EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, May 21, 2015

In 2001, the Court of Appeals of Maryland Rejected the Same Argument Made Against Adnan Syed's IAC Claim

Last week, I noted how the Maryland Attorney General cited one case in its Brief of Appellee in opposition to the claim that Adnan Syed received the ineffective assistance of counsel based upon his trial attorney's failure to contact potential alibi witness Asia McClain. That case was State v. Lloyd, 48 Md.App. 535, 540 (Md.App. 1981), and I noted in my post that Lloyd was (1) repudiated by the the Court of Appeals of Maryland in State v. Tichnell, 509 A.2d 1179 (Md. 1986); and (2) inapposite because the defendant in Lloyd confessed to the crime charged, meaning that calling an alibi witness would be suborning perjury.

The Brief of Appellee led me to wonder whether the Maryland Attorney General had cited any additional precedent in opposing a similar ineffective assistance of counsel claim raised by the defendant in In re Parris W., 770 A.2d 202 (Md. 2001). That led me to the Brief of Appellee in that case.

Here's the relevant discussion of the issue in the Brief of Appellee in In re Parris W.:

Parris W. is wrong when he asserts that his counsel's failure to subpoena alibi witnesses constitutes, in and of itself, plainly ineffective representation. In State v. Lloyd, 48 Md. App. 535,... this Court held that counsel did not render ineffective assistance by refusing to call alibi witnesses, considering that, in that case, his client confessed his criminal agency to him before trial. This Court stated:

Although the failure to call alibi witnesses presents a ground on which relief may be granted for ineffective assistance of counsel, the decision whether to call a witness is ordinarily a matter of trial tactics within the discretion of defense counsel. Id. at 540....

However, inadequate representation is not established by a mere showing that defense counsel has failed to interview and call all witnesses:

In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that he acted with diligence in supplying the names and addresses of alibi witnesses, and that alibi testimony would have been beneficial to his or her case. Id. at 541.

Yes, that's right, fourteen years ago, the Maryland Attorney General's Office tried to rely upon the same repudiated case in which the court only found effective assistance based upon the defendant's confession. Of course, the Court of Appeals of Maryland in In re Parris W. didn't cite to Lloyd in its opinion granting the defendant relief; instead, it cited to Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), and all of the other cases cited by Adnan's attorney in support of his ineffective assistance of counsel claim.

And now, here we are, fourteen years later, and the Maryland Attorney General's Office still can't find a better case to oppose the simple proposition that failure to contact an alibi witness is ineffective assistance.

-CM

http://lawprofessors.typepad.com/evidenceprof/2015/05/last-week-inoted-howthe-maryland-attorney-general-cited-one-case-in-itsbrief-of-appelleein-opposition-to-the-claim-that-adna.html

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It’s an overstatement to say Lloyd was “repudiated” by Tichnell; Tichnell is just saying that Lloyd was a pre-Strickland case and therefore the IAC test in Lloyd was replaced by Strickland. The holding of State v. Lloyd is still good law and continues to be cited for the point that defense counsel should not present evidence he/she knows to be false, which was the point that the State was making in footnote 4 of the brief in citing Lloyd.

See e.g.,Forbes v. State, 931 A.2d 528, 533 n.3 (Md.App.,2007): “In State v. Lloyd, 48 Md.App. 535, 429 A.2d 244 (1981), this Court made it “clear that when a defendant tells his attorney before trial that he committed the crime charged and the attorney is convinced that his client is telling the truth, the attorney is precluded ... from calling or presenting alibi witnesses who would offer perjured testimony.” Id. at 546, 429 A.2d 244.”

See also Tibbs v. U.S., 628 A.2d 638, 641 (D.C. Cir. 1993): “Counsel does have an obligation to defend with all his skill and energy, but he also has moral and ethical obligations to the court, embodied in the canons of ethics of the profession.... The ethical strictures under which an attorney acts forbid him to tender evidence or make statements which he knows to be false as a matter of fact.... His activities on behalf of his client are circumscribed by the principles and traditions of the profession and may not include advancing known false testimony in an effort to win his client's cause. Thornton v. United States, 357 A.2d 429, 437-438 (D.C.) (citations and internal quotation marks omitted), cert. denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626 (1976); see State v. Lloyd, 48 Md.App. 535, 545-47, 429 A.2d 244, 250 (1981) (“when a defendant tells his attorney before trial that he committed the crime charged and the attorney is convinced that his client is telling the truth, the attorney is precluded under [an ethical rule] from calling or presenting alibi witnesses who would offer perjured testimony”).”

Posted by: Nine9fifty50 | May 21, 2015 11:03:04 PM

That is the 64 thousand dollar question—whether Mr. Urick dissuaded the alibi witness from testifying—or, the alibi witness made is spinning to cover for what looks like a history of deeply ambivalent behavior in this matter. I think it's going to be hard to prove. But does it have to be proved? Or is the standard only the possibility that he dissuaded her? Not sure what you mean. What are the odds that no one from the 1st and 2nd trials reached out to her and then when she is subpoenaed by Brown, she dodges the subpoena? Too bad there is no record of Isley, I was just going to ask you what happened in that case, when you wrote this line!

Posted by: Badger | May 22, 2015 6:08:29 AM

Nine9fifty50: That's exactly my point. Lloyd now only stands for the proposition that defense counsel can't call an alibi witness when his client has confessed because that would be suborning perjury. Unless a case involves that unique factual context, Lloyd tells us nothing about broader IAC issues. So, Lloyd is both factually and legally irrelevant to Adnan's case.

Badger: I laid that out a bit here:

http://lawprofessors.typepad.com/evidenceprof/2015/05/i-was-hoping-to-be-able-to-do-a-post-about-the-states-reply-brief-in-the-adnan-syed-case-but-the-state-has-asked-for-another.html

Basically, Adnan doesn't have to prove anything definitive or exclusive. Even if Asia was reluctant to testify before contacting Urick, there's "misconduct" if he might had made her even more reluctant.

Posted by: Colin Miller | May 22, 2015 6:11:37 AM

Whether or not one agrees with the State's argument, the state is properly citing Lloyd to make its general point that CG should not use Asia if she knew the information was false. Lloyd is cited for this general point in cases not involving confessions, so It would be too narrow a reading to say Lloyd is irrelevant unless the situation involves knowing a witness is going to offer false testimony based on the defendant's confession to the crime,

In terms of the applicable IAC test, the State applied Strickland, of course.

Also, the court in In re Parris did not have reason to cite Lloyd given that there was no suggestion that counsel failed to present alibi witnesses on the basis of knowing they were offering to lie: ("In fact, defense counsel conceded that the scheduling error was his and that his mistake was the sole reason for the witnesses' failure to appear for the hearing.")

Posted by: Nine9fifty50 | May 22, 2015 8:06:07 AM

Nine9fifty50: In both Forbes and Tibbs, the courts cited Lloyd for the proposition that an attorney can't call an alibi witness when the defendant has confessed and the attorney believes that confession. Lloyd, Forbes, and Tibbs have nothing to do with failing to contact an alibi witness based upon not believing the alibi witness. And Lloyd has no relevance except in cases in which the client confesses.

Posted by: Colin Miller | May 22, 2015 8:22:58 AM

My first point is that Lloyd is still being cited; I found it odd that the post accuses the State of using a case which had been "repudiated."
See e.g., Cirincione v. State, 119 Md.App. 471, 492 (Md.App. 1998): “Ultimately, a decision whether to call any particular witness is essentially tactical in nature; State v. Lloyd, 48 Md.App. 535, 540, 429 A.2d 244, 247 (1981); Shelton v. State, 3 Md.App. 394, 401, 239 A.2d 610, 615 (1968); and we perceive no hard and fast rule that a decision not to call supplementary experts will necessarily be an inferior decision.”

On the second point, we'll just have to disagree -- I would argue that this case is still being used for the obvious confession cases as well as for the general proposition regarding defense counsel's ethical obligation not to provide false information (whether the defendant himself confessed; the witness offers to lie; other investigation shows the information is false) as well as to the issue of attorney-client privilege.

See e.g., Venable v. State, 108 Md.App. 395, 407 (Md.App.1996): “Mrs. Montgomery was not a party to this case. The prosecutor was therefore entitled to ask her whether she had ever discussed the case with defense counsel. The transcript shows, however, that Ms. Montgomery was never asked this question. If the prosecutor had asked the right question and received a “no” answer from the witness, defense counsel would have been under an ethical obligation to correct the record. Attorney Griev. Comm'n v. Sperling, 296 Md. 558, 563, 463 A.2d 868 (1983); State v. Lloyd, 48 Md.App. 535, 542, 429 A.2d 244 (1981). Such a correction, however, could easily have been made during redirect examination, without the need for defense counsel to take the stand.”

Posted by: Nine9fifty50 | May 22, 2015 1:11:20 PM

Thanks Professor for directing to your previous blog. Will the fact that Urick was no longer a prosecutor in Baltimore at the time he spoke with Asia have any bearing?

Posted by: Badger | May 22, 2015 2:07:13 PM

Nine9fifty50: An opinion can be repudiated on one ground but still valid on another ground.

Badger: I don't think it matters because Urick was the prosecutor on the case and still worked for the State. In the Wiener case that I cited yesterday, the misconduct was not by the people handling the defendant's case (directly, at least).

Posted by: Colin Miller | May 23, 2015 3:12:06 AM

Thanks for your answers Professor Miller.

Posted by: Badger | May 23, 2015 7:47:00 AM

Nine9fifty50: How does CG *know* McClain will offer false testimony without contacting her? It seems to me the IAC rests not on CG's failing to call McClain to the stand- which could be a tactical decision. It rests on her failing to even follow up on the information that an alibi witness existed. Even had Syed confessed murdering Hae Min Lee to CG, that wouldn't have ruled out McClain as an alibi witness. The state presented a case which argued Lee was killed within a specific window of time. If this hypothetical confession to CG involved a murder at a different time than that posited by the state, McClain isn't going to be offering false testimony if she rebuts the state's timeline.

The reading you're giving Lloyd suggests a defense lawyer who knows his client is guilty of the crime is precluded from trying to get a not guilty verdict. That seems....wrong.

Posted by: bacchys | May 24, 2015 4:23:49 PM

To be clear, I make no argument regarding the facts of this case (e.g.,whether or not CG made an investigation of Asia; what basis did CG have for telling Adnan that Asia had the wrong day). My only point was concerning the applicable law and that from a quick search, I can see that Lloyd is still good law and that there seems to be nothing unusual or underhanded for the State to cite Lloyd and the rules of professional conduct for the point it was making.

I think the above quote from Tibbs v. U.S. makes clear that the courts recognize that a defense attorney should not be precluded from presenting a defense for a guilty client; but it is equally clear that defense attorneys cannot knowingly offer testimony that he/she knows is false.

For example, see ABA Model Rules of Professional Conduct, Rule 3.3 Candor Toward The Tribunal:
(a) A lawyer shall not knowingly:
***
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Comment on Rule 3.3:
"[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client’s wishes. This duty is premised on the lawyer’s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence."

"[6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness's testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false."

Posted by: Nine9fifty50 | May 24, 2015 11:39:18 PM

Nine9fifty50: I'm not saying that it was underhanded to cite Lloyd. I am saying, however, that Lloyd is irrelevant according to the State's own logic. As I noted in my original post on the State's brief, the State noted that two of the cases cited by Adnan's attorney in support of Adnan's claim that his attorney was ineffective for failing to seek a plea deal "pre-date Lafler and Frye, the two Supreme Court decisions that clarified the constitutional obligations of counsel in this context...."

Similarly, the Lloyd case pre-dates Strickland, the Supreme Court decision that clarified the test for IAC. The case repudiating Lloyd noted the exact same thing.

Posted by: Colin Miller | May 25, 2015 3:44:45 AM

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