy thing and ensuring that innocent people are not convicted is an important – salutary, it’s really, really important!
Thomas: And you know what? I’ll add one more thing to that which is this guy’s been in prison for 20 years, right?
Andrew: Yeah.
Thomas: I mean, maybe he should just be out anyway! [Laughs] I don’t know how, just philosophically in terms of what good is – does anyone really think he’s gonna murder another high school sweetheart? I dunno, but anyway, separate question.
Andrew: All of those – again, usually our liberal credentials don’t come under much fire on this show, all of those are really, really good points. What I will say – the reason that I emphasize the contrary position is because 100 million plus people listened to a podcast and millions of people who listened to that podcast now believe that this person is innocent. That’s fine! That’s a good impulse. But I want you to know that there are literally millions of other cases that weren’t made into podcasts where, okay-
Thomas: The person’s actually innocent? [Laughs]
Andrew: That’s right. Where people feel the same way and you don’t feel the same way because you don’t know about it because you don’t have Sarah Koenig narrating their story.
Thomas: Yeah, and Mail Chimp. [Laughs]
Andrew: [Laughs] The question is-
Thomas: Sweet, sweet Mail Chimp money.
Andrew: [Laughs] Yeah, right. The question is, when you say “I think a criminal defendant might be innocent and I want them to have the right to re-litigate their case,” the question is where does that stop? Again, here, now that Kamala Harris has dropped out of the race maybe we’ll get “Andrew Is a Cop.”
Thomas: [Laughs]
Andrew: But, like, I want to emphasize, no matter how liberal you are, you do want there to be an end to that. I can give you a great example of how much you want somebody to be prosecuted and put in jail and that answer is, I dunno, off the top of my head, Brock Turner, right?
Thomas: Hmm.
Andrew: When people commit crimes-
Thomas: Yeah, you don’t want him to be able to appeal his 25-day jail stint forever!
Andrew: But look-
Thomas: But imagine there was him but actual justice happened?
Andrew: But actual consequences? Yeah.
Thomas: Okay, gotcha. Yeah, yeah.
Andrew: That’s what I’m saying, right. Now look, I picked that because I built in a lot. The outrage over Brock Turner is here is somebody who committed a heinous crime who should be serving serious jail time. That’s the significance of the outrage, it’s ridiculous that he got 6 months in jail with three years of probation and was let out at 50% of his time, that’s the outrage. Now imagine that any system allowed anybody, when they claimed that they were innocent and had any kind of additional subsequently discovered evidence, to file another appeal?
You would have the situations that we make fun of in Law’d Awful Movies that I think created an incredibly negative environment in this country. Movies in this country in the 1970s, 80s, and early 90s perpetuated the myth – we’ve tackled this on Law’d Awful Movies – that, oh well you’re on death row you just get to keep filing appeals until your lawyer gives up and until you’re released. Lots of people believed that. Hell, people may still believe that, I don’t know.
Thomas: I think Law’d Awful Movies would tell us people believe a lot of weird stupid things about how this process works.
Andrew: [Laughs] That is true!
Thomas: Including people who are writing scripts for national shows, primetime shows haven’t even bothered to fact check. Anyway…
Andrew: Yeah. So as a result, the way in which it works is you get a trial, you get your appeal as of right in your State system. Usually that’s two levels of appeals, most States, when you are charged with a capital crime for which the death penalty is on the table, even if they have a State Supreme Court that grants certiorari will have automatic cert in death penalty cases. At minimum you get your trial and you get one appeal as of right, then you get one set, one bite at the apple for post-conviction relief. Post-conviction relief is arguing things like ineffective assistance of counsel.
Thomas: Hmm.
Andrew: That is to say, hey, I know we can’t go back and re-litigate this case, I know I lost, but I lost because my lawyer was terrible and had my lawyer not been terrible she would have uncovered X.
Thomas: Hmm.
Andrew: Had she uncovered X, my trial would have gone differently. Again, totally reasonable, that is what Syed argued.
Thomas: Yeah, which is maybe a good argument? I’m curious to hear what you think, ‘cuz she definitely wasn’t good.
Andrew: Yeah, so I’m gonna go through that.
Thomas: Okay.
Andrew: So in that post-conviction proceeding, Syed raised nine separate claims of ineffective assistance of counsel. Everything that came up in the Serial podcast, basically. The trial court, however, ruled only in favor of two specific claims of ineffective assistance. One, that his lawyer, Christina Gutierrez, was ineffective for failing to interview and investigate Asia McClain as a potential alibi witness, and two, relating to claims regarding the reliability of the cell towers.
Thomas: Mm-hmm.
Andrew: Which as you remember was a big part of the Serial podcast. On appeal, the Maryland Court of Special Appeals – that’s where he gets his appeal as of right – affirmed on Asia McClain but held that Syed had waived his right to seek relief related to the cell towers.
Thomas: Hmm.
Andrew: It’s kind of a technical ruling and Syed has since abandoned this argument. So after the Court of Appeals said okay, we’re affirming in part but reversing in part, both parties appealed to the Maryland Court of Appeals and the Maryland Court of Appeals reversed. They said – this was a 4-3 decision, we’re gonna talk about it. They said no, it’s not ineffective assistance of counsel for Gutierrez’s failure to investigate-
Thomas: Hmm.
Andrew: -Asia McClain. I’m gonna explain why in a minute, it was a close, like I said 4-3, it was a close case. The petition to the Supreme Court was then on that singular issue. Okay? So not on lividity, not on table taps, not on drug charges.
Thomas: [Laughs] Yeah.
Andrew: Not on any of that stuff. Again, this doesn’t mean – you are entitled to your belief as to whether Syed did it or not, but that’s not where we are. Where we are is, after you’ve had a trial and you are attempting to re-litigate issues you can’t just keep re-litigating everything because a podcast comes out and there might be new information. The post-conviction relief was my lawyer screwed up and the argument that Syed’s attorneys made to the Supreme Court was that they screwed up in failure to investigate Asia McClain as a potential alibi witness. The Supreme Court denied cert.
I noticed this because I actually saw it on the SCOTUS blog, but they denied cert and there were no – we talked about how sometimes when the Court denies cert a dissenting Justice or more will write a dissenting opinion and say hey, I think we should’ve granted cert in this case. This was just a denial. We don’t know if that means there were between 0 and 3 votes to grant certiorari, it could be unanimous, it could have been there were three Justices that wanted to take it – up to three Justices that wanted to take it up – but none of them felt strongly enough to write anything about it, this was just buried in the Court’s omnibus orders that only [Laughing] total geeks like me sit and read, which was Syed v. Maryland, 19-227 was listed under “cert denied.”
Thomas: Hmm.
Andrew: Now the effect of denying cert is that the State Court opinion stands. Not necessarily that the Supreme Court is endorsing that result, it’s just the Supreme Court saw no reason to disturb in this case and grant certiorari and review that State Supreme Court issue. The reason, by the way – we’ve talked about this before in the Kansas State Supreme Court abortion cases. The reason is because ineffective assistance of counsel is a claim under your constitutional 6th Amendment right to a lawyer. Because it is a State Supreme Court interpreting a constitutional right, that’s why Syed had the right to petition the Supreme Court in the first place.
What he argued was hey, the Maryland Court of Appeals, that is our State Supreme Court, the highest court in Maryland, got the constitution wrong and you’re the Supreme Court, you can tell a State Supreme Court hey you got the constitution wrong. So that was their argument and the Supreme Court said “we’re gonna take a pass at this one.”
Thomas: Hmm.
Andrew: [Laughs] So now let’s break that down a little bit and talk about the standards and kind of talk about how the Maryland Court came out. Ineffective assistance of counsel is governed by a 1984 Supreme Court case called Strickland v. Washington, it was written by Justice Sandra Day O’Connor who is well known to lawyers and law students for crafting exquisite balancing tests. She was a slightly – eh, slightly… [Laughs] She’d be a liberal on this Court but she was a right-of-center Justice appointed by Ronald Reagan, the first woman appointed to the Supreme Court, appointed by Reagan.
What happened in the Strickland case was kind of similar in some ways to what you have – well let me remove that gloss. I’m cognizant that folks are listening here and I don’t wanna draw any false analogies. Here’s what happened in Strickland: Strickland, in September of 1976 – I’m just reading from the Court’s opinion – planned and committed three groups of crimes, each group included kidnaping, assaulting, torture, murder, also attempted extortion and theft. He was part of a gang and his two accomplices were arrested and then once his other two accomplices were arrested, Strickland voluntarily surrendered to the police, gave a lengthy statement, and confessed to the third set of crimes and the third murder.
This was in Flordia, the State of Florida indicted him for kidnaping and murder and because he was indigent appointed an experienced criminal defense attorney to represent him. Strickland’s attorney was kind of like Gutierrez, filed a bunch of pretrial motions and discovery, had lengthy service as a criminal defense lawyer, but – and again, here’s sort of the dis-analogy-
Thomas: But let’s leave that as a cliffhanger to find out what the dis-analogy is! [Laughs] I like the most obscure cliffhangers that we can-
Andrew: I love it!
Thomas: Especially since you know, you blew the T3BE one, not that I’m upset or anything.
Andrew: Yeah, yeah.
Thomas: Anyway, find out the dis-analogy after this brief message.
[Commercial – forhims.com/oa]
Thomas: Okay, how is this attorney different from Gutierrez? Who, by the way, I won’t do my impression again because it’s too grating-
Andrew: [Laughs]
Thomas: -but if you wanna hear my impression go back to that old episode!
Andrew: Yeah, episode 107, it’s an outstanding impression.
Thomas: [Laughs]
Andrew: [Laughs] So here, rather than kind of giving up for unknown reasons, here we have real good reasons to understand why Strickland’s attorney kind of gave up, and that was he self-described (quote) “experienced a sense of hopelessness about the case when he learned that, against his specific advice, Strickland had also confessed to the first two murders.”
Thomas: [Laughs]
Andrew: “By the date set for trial, Strickland was subject to indictment for three counts of first-degree murder and multiple counts of robbery, kidnaping for ransom, breaking and entering and assault, attempted murder, and conspiracy to commit robbery. Respondent then waived his right to a jury trial, again acting against counsel’s advice, and pleaded guilty to all charges, including the three capital murder charges.” Okay.
Thomas: Huh.
Andrew: So I have some sympathy [Laughs] for a lawyer who’s client goes completely off the rails, but nevertheless in post-conviction hearings Strickland moved for a new trial for ineffective assistance of counsel for six different reasons. Five of them aren’t relevant, but one of them is relevant here and that is failure of his attorney to investigate and present character witnesses. He said, yeah okay maybe I screwed up by confessing to the murders when my lawyer told me not to confess to the murders, but he still could have lined up character witnesses.
Thomas: [Laughs] To say what? Ah, this guy’s confessions are often total BS, he’s such an idiot!
Andrew: [Laughs]
Thomas: Would that be the kind of character witness? He’s so unreliable that you can’t even believe his confessions?
Andrew: [Laughs] No, you would just – in the sentencing you would line up folks that would sort of beg for mercy and say this is somebody who can be rehabilitated, who’s been an upstanding member of the community, whatever, that sort of thing. So the Supreme Court – I may have biased this a little bit – denied Strickland’s ineffective assistance of counsel petition and they set up the two-part balancing test that has been applied ever since. That is, in order to win to get a new trial you have to show two things – this is really, really straightforward. Number one, you must show that counsel’s performance was deficient such that their errors were (quote) “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
I’m gonna – well, in fact, why don’t I unpack that a little bit here, again I’m just gonna read from the decision. That is that the lawyer’s conduct – while a lawyer has tremendous latitude in terms of how to structure and litigate a case. Sidebar, you hear me criticize lawyers on this show all the time and I rarely (other than if it’s Larry Klayman) will suggest that a lawyer – [Laughing] or the Earth Court guy – will suggest that a lawyer is incompetent for doing so.
Thomas: Hmm.
Andrew: I can say I strenuously disagree with how this lawyer is litigating this case, but as the Supreme Court recognizes, in most of those cases I would not say it falls below (quote) “an objective standard of reasonableness” (end of quote). But for somebody like Larry Klayman it falls below an objective standard of reasonableness.
Thomas: Plus if you ever need anyone to, you know, say anything about other lawyers that would get you disbarred, I, uh, I could be persuaded to fill in for you.
Andrew: Alright, excellent! [Laughs]
Thomas: [Laughs]
Andrew: I appreciate that! So that is – the Supreme Court notes that counsel must have wide latitude to make reasonable tactical decisions but we can look at a hypothetical objective standard of what is the minimum reasonable level that you would expect any lawyer to at least have in a trial. Assisting the defendant, showing him what the court calls undivided loyalty, represented without any conflicts of interest or anything like that. Advocating on the defendant’s behalf, counseling with him on important decisions. It’s not a hard and fast thing, it’s kind of an “I know it when I see it.”
Okay, is this lawyer engaged in the kind of conduct that you would expect from an objectively reasonable lawyer? And, crucial, this is page 669 in the decision, “counsel has a duty to make reasonable investigations or make a reasonable decision that makes particular investigations unnecessary.” So the claim being advanced by Syed here is one that could potentially be considered. The failure to investigate a witness is something that the Supreme Court has explicitly said yeah, if that’s not a fair justification then that can be deficient performance of counsel.
Thomas: Hmm, okay.
Andrew: But there’s a second criteria. Not all errors by your lawyer justify a new trial. They must have prejudiced the defendants ability to get a fair trial. So that standard – again I’m gonna go, this is page 696. “Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated” (that I just went through) “do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability,” (of a trial) “the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.”
So that’s the second prong. Reasonable probability that the error would have affected the outcome. Makes sense?
Thomas: Yeah, so how likely a court finds it that Adnan was actually innocent could play a part, right? If they look at the whole body of evidence and think, well okay, this is a totally open and shut case but maybe the lawyer forget to dot an “I” here, cross a “T” but it wouldn’t have made a difference because there’s overwhelming evidence, then they don’t necessarily get a new trial just because their lawyer messed something up, but if it’s more ambiguous maybe that dotted “I” actually would have made a difference then they could get a new trial. Is that it?
Andrew: That is exactly right. The only thing that I would insert into that is that what the Court is trying to do is ascertain what the jury would have done.
Thomas: Hmm, interesting.
Andrew: Because they’re not supposed to, I mean it sort of crosses this line. Appellate courts aren’t supposed to adjudicate facts, de novo, but in order to decide whether this would have made a difference you do kind of have to run back the limited use time machine. You have to say well how would this case have gone if this witness had been able to come forward? In fact, that’s where the Maryland Supreme Court came out. This was a 4-3 decision, the majority, and in fact three of the justices because there’s a concurrence that says it was neither, but the majority holding is that Syed’s counsel, Cristina Gutierrez, was deficient in failing to investigate Asia McClain, but not prejudicially so.
In making that determination, they really make two arguments here, they say first that it is a reasonable choice, that part of what Gutierrez did was made a decision to make Syed’s alibi witness on the day of the murder to be based on pattern and practice. The idea that Syed went to track practice every day after school and then immediately left track practice to go have prayer service at the mosque.
So you could see how – and I’m gonna read the exact language from his counsel in a minute, but you can see how having an alibi witness for that day – and by the way, I should talk about the specific fact. The timeline for the murder was estimated between 2:15 and 2:35, the subsequently discovered Asia McClain evidence is that she would testify that she saw Adnan in the school library between 2:15 and 2:35, so that’s an alibi.
The argument here is, yeah, but introducing evidence that on this day Syed went to the library undercuts the general argument that his counsel’s been trying to make all along which is no, no, no, this is not a kid who hangs around after school, this is a kid who, when school lets out, goes to track practice.
Thomas: Right.
Andrew: Then immediately leaves and goes to the mosque. So why is he skipping track practice to go to the library? You can see how that undercuts those statements. In pre-trial memoranda his counsel wrote “On January 13th” (that was the day of the murder) “the defendant attended Woodlawn High School for the duration of the school day, at the conclusion he remained at the high school until the beginning of track practice. After track practice he went home and remained there. The track coach testified that track practice was every day after school after their study hall from 4:00-5:30, 6:00pm, until attending services at the mosque that evening.
These witnesses will testify as to the defendants regular attendance at school, track practice, and the mosque, and that his absence would have been noticed. The notice also includes the names of over 80 individuals who would testify as to Mr. Syed’s routine involving track practice and the mosque.” Okay.
In other words, counsel had what they thought was a pretty reasonable determination of, I think I’m gonna go with the 80 witnesses that are gonna say yeah, this is a kid that just every day-
Thomas: Yeah.
Andrew: -goes to track, then comes home and goes to mosque, and goes to pray. Judge Watts’ concurrence, by the way, makes this argument even stronger. He’s the one judge that says counsel wasn’t even deficient in failing to investigate Asia McClain and says the failure to investigate might have been strategic.
Thomas: Yeah.
Andrew: Because it could have undermined the better alibi and it would have contradicted other statements that Syed had made to the police-
Thomas: Right
Andrew: -so it was potentially prejudicial. So that’s all the first set of arguments.
The second set of arguments is that at the end of the day, the conviction did not rest on the specific time of the murder.
Thomas: Hmm.
Andrew: This goes to-
Thomas: Because I mean there was a lot of, in Serial and in the subsequent stuff, there was a lot of problems pointed out with the police timeline-
Andrew: Yup,
Thomas: -that I think, probably legitimate.
Andrew: I agree, I agree.
Thomas: They tried to make it fit to the cell records and they might’ve messed up, but now that you lay that out that makes so much sense. They already had a specific plan regarding his alibi, and sure she might not have interviewed Asia McClain or whatever but, like you point out, I hadn’t really considered that. It might have been a worse idea.
Even if, hypothetically, just for the sake of argument, even if hypothetically maybe the police had the wrong day and maybe if Asia had the right day that would have been the actual, correct facts? But strategically for the timeline they were dealing with in the trial the way you put that makes sense. Where, look, it may not have even been a benefit to interview Asia McClain if they already had a bunch of people saying he’s always at track practice, we would’ve known if he had missed it, that’s already a better alibi anyway.
Andrew: Yeah, and fundamentally that is the argument that the majority deploys to say that, at minimum, this would not have been prejudicial. Even if Gutierrez had investigated Asia McClain she might have decided not to call her as a witness.
Thomas: Mm-hmm. No, that makes sense.
Andrew: Yeah! Again, I want to emphasize that this is a close case. The dissent goes the other way and says no, the State spent a lot of time putting on timeline evidence, putting on cell phone evidence, and having somebody who would have been an absolute alibi at the time that the murder was alleged to have taken place could have reasonably made a difference in how the jury made a determination. I don’t think that that’s – I think that that’s a perfectly reasonable dissent.
Thomas: Yeah.
Andrew: But failed to attract a majority. Then the question on appeal to the Supreme Court – again, the issue on appeal to the Supreme Court is did the Maryland Court of Appeals apply the Strickland standard for ineffective assistance of counsel properly?
Thomas: Hmm. So it’s not their job to look at the same facts and be like well we have a better decision than these dudes, they have to actually see if something was done wrong in how they applied the standard?
Andrew: Exactly right.
Thomas: Okay.
Andrew: Exactly right. So their argument was as follows – and again I’m gonna link the cert petition in the show notes, I’m gonna quote from it directly, pages 3-4.
“To evaluate Strickland prejudice, at least ten state and federal courts apply a simple approach: They compare the case that the State actually presented at trial with the case that the defendant would have presented if his attorney had been effective …
In the decision below, however, the Maryland Court of Appeals rejected this majority approach. Instead of analyzing the case that the State actually presented at trial, the court hypothesized a different case, one where the jury rejected the State’s theory of the time of Lee’s death in favor of some unpresented and unknown alternative timeline. According to the Maryland Court of Appeals, because McClain’s testimony did not undermine this hypothetical case—where Lee’s death might have occurred later in the day—the failure to present McClain’s testimony about Syed’s activities after school did not prejudice Syed’s defense.”
[Laughs] The response – again I’m gonna link the State’s response filed by our buddy Brian Frosh in the show notes as well. It was kind of a “huh?” [Laughs] Was to say that’s not the law, and we applied the law. There’s no – your sort of cherry picking together a bunch of different cases, we applied the two-prong Strickland test the way every court applies the two-prong Strickland test and there is no un-presented, actually presented versus hypothetical. All of it is a hypothetical and there isn’t really this split among the circuits. That argument begins on page 17 of the State’s brief.
I have to tell you, having read Strickland, having read the cases cited by both Syed’s lawyers and by the State of Maryland – again, I don’t fault Syed’s lawyers in any way, their job is to zealously advocate and represent their client. They did so, they made the best argument they could when they lost in the Maryland Court of Appeals. It is certainly worth taking a shot to see if the Supreme Court will intervene instead, but as we pointed out they were sort of hamstrung by having to argue that there was a legal error in the application.
Thomas: Hmm.
Andrew: I don’t read the cases the way they read those cases. How ‘bout I put it that way. I read the cases in the way that the State cites them in its opposition to cert brief, which is to say that sometimes courts find prejudice based on the failure to present alibi testimony, sometimes they don’t. It is intensely fact specific, and by the way that’s what O’Connor said back in Strickland. There is no hard and fast set of rules, it is a case by case determination based on the totality of the circumstances.
I wanna be careful here, you do not cite the fact that the Supreme Court denied cert as being the equivalent of the Supreme Court endorsing the rationale below.
Thomas: Right, yeah.
Andrew: So I wanna be 100% clear about that. What we can say is the Supreme Court did not grant cert in that case. By the way, that is the end of the road.
Thomas: Hmm. So there’s no other motions or anything?
Andrew: There’s nothing else, there’s no other motions.
Thomas: Hmm.
Andrew: I mean he could file a habeas petition, but-
Thomas: That’s not something he would have already done?
Andrew: He may have, I would have to examine that. So let me not opine about that on this particular episode, but the post-conviction relief for ineffective assistance of counsel, that has now been fully litigated all the way up to the State Supreme Court, the Maryland Court of Appeals, and the failure to have cert granted by the U.S. Supreme Court. That’s over. Again, I wanna go back to where we started. You are welcome to believe that Syed is innocent.
Thomas: Well and it sounds like – further than that, it sounds like this was a close call, you know?
Andrew: Absolutely.
Thomas: Sounds like it could’ve gone either way and I’m glad you laid it all out because I see the argument on either side. I’m not totally sure how I would’ve decided if I were having to make a decision. Sounds very close, but yeah, I don’t know. At any rate, one thing to make clear like you said, this wasn’t the Supreme Court ruling on Adnan’s guilt or his case as a whole or anything, it’s a very specific motion-
Andrew: Yup.
Thomas: They didn’t grant that.
Andrew: A motion crafted by his current set of lawyers.
Thomas: Mm-hmm.
Andrew: This is not me mischaracterizing, this is – if you wanna know why lividity was not a part of this then it’s Syed’s lawyers, that’s where you have to go. This was their decision, that their best shot was on the narrow grounds of-
Thomas: So they only get to choose one thing?
Andrew: No, no. Well-
Thomas: Oh.
Andrew: Look, let me go back. The trial court, they raised 9 separate issues before the trial court but the trial court ruled against them on 7 of those 9.
Thomas: Hmm.
Andrew: So you could have preserved for appeal those other 7 in the Court of Special Appeals. They chose not to.
Thomas: Hmm.
Andrew: They chose not to re-litigate that, presumably because again that’s a fact specific determination. Because it’s a fact-specific determination the State challenged those two grounds in the intermediary appellate court, affirmed on one, reversed on the other and then the Court of Appeals reversed on both. The cert petition pared down that other argument.
Again, there a couple of reasons – this is a really good question so let me kind of talk a bit about legal strategy. Oftentimes – you see this in legal pleadings, which is you use kind of the shotgun approach at the trial level and then you narrow down your best arguments when you’re on appeal.
Part of that is because you are limited in page count. So if you really want to explain in depth why you’re right on issue number one, and issue number one is the argument that your lawyers think is the strongest argument, Syed’s cert petition was – let’s pull up the exact length – was 33 pages long. You can’t write 33 pages – and the limit is 35. So you can’t write 33 pages on one issue and then also cram in 8 more at the end and do it any justice. The more issues you have the less depth you can go into any one particular issue.
There’s also a credibility aspect to that. So that’s why as a strategic matter you kind of pare down. You’re like alright, we took our shot, the court didn’t like 7 of these but they liked 2 of them, so okay we’re gonna defend those 2 on our first appeal. Okay, now we lost on waiver, we got one more shot let’s make our best argument and go for it, because if we don’t win at our best argument how likely are we gonna win on our second or fourth or seventh best arguments?
Thomas: Hmm.
Andrew: That’s part of the strategy, you collapse so that you can go into depth on the thing or things that you think you have a chance of winning on. Make sense?
Thomas: Yup!
Andrew: Cool! So there we go, hopefully we have done justice, I’m sure we’ll get some emails, we welcome them. Just engage with us in good faith. [Laughs]
Thomas: [Laughs]
Andrew: Why don’t we do, as a special C Segment I’ll do a little bit more on our T3BE question.
Thomas: Okay well before we do that, though, we’ve gotta thank our top patrons, our hall of famers, our all time greats here on Top Patron Tuesday!
[Patron Shout Outs]
Thomas: And now after thanking our amazing top patrons…
T3BE – Answer and Medium Dive
[Segment Intro]
Thomas: It’s time for, not only the T3BE answer but a little bit of a dive on it. A little bit of a medium to short dive on it.
Andrew: Yeah, yeah.
Thomas: So I got it right.
Andrew: So here was the question. [Laughs] Yeah. Here was the question that I spoiled the answer for you and all of our patrons. Plaintiff sues a defendant in federal court for injuries arising out of an accident involving the parties. Plaintiff alleged and presented evidence at trial demonstrating that the injuries had left her legs permanently paralyzed. The jury awards her $5 million in damages. Two months later the defendant was given a videotape made that day showing the plaintiff jogging with her doctor, and what’s the best way for the defendant to seek relief from the judgment? You said A, move for a new trial or in the alternative for remittitur to reduce the award in light of the shortened duration of the plaintiff’s injuries.
Thomas: Well in fairness, I said remit-it-tur because that’s what it is, but sure.
Andrew: That’s true.
Thomas: Again, more evidence for my ineffective counsel, can’t even pronounce all the letters in this word.
Andrew: The correct answer – yeah, you eliminated B and D-
Thomas: I mean I don’t know that I eliminated anything really.
Andrew: Yeah. [Laughs]
Thomas: These were all plausible for me.
Andrew: I’m gonna get to it. The correct answer was C, move for relief from the judgment-
Thomas: [Sighs] So close!
Andrew: -on the ground that the plaintiff committed a fraud in obtaining damages for permanent injuries.
Thomas: I was so damn close! [Groans] I would’ve been a genius!
Andrew: Let me tell you, the reason that that is a super hard answer is because moving for relief on the basis of fraud has a higher pleading standard.
Thomas: Yeah.
Andrew: It’s harder to prove fraud than it is to prove other stuff.
Thomas: But I actually thought of that! That it was like okay, but maybe the only actual way you can do this, though.
Andrew: Yes.
Thomas: Or is it the best?
Andrew: I wanna tell you, I am happy to lobby on your behalf because I am not pursuaded by the answer eliminating A.
Thomas: Ooh. Maybe we will get an appeal going!
Andrew: Yeah, I think an appeal is correct.
Thomas: So what would you have said? If you could try to put yourself in the mindset of not knowing what the answer was…
Andrew: So I very easily – I would have narrowed it down to A and C and I very easily could have gone with A because when you say “best way” that usually wants you to talk about – suggests that both are plausible but one is superior to the other, and not having to prove fraud is generally superior to having to prove fraud. Let me eliminate the others right away which were not good answers.
Thomas: Okay.
Andrew: B was move for relief from the judgment on the ground that the judgment was based on the jury’s mistaken belief that the plaintiff’s injuries would be permanent. That’s not what the fact pattern is. The fact pattern is that the plaintiff lied to the jury, it’s not that they had a mistaken belief about the permanence of the injuries, it was that plaintiff was faking her injuries.
Thomas: Hmm.
Andrew: And D, move for relief from the judgment on the ground that there is newly discovered evidence that the plaintiff’s injuries were not permanent, that’s also not correct. Newly discovered evidence is evidence that previously existed but could not have been discovered with reasonable diligence.
Thomas: Oh! I should have been able to figure that out, yeah.
Andrew: But here’s where I disagree. This is the National Council of Bar Examiners explanation of why A is incorrect, I’m gonna read it word for word, our patrons have already read this. “A is incorrect because under Rule 59(b), a motion for a new trial must be filed no later than 28 days after the entry of judgment.” Now that is true, and if this were meant to test “do you know that you have 28 days to move for a new trial under rule 59-
Thomas: What a brutal question!
Andrew: Yeah, it was a brutal question, it would be hard, except that Rule 59(b) that they cite is also cited in Rule 60, which allows you to seek relief. Rule 60(b) says “grounds for relief from a final judgment, order, or proceeding include (2),” (b)(2), “newly discovered evidence that with reasonable diligence could not have been discovered in time to move for a new trial under Rule 59(b)”
Thomas: Oh!
Andrew: Now the bar people say that it doesn’t count as “newly discovered evidence” because the videotape was made two months-
Thomas: After?
Andrew: -after the court entered judgment.
Thomas: Hmm.
Andrew: As a lawyer, I look at that and I say yeah, the newly discovered evidence is not the videotape, the newly discovered evidence is the fact that she was faking her injuries. That existed at the time of trial, or potentially existed-
Thomas: That’s like the thing, but evidence…
Andrew: Yeah, it’s like I’m saying, I think to make the argument – so you’re arguing against yourself which is always good, we steel man the other side – certainly where NCBE is coming down is they’re saying the videotape is the evidence and that is not newly discovered. Again, the classic newly – and they’re right if that’s the evidence because the classic newly discovered evidence is like in one of our Law’d Awful Movies, the parking slip that shows that the defendant was actually at the scene of the crime at the time and it was hidden by the conspirator who took it off a hobo. I’m forgetting all the intricate nest of MacGuffins to get to that parking slip in – I don’t even remember what the movie was. [Laughs] You know what we’re talking about, right?
Thomas: Yeah, what the hell was that?
Andrew: The congressional cufflink and it was all-
Thomas: Was that Matlock or something? That was a show wasn’t it?
Andrew: Oh, I thought it was a movie.
Thomas: Oh.
Andrew: In any event-
Thomas: Oh, yeah…
Andrew: -it was a series of MacGuffins each more MacGuffiny than the last.
Thomas: [Laughs] Yeah, it all blends together into one big bad law.
Andrew: [Laughs] Yes it does, that’s what we do for you people. So anyway, that’s the classic newly discovered evidence. Evidence that existed at the time of trial but you couldn’t find it-
Thomas: So wait.
Andrew: -through ordinary diligence because the plaintiff was hiding it or whatever. So if you consider the videotape as the evidence then I agree with you, that rules out option A-
Thomas: Yeah. But you’re saying-
Andrew: Under Rule 59(b).
Thomas: -just the fact that she could run is the evidence which did exist and was hypothetically-
Andrew: Presumably. Yeah, exactly.
Thomas: Oh, interesting. Okay.
Andrew: So it’s not a great fit, but in my view it kind of opens that crack a little bit. This is the – you wouldn’t get credit on the bar exam. This is what makes the bar exam, and I’m really glad we had a chance to do this, so maddeningly tough.
Thomas: This was a really tough question!
Andrew: Yeah. Because as you put it together, now you go back and you say what’s the best way? Okay, well the best way is in fact fraud because fraud is explicitly permitted – I read you Rule 60(b)(2), but Rule 60(b)(3) says “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:” reason number 3, “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.” So you don’t have to wade into the whole issue of well is this newly discovered evidence, is it not?
Thomas: Yeah.
Andrew: It’s pretty clearly by the facts fraud.
Thomas: I think it’s amazing with how difficult this question and how much I didn’t even know about why it was difficult-
Andrew: [Laughs]
Thomas: I still almost got it for kind of good reasons?
Andrew: Yeah!
Thomas: It’s so weird.
Andrew: Yeah.
Thomas: What a weird thing.
Andrew: So that’s Federal Rules 59 and 60, nice job, I’m sorry you don’t get credit. I think-
Thomas: Well we’ll see how the appeal turns out.
Andrew: Yeah, exactly. [Laughs]
Thomas: Do we need to assemble an en banc listener panel?
Andrew: Yeah, I think this is a cert petition so we just need to see if they’ve taken up the case or not, so we’ll check back in.
Thomas: Well fortunately I’ve stacked the judiciary with every patron that says I’m the top lawyer and you’re the second best? They’re all the panel. I did some strong arm constitutional hardball and the judiciary is entirely them. Sorry! [Laughs] The rules are fair, Andrew!
Andrew: I have been outmaneuvered, apparently!
Thomas: This all to get me from 53% to a 54% or something.
Andrew: [Laughs]
Thomas: [Laughs] Anyway, that was a thrilling ride and it would have been all the more thrilling had we not all seen the answer before the question. But that’s okay! Not to harp on it or anything. Naw, I’m just teasing you.
Andrew: Yeah! [Laughs] You’ve only mentioned it four times in this episode!
Thomas: Certainly live in a glass house when it comes to that! Just teasing you. Okay, yeah, thanks for listening everybody. Oh, sorry! We have to announce our big winner, I was so confused by the fact that we did a whole segment on this, but we are still in T3BE Land so Andrew, if your time machine is functioning properly now why don’t you tell us who the big winner is?
[Segment Intro]
Andrew: Alright Thomas, this week’s winners are Andy Lopata and Jason Ramsland on Twitter who I believe answered this question correctly without cheating. Andy says “It’s C because the Federal Rules of Civil Procedure allow setting aside the judgment for fraud. It’s not A, B, or D because it’s been 2 months which is pat the deadline for motion based on those reasons.” Jason Ramsland adds “FRCP 60 gives 1 year; FRCP 59 only 28 days.”
I don’t think that addresses the “could not have been discovered” portion on 59, but nevertheless, correct answer, right result for the right reasons, so congratulations Andy and Jason, and everyone should give them a follow on Twitter! That is @ajlopata and @JRRamsland. Andy and Jason, congratulations for being this week’s winners!
[Segment Outro]
Thomas: Alright thanks so much for listening everybody! That was a lot of fun. Yeah, I’m glad we got to touch on that Serial case and again, it’s all the more reason why I love that we have this show because you see these headlines, and I wouldn’t have known as a non-lawyer what the ruling on, what the motion is, all that stuff. It’s really important to break it down, have a detailed answer, an accurate answer about what’s going on, and that applies to everything, not just Serial. That applies to the Trump stuff and all that stuff. So great break down, Andrew! Hey, we’ll see everybody for a Rapid Response Friday!
Andrew: See you then!
[Show Outro]