EvidenceProf Blog

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

Friday, August 24, 2018

THE Most Important Case for the Alibi Issue in the Adnan Syed Case

In a comment on yesterday's post, a reader asked me to comment on Cullen v. Pinholster, 563 U.S. 170 (U.S. 2011), the Supreme Court case the State cites extensively in its brief in the Adnan Syed case. Pinholster is what I would regard as a garden variety ineffective assistance of counsel case. Scott Pinholster was convicted of first-degree murder. During Pinholster's sentencing hearing,

[d]efense counsel did not call a psychiatrist, though they had consulted Dr. John Stalberg at least six weeks earlier. Dr. Stalberg noted Pinholster's “psychopathic personality traits,” diagnosed him with antisocial personality disorder, and concluded that he “was not under the influence of extreme mental or emotional disturbance” at the time of the murders.

After he was given the death penalty, Pinholster claimed that the failure to call a psychiatrist at sentencing was ineffective assistance of counsel, and the Ninth Circuit Court of Appeals partially granted him relief. The Supreme Court, however, reversed, concluding that

[t]he Court of Appeals was required not simply to “give [the] attorneys the benefit of the doubt”...but to affirmatively entertain the range of possible “reasons Pinholster's counsel may have had for proceeding as they did.”

The State claims that the courts in Maryland are similarly required to affirmatively entertain the range of possible reasons Cristina Gutierrez might not have contacted Asia McClain. I would contend, however, that this reasoning is wrong. This is the analysis that applies when trial counsel has done the necessary investigation.

In Pinholster, trial counsel consulted with an expert -- Dr. John Stalberg -- before making the strategic decision not to call him at the sentencing hearing, meaning that the courts needed to entertain the range of reasons why trial counsel might not have called him. Similarly, there are manifold cases in which trial counsel contacts a prospective alibi witness and decides against calling him/her at trial, with the courts thereafter having to entertain the range of reasons why trial counsel might have decided not to call the alibi witness. In both of these cases, trial counsel did the legwork needed to make such a decision.

These cases stand in stark contrast to cases like Adnan's case in which trial counsel fails to make initial contact with the alibi witness. In these cases, the courts aren't required to entertain the range of possible reasons why trial counsel didn't contact the alibi witness; instead, “it is unreasonable not to make some effort to contact [alibi witnesses] to ascertain whether their testimony would aid the defense.” Grooms v. Solem, 923 F.2d 88, 90 (8th Cir.1991).

But let's say that the Court of Appeals of Maryland does apply Cullen v. Pinholster. I did a Westlaw search of adv: "Cullen v. Pinholster" and alibi, and the first result after Cullen itself was Foster v. Wolfenbarger, 687 F.3d 702 (6th Cir. 2012), and it's pretty much the perfect case for Adnan.

In Foster, Demetrius Foster was charged with first-degree murder in connection wit the death of Bobby Morris in Detroit, Michigan at about 2:45 P.M. on November 17, 1998.

Prior to trial, Arthur Daniels sent a letter to Foster's trial counsel, claiming that Foster was at his home from 2:15 to 6 a.m. on the day of the shooting. Foster's trial counsel eventually spoke to Daniels over the telephone for roughly fifteen to twenty minutes. Daniels was not called as a witness during trial.

At the close of trial, the jury deadlocked on the first-degree murder charge and convicted Foster on the lesser included charge of second-degree murder (which, unlike first-degree murder, doesn't require proof of premeditation).

After he was convicted, Foster appealed, claiming that he received the ineffective assistance of counsel. At a hearing on that claim, 

trial counsel stated that he decided not to pursue the alibi defense based on his interview of Daniels. Trial counsel testified that he found Daniels's testimony to be "vague," and was concerned that Daniels would be a poor witness.

Foster's appeal eventually reached federal district court, which

concluded that counsel's ineffectiveness turned not on whether trial counsel's conclusion regarding Daniels was a reasonable strategic judgment, but rather on whether it was reasonable not to further investigate possible support for an alibi defense in light of Daniels's testimony. Foster v. Wolfenbarger, No. 04–73794, 2010 WL 3341534, at *1 (E.D.Mich. Aug. 24, 2010)  (unpublished). “If trial counsel truly believed that the witness's testimony sounded ‘vague,’ he should have done more to investigate the alibi.” Id. Since it is undisputed that trial counsel did not perform any additional investigation beyond briefly interviewing Daniels, the district court concluded that trial counsel was deficient:
 
As counsel did not perform a thorough investigation into the alibi, his decision not to present the alibi cannot be considered sound trial strategy. Trial counsel should have investigated further, including ascertaining whether any other individual was present who could support the alibi.

In reviewing this decision, the Sixth Circuit began by analyzing the applicable law:

“The duty to investigate derives from counsel's basic function, which is to make the adversarial testing process work in the particular case.” Towns v. Smith, 395 F.3d 251, 258 (6th Cir.2005) (quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)) (internal quotation marks omitted). “This duty includes the obligation to investigate all witnesses who may have information concerning his or her client's guilt or innocence.” Id. at 258. “A purportedly strategic decision is not objectively reasonable when the attorney has failed to investigate his options and make a reasonable choice between them.” Id. (internal quotation marks omitted). In fact, “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052).

Applying this law to the facts at hand, the court was easily able to conclude that trial counsel was ineffective:

Here, trial counsel's only investigation with regard to the alibi defense was to question Daniels, over the telephone, for approximately fifteen to twenty minutes. Even crediting trial counsel's conclusion that Daniels would make a poor witness, that does not represent a full investigation of the alibi defense under the circumstances. While Daniels might have been a poor witness, trial counsel did nothing to investigate the other two individuals at the home with Daniels who might have information concerning Foster's alibi theory.[2] Either of these two individuals, or all three of the witnesses collectively, might have overcome any deficiencies in Daniels's testimony and demeanor. Trial counsel did nothing to explore these possibilities.

[2] Trial counsel could not recall whether anyone told him that there were two other people at the home with Daniels during the hours in question. This does not affect the outcome of this appeal. Even if Daniels did not volunteer the names of the other two individuals at the home, trial counsel should have asked about potential corroborating witnesses. The fact that trial counsel did not ask such an obvious and common-sense question demonstrates the lack of investigation by trial counsel.

The Sixth Circuit then turned aside the State's argument that trial counsel could have decided not to further pursue the alibi because it would have conflicted with some other trial strategy, concluding that

the alibi defense was completely consistent with, and in fact complimentary to, trial counsel's theory of mistaken identification. The fact that one or more individuals would place Foster in a different location at the time of the shooting supports the premise that Hollins misidentified Foster. In fact, trial counsel admitted this during the Ginther hearing. Thus, this is not a situation where defense counsel is required to choose between two different avenues and pick the theory of the case that counsel believed was stronger. Instead, trial counsel chose not to investigate an avenue that potentially could have bolstered the defense that counsel was already pursuing.

Finally, the Sixth Circuit gave great deference to the trial court's opinion regarding Daniels's credibility in finding that trial counsel should have further pursued his alibi claim:

Finally, we note that the trial court concluded that Foster's counsel was deficient. We give due deference to the conclusions of the trial judge on the effectiveness of counsel, because “[t]he judge, having observed the earlier trial, should have an advantageous perspective for determining the effectiveness of counsel's conduct and whether any deficiencies were prejudicial.” Massaro v. United States, 538 U.S. 500, 506, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). The trial judge here heard the testimony of both Foster's counsel and Daniels, and based on that testimony found that Foster's counsel should have pursued the alibi theory. While the trial court's ruling is not a dispositive basis for granting relief, it provides support for the district court's rationale and our own conclusion. See Leonard v. Michigan, 256 F.Supp.2d 723, 732 (W.D.Mich.2003) (giving deference to the state trial court's findings on trial counsel's deficiencies and deeming the state appellate court “unreasonable” for not doing the same).

It's hard to imagine a stronger case for Adnan:

-Demetrius Foster and Adnan Syed were both charged with murder;

-In Foster, a prospective alibi witness -- Arthur Daniels -- sent trial counsel a letter. In Adnan's case, a prospective alibi witness -- Asia McClain -- sent Adnan two letters that he showed to trial counsel;

-In Foster, the alibi letter did not mention two other witnesses to the same alibi, and trial counsel couldn't recall whether anyone had mentioned these two other witnesses before trial. In Adnan's case, Asia's first alibi letter said, "My boyfriend and his best friend remember seeing you [at the library] too;"

-In Foster, trial counsel called the prospective alibi witness, talked to him for 15-20 minutes, and decided not to further pursue the alibi defense based on believing that the alibi witness was "vague" and would be a bad witness. In Adnan's case, trial counsel didn't call the prospective alibi witness;

-In Foster, the prospective alibi witness later testified and was deemed credible by the trial court. In Adnan's case, the prospective alibi witness later testified and was deemed credible by the trial court (Judge Welch).

In other words, Foster is the mirror image of Adnan's case except for the facts that (1) Cristina Gutierrez didn't even call her prospective alibi witness; and (2) it is unclear whether Foster's counsel was aware of the two other prospective alibi witnesses while it is 100% clear that Gutierrez was aware of at least one other prospective alibi witness (defense notes; defense notes).

Moreover, the State in Foster made some of the same arguments that the State is making in Adnan's case: that the alibi witness was too vague, that the alibi witness wouldn't be a good alibi witness, that the alibi witness would have contradicted the defense's trial strategy. The Sixth Circuit, however, turned all of these arguments aside. Given that Gutierrez did even less than defense counsel in Foster, there's an exceedingly strong argument that she was ineffective.

-CM

http://lawprofessors.typepad.com/evidenceprof/2018/08/in-a-comment-on-yesterdays-post-i-reader-asked-me-to-comment-oncullen-v-pinholster563-us-170-us-2011-the-supreme-co.html

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Comments

Why do you call it “Pinholster” as opposed to “Cullen”? Is there some convention?

Posted by: Michael | Aug 24, 2018 8:52:56 AM

Michael: Pinholser is the defendant's name, which is why I used it.

Posted by: Colin Miller | Aug 24, 2018 9:18:20 AM

This is also interesting because in the other cases cited by the state, the attorneys gave non-strategic reasons for not calling/investigating the witnesses (e.g., ran out of time/mistake), hence ineffective assistance. This was a ground the state were attempting to distinguish on - but this attorney gives a strategic reason, and was still found to be ineffective, so much harder to distinguish, and this aspect also helps to overcome the deceased attorney problem.

Posted by: Cupcake | Aug 25, 2018 10:14:13 AM

The attempts to argue that ignorance is a strategy never seem to be in good faith.

Posted by: bacchys | Aug 28, 2018 11:33:27 AM

"I would contend, however, that this reasoning is wrong. This is the analysis that applies when trial counsel has done the necessary investigation."
I am curious as to how you reached this conclusion based upon the actual text of Pinholster:
"But Strickland specifically commands that a court must indulge the strong presumption that counsel made all significant decisions in the exercise of reasonable professional judgment.

There comes a point where a defense attorney will reasonably decide that another strategy is in order, thus making particular investigations unnecessary. Those decisions are due a heavy measure of deference. The California Supreme Court could have reasonably concluded that Pinholster’s counsel made such a reasoned decision in this case."
(internal citations and quotations omitted).

In other words, the presumption applies to all decisions and that includes the decision to not investigate certain strategies. And if you go prior to the above-quoted portions of the decision, it is clear that the court is talking about a decision regarding whether or not to investigate. Or you could just look to the language of Strickland itself where it is explicitly stated that a reasonable decision will make some investigations unnecessary: "Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."

In other words, you're making a distinction that Pinholster's requirement that judges "affirmatively entertain the range of possible reasons [defendant's] counsel may have had for proceeding as they did" applies only to decisions after a reasonable investigation. The explicit language of the opinion is to the contrary, as is Strickland. This requirement also applies to decisions directed to whether or not to investigate an issue. It's telling that you went to a Sixth Circuit opinion for support instead of addressing the Supreme Court decision head on. Furthermore, even in Foster, Pinholster was not relied upon in the discussion of the investigation issue. Why didn't you mention that Foster only cites Pinholster for the fact that Strickland decisions are reviewed de novo? Pinholster is never cited in the discussion regarding the investigation of the alibi witness.

Posted by: Really Colin? | Aug 29, 2018 6:09:43 AM

Really Collin: I think I agree with most of what you wrote. Where we seem to differ is the point at which an attorney can reasonably decide on another strategy is in order when presented with an alibi witness by the defense counsel. My reading of the case law is that, in such a situation, defense counsel at least needs to attempt to contact that alibi witness before discharging her duty under Strickland. Conversely, when defense counsel has contacted and done a reasonable investigation of that alibi witness, she can decide on another strategy. Of course, in Adnan’s case, there was neither contact nor an alternate strategy (because no one testified to Adnan’s routine between school and track practice). And I think that Pinholster, which dealt with an attorney who contacted an expert but decided against him, is entirely consistent with that reading.

I’m open to being wrong, but, if I am, I would expect there to be at least one case in which the failure to contact an alibi witness presented to the defense by a defendant was found to be reasonable.

Posted by: Colin Miller | Aug 29, 2018 8:23:13 AM

First, I feel like you're back tracking here. You said you agree with most of what I wrote, but most of what I wrote was arguing that the Pinholster directive to "affirmatively entertain the range of possible reasons [defendant's] counsel may have had for proceeding as they did" applies to decisions to not investigate. Yet, you say in the blog post:

"he State claims that the courts in Maryland are similarly required to affirmatively entertain the range of possible reasons Cristina Gutierrez might not have contacted Asia McClain. I would contend, however, that this reasoning is wrong. This is the analysis that applies when trial counsel has done the necessary investigation.

These cases stand in stark contrast to cases like Adnan's case in which trial counsel fails to make initial contact with the alibi witness. In these cases, the courts aren't required to entertain the range of possible reasons why trial counsel didn't contact the alibi witness …"

Second, it sounds like you're applying a mechanical rule ("You must investigate an alibi!"), which Strickland clearly prohibits.

PS – Sorry if this is a double post. I couldn't remember if I hit post or your ad server refreshed my page before I could hit post.

Posted by: Really Collin? | Aug 30, 2018 5:48:20 AM

Really Collin: Here’s the way I see it. First, Strickland, "[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Second, under case law from across the country, courts have generally found that the duty to make reasonable investigations includes the duty to contact a prospective alibi witness and that an attorney cannot make a reasonable decision to forgo contacting such a witness. This duty might be absolute, like the duty to communicate a plea deal to the defendant, or it may be subject to narrow exceptions (e.g., the alibi witnesses poses a risk to the safety of the witness). But, so far, no one has been able to identify a single case in which a court found that it was reasonable for an attorney to fail to contact an alibi witness. On the other hand, people have found cases in which courts have rejected various rationales for failing to contact an alibi witness, such as the alibi contradicting the defendant’s version of events, the alibi witness being an alleged participant in the crime, the attorney not believing the alibi defense, etc.

So, are there any grounds for believing that the Court of Appeals will find such a rationale in Adnan’s case? I don’t think so because the State hasn’t identified any risks associated with contacting Asia; all of the risks they’ve identified relate to calling her at trial. Judge Welch found that Adnan’s private counsel had knowledge of Asia, her possible alibi, and her phone number months before trial. The only downside to someone on the defense team calling her was the brief time it took to call and talk with her. Conversely, the potential upside was a total alibi. I don’t see how the failure to contact/investigate could be reasonable given these circumstances.

Posted by: Colin Miller | Aug 30, 2018 8:53:41 AM

"So, are there any grounds for believing that the Court of Appeals will find such a rationale in Adnan’s case? I don't think so …"

Fair enough, but do you agree that the Court needs to consider the possible rationales in light of the facts of this specific case? You kind of have to agree because the Supreme Court says the court must "affirmatively entertain the range of possible reasons [defendant's] counsel may have had for proceeding as they did."

"But, so far, no one has been able to identify a single case in which a court found that it was reasonable for an attorney to fail to contact an alibi witness."

I found one, Welch's first memorandum opinion:

"Consequently, trial counsel was not deficient in failing to further pursue Ms. McClain as a potential alibi witness and trial counsel’s decision in that regard was the result of a sound and reasonable trial strategy. Therefore, Petitioner is not entitled to relief for this claim of ineffective assistance of counsel."
https://www.adnansyedwiki.com/wp-content/uploads/2018/06/20131230-Welch-Opinion-Post-Conviction-Relief-1-denied-MDG-BCCC.pdf

Furthermore, isn't Welch's second opinion in error because he explicitly declined "affirmatively entertain the range of possible reasons [defendant's] counsel may have had for proceeding as they did"?

"The State's theory would also invite the Court to entertain speculations about strategic
decisions that counsel made in determining to forgo investigating the potential alibi witness. … As adopting the State's theory would require the Court to retroactively supply key assumptions and speculations, the Court rejects the State's invitation to indulge in such hindsight sophistry, given that it is contrary to the legal framework set forth under Strickland."

Posted by: Really Collin? | Aug 30, 2018 11:02:10 AM

Really Collin: I could see the Court of Appeals going either way. There seems to be plenty of precedent out there supporting the idea that no strategic decision can be made regarding an alibi witness without first contacting that witness. I could see the Court of Appeals reaching a similar conclusion. But I could also see the court hold that there could be limited legitimate reasons for not contacting an alibi witness that don’t apply in Adnan’s case. Judge Welch’s first opinion did hold that there was no duty to contact Asia, and lower courts in some jurisdictions have reached similar results. But they have all been reversed on appeal, so there’s nothing precedential to support the State’s argument.

Posted by: Colin Miller | Aug 30, 2018 11:55:33 AM

“[S]o there’s nothing precedential to support the State’s argument.”

Assuming there is nothing precedential to support the State’s conclusion, there’s plenty to support the framework that the Court should have applied. In fact, Pinholster provides clear, Supreme Court precedential support for the framework the State says should be applied.

Posted by: Really Colin? | Sep 4, 2018 4:55:05 AM

Really Collin?: Again, we agree that Pinholster provides a framework for IAC cases. We differ over how it applies in cases in which trial counsel fails to contact an alibi witness identified by the defendant. As I've said, I've found 100+ cases applying my interpretation, and I haven't found any cases applying your interpretation.

Posted by: Colin Miller | Sep 4, 2018 8:47:29 AM

Really Collin: First thing: whoever you are, why won’t you just use a consistent handle? Is anonymity not enough, do you really need to mask your authorship more? Hmm... if I had to a venture a guess... Seamus? Duncan? David?

Second thing: You are hanging your hat on the affirmative duty to entertain possible trial counsel strategy which across the board seems to be included for cases where the factual basis is such that it would be absurd to grant relief to the defendant from a practical standpoint.

If you want to see some great examples of the rare cases this fallback protection is needed, check the Graeff dissent for some real whopper cases where “technically” defense counsel didn’t investigate an alibi witness.... but I mean really...come on.

Such extreme cases are clearly the exception to the rule. And for all the fancy tongue twisting state engages in their petition, the grounds for such exceptions’ rationale was carved out in Strickland for obvious common sense reasons. You can tell this is true by the overwhelming number of cases which conclude that plain failure to contact an alibi witness, especially when the factual framework is as favorable as it is in the Syed case, is near-universally recognized as ineffective assistance of counsel. How many do you see which conclude otherwise, using anything resembling the state’s argument?

To give an analogy, it’s like how within a terms of service agreement, businesses will include the catch-all line “We reserve final authority to refuse service to anyone.” Roughly translated into english this reads, “Even if you are technically following all our rules, if you are still being an unruly asshole trying to game the system, we reserve the right to ‘86 you anyway.”

Posted by: Paul | Sep 5, 2018 7:30:41 PM

Colin-

if Gutierrez knew what Asia would have testified to, what's the big deal of contacting or not contacting her?

Posted by: Jonathan | Sep 10, 2018 9:30:12 AM

Jonathan: Let’s assume Gutierrez knew two things before trial #2: (1) Asia would say she was with Adnan from roughly 2:20-2:40pm on 1/13/99; and (2) the State would claim that Adnan called Jay from the Best Buy pay phone at 2:36pm, after having killed Hae in the Best Buy parking lot. Under this scenario, I think the only logical conclusions are that (1) Gutierrez forgot about Asia at some point; or (2) Gutierrez determined that Asia would be a bad witness without speaking with her. I don’t see how any other conclusion makes sense given that Gutierrez presented no other evidence or testimony about Adnan’s location (in general or on 1/13/99 in particular) between the end of school and the start of track practice.

Given that Judge Welch found Asia to be a credible alibi witness and COSA found that her alibi testimony would have created the reasonable probability of a different outcome at trial…that’s the big deal. There’s a solid chance that contacting her would have led to an acquittal or at least a hung jury.

Posted by: Colin Miller | Sep 10, 2018 1:54:04 PM

Colin -
That makes sense, thank you. I think that is the correct legal conclusion. I think Judge Welch was correct factually, however. I don't see that Asia's testimony would have moved the needle at all with respect to the burial eyewitness testimony plus technical location data.

Posted by: Jonathan | Sep 11, 2018 10:21:05 AM

Furthermore (in continuation of my last comment) that is the context in which I read Welch’s original opinion in the case:

From Welch’s perspective after the original PCR hearing, he was given the (factually false as it turned out) perception that:

1: At the time of trial there was a girl being aggressively intimidated into giving false alibi testimony and subsequently signing a false affidavit for defendant:

2: Trial Counsel (Gutierrez) is now deceased, so she can’t be asked, but we know that at the time of trial, she did not present this girl as an alibi witness.

I think that from this limited information, Welch concluded that there was, in a non-specific sense, some kind of real shady business going on, and given that putting such a witness on the stand could easily constitute suborning perjury, it qualified as one of those extreme situations where presuming that there existed a sound trial strategy was fine.

Of course that entire rationale is predicated on Kevin Urick’s PCR testimony not being bald-faced perjury itself. In the reopened hearing, upon learning that the entire basis his original rationale was built on was BS, he started his analysis from scratch. This ultimately led him to conclude that there is no reason to post-hoc invent fanciful unevidenced stories to explain away what everything seems to point at being simply a gigantic Gutierrez-flavor dropped ball.

Posted by: Paul | Sep 11, 2018 4:26:02 PM

Jonathan: There are so many variables that it’s tough to say anything definitive (as is often the case with IAC). Let’s assume that Gutierrez contacts Asia and calls her as an alibi witness at trial. This means that Asia is listed on the alibi notice, and the State knows about her before trial starts. So, does the State stick with its same story (2:36 “come and get me” call) and try to attack Asia’s credibility? Or does the State now try to claim that Inez was wrong about Hae leaving Woodlawn soon after the end of school and go with the timeline of Debbie seeing Hae at 3:00, with the 3:15 call now becoming the “come and get me” call. And, if the State does this, what happens to the rest of the State’s timeline, including the Nisha Call? And does the defense track down “Takera” and get her to testify about Hae turning her down for a ride at 3:00 because she didn’t have time to give her a ride? Etc. There are so many moving parts that make it tough to even know what case the jury would have heard.

Posted by: Colin Miller | Sep 12, 2018 4:18:21 AM

First, I'm not Seamus Duncan and I don't know who James is. And I'm not really sure how "Paul" is any less anonymous than my chose handle. Last time I checked there was more than one "Paul" out there.

Second, I would suggest you go and read Pinholster and Strickland. Pinholster is clear:

"The Court of Appeals was required not simply to 'give [the] attorneys the benefit of the doubt,” 590 F. 3d, at 673, but to affirmatively entertain the range of possible “reasons Pinholster’s counsel may have had for proceeding as they did,' id., at 692 (Kozinski, C. J., dissenting). See also Richter, supra, at ___ (slip op., at 20) ('Strickland . . . calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind')."

Strickland is also clear. Each case is considered on its facts, you don't get to apply the 'but alibis are different" rule that you and Colin seem to be making up:

"Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated 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."

The Court of Appeals of Maryland may ultimately determine that Gutierrez's performance was deficient (I am actually OK with that. I think the winning argument for the State is on prejudice). But until the Supreme Court says differently, in reaching that conclusion the COA must "affirmatively entertain the range of possible reasons [Adnan]’s counsel may have had for proceeding as [she] did" without applying a mechanical rule that "alibis witnesses are different."

Posted by: Really Paul? (aka Really Colin?) | Sep 12, 2018 12:47:15 PM

Really Paul: I think this might be a matter of semantics. I believe one of two things is true: (1) courts have effectively held that Pinholster does not apply to an attorney who fails to contact an alibi witness; or (2) courts have held that Pinholster applies to an attorney who fails to contact an alibi witness, but no court (at least no court upheld on appeal) has found that the “range of possible for reasons” for failing to contact an alibi witness satisfies Strickland’s deficient performance prong. In other words, one way or another, no court has found a possible strategic reason for failing to contact an alibi witness, and the Adnan Syed case does not present a unique possible strategic reason. I know that you disagree with my (1) above, but do you disagree with my (2)? And, if not, does it really matter?

Posted by: Colin Miller | Sep 13, 2018 6:18:45 AM

First, said with all sincerity, I hope you stay safe and dry. I know some USC students (Cocks not Trojans) have been sent home. Second, I disagree with you on (2) because Strickland is clear that each case must be evaluated on its own facts. Welch suggested that under the facts of this case there were decent theories for why Gutierrez may not have contacted Asia, but explicitly declined to entertain them, contrary to the teaching of Pinholster. Graef similarly found reasons why Gutierrez may not have needed to contact Asia. I also think that the law should be correctly applied and appellate courts should correct incorrect application of the law even if the ultimate outcome remains the same. I would hope, given your work in wrongful convictions, that this is a sentiment with which you agree.

Posted by: Really Colin | Sep 13, 2018 10:30:42 AM

Really Colin: First, thanks. Second, I’m not really seeing how we disagree on (2). I agree that, under (2), there must be a case-by-case analysis. And I also agree that Judge Welch and Judge Graeff raised possible reasons for Gutierrez not contacting Asia. But my point under (2) is that no judge in any final opinion has every found a reasonable reason for an attorney not to contact an alibi witness. Obviously, the current final opinion in the Adnan Syed case is the COSA majority opinion, which found no reasonable reason for Gutierrez failing to contact Asia. And I’ve cited to any number of other cases on this blog that reach a similar conclusion.

So, my point is simply that you may be right that a court could find a reasonable reason not to contact an alibi witness, but no court has ever reached such a conclusion in a final opinion.

Posted by: Colin Miller | Sep 13, 2018 12:52:28 PM

If it is your point "that [I] may be right that a court could find a reasonable reason not to contact an alibi witness, but no court has ever reached such a conclusion in a final opinion," then it really does matter whether or not the court "affirmatively entertains the range of possible reasons [Adnan]'s counsel may have had for proceeding as [she] did." As you note, "a court could find a reasonable reason not to contact an alibi witness" under the facts of this case. This would, of course, result in COA reversing the COSA. Maybe they will, maybe they won't, but that's why the games are played.

Posted by: Really Colin | Sep 13, 2018 1:34:32 PM

Really Collin: I would say that it really does matter…but only if there’s any reason to believe that COA will find a legitimate reason for Gutierrez to fail to contact Asia. As I’ve noted, there no legal precedent to support such a conclusion (other than dissenting opinions and opinions that have been reversed on appeal). And, as far as I can tell, none of the reasons proffered by the State/Judge Graeff explain why Gutierrez would fail to contact a witness who could have covered the key period in the case. Do you see any of those reasons having any possibility of success at COA?

Posted by: Colin Miller | Sep 13, 2018 2:35:14 PM

Maybe I'll tell you what I think could work after Adnan's briefs are filed. ;) But, any suggestion that makes the decision look like a strategic one gets you halfway there, doesn't it? Once you get there, you have the presumption of reasonableness. Isn't that weakness in a lot of your caselaw -- there is a reason given by the attorneys, and those reasons do not appear strategic (time available, resources available, etc.), as opposed to "this might hurt our case"?

Posted by: Really Colin | Sep 14, 2018 7:10:38 AM

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