Like millions of others, I was obsessed with the Adnan Syed case made famous by the "Serial" podcast. This case was back in the news recently, as Syed got back into court to argue that he is entitled to a new trial based on his trial lawyer's ineffectiveness.  

As an appellate lawyer, ineffective assistance of trial counsel is something that I frequently research and write about. It is one of the most difficult issues to successfully appeal on, and the Syed case is a good illustration of why that is.  

As anyone who is familiar with this case knows, Syed had an alibi witness named Asia McClain, who apparently saw and spoke to Syed in the school library at the same time that he supposedly was murdering his ex-girlfriend. Syed told his trial lawyer about Asia.

Most trial lawyers, armed with this information, would have sent their investigator to interview Asia as soon as possible. Obviously, an alibi of this nature could have totally called into question the State's theory of the case. Depending on how credible Asia was, her testimony could have been the most important piece of evidence presented in Syed's defense. Inexplicably, Syed's trial lawyer never contacted Asia to gauge the value of her testimony. This failure is the reason why Syed should be granted a new trial.   

Generally, to successfully prove a trial lawyer's ineffectiveness, the appealing defendant must establish (a) that his attorney performed deficiently, that is that the lawyer's performance fell below the standard of what a reasonable trial lawyer would have done under the circumstances, and (b) that the lawyer's deficiency prejudiced, or harmed him. Prejudice requires a showing of a reasonable probability that, had the trial lawyer done or not done whatever they are accused of, the outcome of the proceeding would have been different.

The first prong, deficiency, is very difficult to overcome. At a hearing of the nature Syed just had, the trial lawyer would typically testify to his or her reason for having made the decision they made. The appellate courts will not condemn a lawyer's informed decision regarding trial strategy. As long as the lawyer testifies to having a strategic reason for their decision, the ineffective assistance claim will normally fail.

For example, in Syed's case, his trial lawyer may have interviewed Asia and determined that she would not be a good witness because she was not positive on the date or time. This would arguably be a legitimate reason not to call Asia to testify. The problem is, again, that Syed's lawyer never even interviewed Asia. Thus, how could she have had a strategic reason for not calling her as a witness when she did not even investigate the alibi? A strategic decision must be informed by a reasonable investigation. This is one reason why Syed's claim should be successful. A reasonable trial lawyer would have interviewed Asia.

The other prong, prejudice, oftentimes requires consideration of the strength of the evidence used to convict the defendant. If the evidence was overwhelmingly in favor of guilt, any error made by the trial lawyer is less likely to have harmed the defendant. In the Syed case, the evidence of guilt was hardly overwhelming. In fact, his conviction hinged primarily on the testimony of a witness whose credibility was highly questionable. For this reason, Syed should be able to establish the prejudice component of his claim.

I would guess that 95% of all ineffective assistance claims fail. It is a very high burden for an appealing defendant to meet. Syed's claim regarding the alibi witness is about as strong a claim of ineffectiveness that I have seen. The case, and the particular claim of ineffectiveness, is a reminder about how important it is to investigate every potential avenue of defense.