Friday, March 30, 2018
Analyzing the Four Cases Cited by Judge Graeff in Her Dissenting Opinion That Would Have Denied Adnan Relief
As I noted in yesterday's post, Judge Graeff dissented from the Court of Special Appeals Maryland granting Adnan a new trial. Judge Graeff dissented based upon the conclusion that the defense had failed to prove that Cristina Gutierrez was deficient in failing to contact prospective alibi witness Asia McClain. I've previously noted on this blog that I've been unable to locate a single case in which a court found that an attorney acted properly despite failing to contact an alibi witness brought to her attention by a defendant who maintains his innocence. In its briefing and oral arguments, the State also cited no such cases.
In her opinion, Judge Graeff cited four cases, and these cases are likely to be at the heart of briefing and oral argument if the Court of Appeals of Maryland allows the State to appeal. So, what are those cases?
Broadnax v. State
Judge Graeff leads with Broadnax v. State, 130 So.3d 1232, 1236 (Ala. Crim. App. 2013), in which Donald Broadnax was convicted of murdering his wife and her grandson. Broadnax told the police and defense counsel that he was at his job at Welborn Forest Products at the time of the murders. After he was convicted, Broadnax brought an ineffective assistance of counsel claim, alleging that his trial counsel should have investigated the work release center where he resided, which would have uncovered alibi evidence that he was at the center at the time of the murders. The court denied Broadnax release, and Judge Graeff notes that
Although Broadnax did not involve a failure to investigate an alibi witness identified by the defendant prior to trial, it does illustrate the principle that a decision not to investigate a certain defense does not constitute ineffective assistance of counsel if it is reasonably based in trial strategy.
It's confusing to me that Judge Graeff led with this opinion because, as she acknowledges, it's not on point and doesn't resemble the factual or legal context presented by the Adnan Syed case. Immediately after discussing this case, Judge Graeff then notes that "[t]wo other cases, however, reach the same conclusion in the circumstance where the potential alibi witness was identified by the defendant."
Commonwealth v. Rainey
The first of these cases was Commonwealth v. Rainey, 928 A.2d 215 (Pa. 2007), out of the Supreme Court of Pennsylvania. Michael Rainey was convicted of first-degree murder in connection with a robbery. After he was convicted, Rainey appealed, claiming his trial counsel was ineffective based upon failing to contact five prospective alibi witnesses.
When Appellant was arrested, he provided a statement to police admitting that he was present when the robbery of [Carroll] Fleming occurred....
Moreover, counsel pursued a trial strategy of conceding Appellant's involvement in the crime but arguing that the facts of the case did not demonstrate first-degree murder. Appellant's purported alibi evidence would have contradicted this defense strategy, which was reasonable given the testimony of [accomplices Kevin] Lewis and [Alvin "Eyeball"] Morgan.
So, Rainey is a case in which the defendant admitted to being at the crime scene, with the defense strategy being to try to minimize his culpability in the crime; therefore, an alibi defense would make no sense. As I noted in a prior post, Maryland has a similar case -- State v. Lloyd, 48 Md.App. 535, 540 (Md.App. 1981) -- but neither of these cases has any relevance to a case like Adnan's case, in which (as far as we know) he has always maintained his innocence. This distinguishes his case from cases like Rainey and Lloyd, in which calling an alibi witness would actually be suborning perjury.
Weeks v. Senkowski
The second of these cases was Weeks v. Senkowski, 275 F.Supp.2d 331 (E.D.N.Y. 2003), out of the Eastern District of New York. In Weeks, Daniel Senkowski was convicted of killing two children. He thereafter appealed, claiming that he received the ineffective assistance of counsel based upon his trial counsel's failure to contact seven alibi witnesses he had mentioned. The first thing to note about this case is that the court held that "Petitioner's claim is rejected on the ground that it is procedurally barred." Therefore, the court only addressed the merits of the claim in dicta, which is not precedential.
Next, the court noted that Senkowski's claim failed because he failed "to append affidavits from six of these seven potential alibi witnesses, as required by New York procedure." In other words, Senkowski was in the same position as Adnan Syed after his first PCR proceeding in which Asia McClain did not testify. Finally, the court held, that, even with the affidavit from the one alibi witness,
there can be little doubt that trial counsel's refusal to investigate the potential for an alibi defense—if, indeed, he refused to do so—was a sound strategic choice. Among the seven alibi witnesses petitioner lists, three were convicted of having participated in the same murders for which petitioner was being tried. One had already been convicted, one was on trial with petitioner, and one was dead. Trial counsel was not ineffective for failing to pursue a trial strategy in which petitioner defense would be that he was with the other murderers drinking in a different location; to do so would require petitioner to, in essence, disprove the state's ironclad case against the other defendants. Instead, counsel reasonably channeled his efforts toward suggesting to the jury that petitioner was not at the crime scene where his codefendant and the other defendants were committing this heinous crime.
So, I'm not sure that much meaningful can be drawn from Weeks. The relevant portion of the opinion is dicta, there were no statements from 6/7 alibi witnesses, and several of those alibi witnesses were alleged co-conspirators. I don't really see how this could help the State's case.
Weaver v. State
The last case cited by Judge Graeff was Weaver v. State, 114 P.3d 1039 (Mont. 2005), out of the Supreme Court of Montana. In Weaver, William confessed killing James Fremou (Fremou) to Anthony “Shorty” Dye (Dye), his Georgia prison cellmate. After he was convicted, he appealed, claiming that trial counsel -- Margaret Borg -- rendered ineffective assistance of counsel by failing to interview several witnesses, including his wife, an alibi witnesses In rejecting this claim, the Supreme Court of Montana held that
A review of the record demonstrates that Borg knew the possible accounts of exculpatory testimony that may have been solicited from Weaver's list of potential witnesses. Borg further testified that “[t]here were lots of witnesses in this case that said so-and-so told me this. So-and-so told me that. Someone confessed. Someone said they were there. Someone said this and that and something else. Crego had followed all of those leads,” and conceded at trial that the State had considered other suspects.
It appears that Borg weighed all of the possible exculpatory testimony in light of the “squirrelly” characters of Weaver's potential witnesses and made a “reasonable decision” that investigating those witnesses proved unnecessary....This decision seems particularly apt given that Borg elicited similar exculpatory testimony, that would have been provided by Weaver's list of potential witnesses, from Crego, the State's chief witness. We conclude that Weaver fails to demonstrate that Borg's decision not to investigate potential witnesses fell below an objective standard of reasonableness.
From the opinion itself, this seems like it could be that one case in which failure to contact an alibi witness was found unreasonable, albeit with a very different factual context. But when you look at the briefing in the case, it becomes clear what was going on. In the State's brief, they note that "Weaver complains that Borg did not call his wife as an alibi witness. His assertions did not overcome the court's finding that Borg was credible when she testified that Weaver did not want to involve his wife." Brief of Respondent, 2004 WL 3101876 (Mont. 2004).
So, assuming this is a fair characterization of the appellate proceedings, Weaver was denied relief based on a determination that trial counsel credibly testified that Weaver told him not to contact his wife. And, if that's true, Weaver provides no support for denying Adnan relief.