EvidenceProf Blog

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

Monday, May 18, 2015

Ineffective Assistance & The Deceased Attorney: A Major Case for Adnan's Appeal

A defendant is charged with murder. He is questioned about the crime weeks after the murder and says that he has no specific recollection of the day in question and that he was likely at a certain location based on his normal routine. A female acquaintance later reminds the defendant that she saw him on the day of the murder, jogging the defendant's memory of their interaction on that day. The defendant, however, doesn't testify at trial and is ultimately convicted of murder.

After the defendant is convicted, a key witness writes an affidavit that (1) tends to exonerate the defendant; and (2) indicates that the witness was never contacted by the defendant's attorney. When the defendant appeals, claiming that he received the ineffective assistance of counsel, the key witness refuses to testify. There are claims that this refusal to testify was based upon prosecutorial misconduct. This misconduct is proven in part through additional statements made by the witness. The defendant testifies at the hearing on his ineffective assistance claim, but the hearing is more than a decade after his conviction, and his trial counsel has passed away. 

The State argues that the court should not find that the defendant received the ineffective assistance of counsel because there could have been strategic reasons for trial counsel failing to contact the key witness. The court...sides with the defendant. The case granting relief was Towns v. Smith, 2003 WL 21488333 (E.D.Mich. 2003). This decision was later affirmed in Towns v. Smith, 395 F.3d 251 (6th Cir. 2005).

I've written before about how Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), should be the case that is used to grant Adnan Syed a new trial based upon his attorney's failure to contact Asia McClain. As long as I have made this claim, I have received the question about whether I could find an analogous case in which trial counsel had passed away. As far as I know, there is no such case in Maryland or the Fourth Circuit, making this an issue of first impression in Maryland. As such, if the court believes that the death of Adnan's trial counsel is factually important, the Towns cases are the ones it should cite because they are, as far as I can tell, the only cases that deals with similar facts. As I will explain below, the courts reached the same conclusion as the Fourth Circuit in Griffin for the same reasons*

In Towns, Wilma Steward was killed during a robbery/murder. Michael Richard eventually confessed that he had driven the getaway car used in the crime(s) and said that "Willie and his brother" were the ones who robbed and shot Steward. The police later determined that "Willie" was Willie Towns. Richard thereafter ostensibly told officers that the "brother" who committed the murder with Willie Towns was Kevin Towns. Despite this information, the police ended up arresting Willie's other brother, Parrish Towns.

This arrest occurred two weeks after the murder, and Parrish told police that he was at an arcade on the day of the murder "because that was his normal routine and he had no specific recollection of his activities on the day of the murder...." Later, however, Yolanda Wimberly reminded Parrish that he had helped her sister and her move on the day of the murder. When Parrish was tried, this moving story became part of Parrish's alibi.

On the other hand, the jury did not hear from Parrish or Richard at trial. Prior to trial, the prosecution noted that it did not plan to call Richard as a witness. In response, defense counsel asked for the opportunity to speak to Richard to see whether he should be called as a defense witness. The prosecution countered by noting that it had police writeups indicating that Richard had pled guilty to four or five other robberies. According to the prosecution, if the defense called Richard, it would seek to impeach him based upon these other crimes; the prosecution also implied that Richard might implicate Parrish in these other crimes.

The next day, the following exchange took place:

Towns's counsel: Your Honor, I did not speak with Mr. Michael Richard. I did speak with my client, Parrish Towns. We discussed the calling of Michael Richard as a witness. I can see no reasons to call Michael Richard as a witness as such and my client, Parrish Towns, agrees with me.

The Court: Is that correct, Mr. Towns?

Towns: Yes.

At the end of trial, Parrish was convicted of robbery and murder. 

After unsuccessfully appealing in the Michigan state court system, Parrish filed a habeas petition with the United States District Court for the Eastern District of Michigan in 2002, 19 years after he was initially convicted. At this point, Parrish's attorney from his original trial had passed away. Richard did not testify at the hearing on Parrish's habeas petition, but Parrish did testify and explained his mistake in initially stating that he was at an arcade on the day of the robbery/murder. Testimony was also given by Darwin Fair, Parrish's attorney for some of his state court appeals. According to Fair, Richard told him that Parrish's

trial counsel did not contact him prior to [Parrish's] trial, and if he had, he (Richard) would have testified that [Parrish] was not involved. Fair prepared an affidavit for Richard based on this conversation; Richard did not sign the affidavit.

Another witness was investigator Michael Martin. According to Martin, he later met with Richard, who indicated that he would have testified at Parrish's original trial because he had a deal in place but also

indicated his fear of incriminating himself because the people involved in his purported deal were no longer "in place" and would not back him up. Richard then stated he refused to sign the affidavit absent a grant of immunity.

At the end of the evidentiary hearing, the judge asked about arranging an immunity deal so that Richard could testify, but the prosecution refused to grant Richard immunity, a refusal that the court found inexplicable given that the State hadn't prosecuted Richard in 19 years.

This took the court to the heart of Parrish's ineffective assistance claim. According to the Eastern District of Michigan,

after having apparently review[ed] some writeups on Richard, [Parrish's] counsel simply says that he sees no reason to call him. Counsel's failure to at least interview Richard amounts to deficient performance. Counsel had a duty to investigate all potential relevant witnesses; a duty he recognized but then refused to follow. Although the [State] characterizes the issue as only trial counsel's failure to call Richard, the issue is really trial counsel's failure to speak to Richard despite indicating an intention to do so and recognizing the importance of talking to Richard prior to being able to decide whether to call Richard as a witness. Only after [Parrish's] counsel talked to Richard could he have made an informed decision about whether to call him. Counsel's failure to talk to Richard deprived Petitioner of an opportunity to present a critical component of his defense.

Additionally, the court rejected the State's claim that Richard was a "wild card" who could have implicated Parrish in other robberies, concluding that

Because [Parrish's] counsel never talked to Richard, it cannot be said he made an assessment that he was a wild card....Having failed to even speak with Richard, it cannot be said that Towns's counsel's decision not to call him was reasonable. Although [Parrish's] trial counsel is now deceased and therefore unable to offer an explanation for his actions, the record simply fails to reveal any legitimate reason for why [Parrish's] counsel made the decision not speak to Richard.

Finally, the court

noted that [Parrish] stated in court that he agreed not to call Richard as a witness. However, at the evidentiary hearing before the magistrate judge, and in an affidavit attached to the response to the Warden's motion for summary judgment, [Parrish] says that he was illiterate at the time of the trial, that he was a high school student in special education, that he wanted Richard to testify and for his trial counsel to interview him, and that his trial counsel did not inform him of a reason for not calling Richard but rather just said he intended not to call him. Thus, there is a real question as to the weight of [Parrish's] statement. 

The Sixth Circuit later agreed with the district court, concluding that,

With regard to the deficiency prong, the facts as recited above demonstrate that counsel made absolutely no attempt to communicate with Richard, despite requesting that Richard be kept in the county jail so that he could interview him prior to the commencement of the trial. Without even attempting to interview Richard, counsel simply decided not to call him as a witness. That decision was objectively unreasonable because it "was a decision made without undertaking a full investigation" into whether Richard could assist in Parrish's defense....By failing even to contact Richard-despite explicitly acknowledging the need to do so-counsel "abandoned his investigation at an unreasonable juncture, making a fully informed decision with respect to [whether to call Richard as a witness] impossible."

In reaching this conclusion, the court turned aside the State's argument that "Parrish must have told counsel that Richard could reveal damaging information about him, a danger that outweighed any potential benefit of Richard's testimony." According to the court, "there is absolutely no support for the [State's] speculation that Richard's testimony would have been damaging to Parrish's defense." 

Finally, the court found that,

even assuming, as the [State] speculates,...Parrish did tell his counsel that Richard had some damaging information about him, counsel could not have evaluated or weighed the risks and benefits of calling Richard as a defense witness without so much as asking Richard what he would say if called. Without having any contact with Richard, counsel "was ill equipped to assess [his] credibility or persuasiveness as a witness," or to evaluate and weigh the risks and benefits of putting him on the stand....We do not mean to suggest that under no circumstances could counsel's failure to call Richard as a defense witness be deemed an objectively reasonable decision. We, like the district court, hold only that it was objectively unreasonable for counsel to make that decision without first investigating Richard, or at least making a reasoned professional judgment that such investigation was unnecessary.

And there you have it. The conclusion in the Towns case is the same as the conclusion in the Griffin case: a strategic decision not to call a prospective witness cannot be made until defense counsel contacts/interviews that prospective witness. Moreover, the hypothesized strategic reasons given by the State in Towns are the same as the reasons given by the Circuit Court (and the State) for denying Adnan's PCR petition: (1) the defendant could have told defense counsel not to contact the witness; (2) the defendant changed his story; (3) the witness was not trustworthy and could have been impeached; (4) the witness was not "concrete" and could have hurt the defense theory of the case.

I really only see one thing that was more favorable in Towns:** defense counsel admitted that he didn't contact the witness despite recognizing his possible importance. On the other hand, there are many things that are more favorable in Adnan's case, including the following: (1) Asia signed two separate affidavits while Richard signed none; (2) Asia was an honors student while Richard was a repeat offender; (3) As far as I can tell, Adnan never actually said that he remained on the school campus until track practice started*** while Parrish admitted to changing his story; (4) There's no record of Adnan ever saying that his attorney should refrain from contacting Asia while Parrish said on the record that he agreed with the decision not to contact Richard; (5) the prosecutorial misconduct alleged by Adnan is much more serious than the prosecutorial "misconduct" claimed by Parrish; and (6) Adnan's attorney agreed to be disbarred in the face of a record number of client complaints while there was no evidence of other misconduct by Parrish's attorney.

Given Towns, I feel more strongly now than ever that Adnan will be given relief. It's also interesting that the court in Towns gave Parrish relief based on Richard's affidavit, even in the absence of Richard's testimony. The Court of Appeals of Maryland did the same in In re Parris W., 770 A.2d 202 (Md. 2001), although that was a direct as opposed to a collateral appeal. I still think the Court of Special Appeals of Maryland can and should remand so that Asia can testify. Towns makes it plausible, if unlikely, that Adnan could be given a new trial on the strength of Asia's affidavits alone.


*I'm going to cite to both opinions throughout this post.

**I cite Towns only for its bearing on the unreasonableness prong of an ineffective assistance claim. It is not really a comparable case on the prejudice prong.

***He also told his attorney that going to the library was part of his regular routine.



| Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference Ineffective Assistance & The Deceased Attorney: A Major Case for Adnan's Appeal:


"As far as I can tell, Adnan never actually said that he remained on the school campus until track practice started***"

Professor, you keep repeating this claim. The only timelines we've seen from Adnan cut off at 2:15. How can we verify what Adnan told his lawyers if you only let us see part of his day?

Posted by: Seamus Duncan | May 18, 2015 6:58:56 AM

Very insightful post here. I think you really hit the nail on the head here - and here's hoping they use your same logic when deciding with Adnan. Thanks for sharing!

Posted by: Jordan | May 18, 2015 7:04:41 AM

Seamus: The notes by both the lawyer and her clerk include Asia seeing Adnan at the library and Adnan going to track practice. The other document only lays out Adnan's school day; there are no notes about what he did after 2:15.

In any event, what's relevant, from a legal perspective at least, is what the State can prove. If the State had any evidence that Adnan said he remained on the school campus until track, they would have cited to it in their brief.

Posted by: Colin Miller | May 18, 2015 7:20:21 AM

I thought the burden of proof was on Adnan here.

Posted by: Seamus Duncan | May 18, 2015 8:34:31 AM

The burden of proof is on Adnan, just as it was on Parrish in the Towns case. But Adnan doesn't have to prove a negative. In other words, if there is no evidence that Adnan ever said he remained on the school campus until track practice, the State can't claim that Adnan made such a statement. What Adnan has done is introduce evidence that, on two separate occasions, he told the defense team that Asia saw him at the library before track practice.

Posted by: Colin Miller | May 18, 2015 8:47:35 AM

Why didn't Adnan push his attorney harder? If I was charged with murder, and a big problem was witnesses of where I was at a certain time point, aka when the victim was killed, I'd make sure that that person be contacted. Who wouldn't?

Posted by: Curious | May 18, 2015 10:03:42 AM

As I recall, Asia says it was snowing the day she saw Adnan at the library afterschool. The first snow of the year - that's how it stuck out for her. The Serial producers looked up the weather for that date - no snow. The first snow was later that month. Ie: her testimony is not reliable.

Posted by: Serial Listener | May 18, 2015 11:22:44 AM

Why the need to find an appeal in which the attorney is deceased? Would the cases have to match to that degree for a precedence to be set? If CG were still alive, wouldn't the argument be the same?

Posted by: Anon II | May 18, 2015 1:31:25 PM

Thank you Colin. Now THAT's what I call being a terrier on the leg of justice. Bravo

Posted by: Pictonstreetbabber | May 18, 2015 4:41:03 PM

Curious: According to Adnan, he told his attorney about Asia and was later told by her that she didn't check out. Imagine being a high school student and being told by your experienced attorney that your alibi witness didn't check out. You'd probably take her at her word, right?

Serial Listener: Over a decade later, Asia remembered the next two days being snow days and it being the first snow of the year. There was snow/ice the next two days, but it wasn't the first snow of the year.

Anon II: If the attorney is alive, she can explain her actions. The tough part of Adnan's case is trying to figure out what his attorney was or wasn't thinking.

Posted by: Colin Miller | May 18, 2015 5:29:08 PM

So, as you had said all along, the case has been remanded so that Ms. McClain could testify.

So, now the question is what is standard that Mr. Syed would have to meet? I mean would Mr. Syed have to show that Ms. McClain's memory of the day and time is correct? Or just that there was a probability that it was correct and it is for a jury to decide?

Also, as I understand Ms. McClain was with a friend at the time she saw Adnan. Could he also testify as to the truth of her claim.

Posted by: RC | May 18, 2015 5:56:39 PM

RC: Adnan first has to establish that it is in the interests of justice for the PCR hearing to be reopened. Then, Asia would need to give testimony consistent with seeing Adnan on 1/13/99, such that the court thinks there's a reasonable probability that her testimony at Adnan's original trial would have led to an acquittal.

Posted by: Colin Miller | May 18, 2015 6:10:16 PM

Professor Miller: Pursuant to the Court's order on Monday, do you have any idea when a hearing will be held? Also, in reading the language in the Order, does it mean that Adnan can introduce evidence regarding all the issues including prosecutorial misconduct, that you, Susan and Rabia have brought to light or will the hearing be limited to Asia's testimony only? Congrats to everyone on Adnan's team! Without the Serial podcast, your blog, Susan's blog, Rabia's blog and Jay's stupid interview with the Intercept, I don't believe this could have been possible. I know it's still a long road but the end is in sight. 

Posted by: Desire Dunn | May 19, 2015 8:01:03 AM

Acacie: It’s an interesting theory, but why would Jay lie (or be mistaken) about having the cell phone? I don’t see how that helps the State’s case, Jay, or Jenn. It’s also a lie/misstatement that pretty easily could have been proven wrong if a witness (Asia, Becky, Aisha, etc.) remembered seeing Adnan with his cell phone at or after the end of school.

Desire Dunn: It’s a limited remand, meaning that the court can only hear evidence related to the failure to contact Asia.

Posted by: Colin Miller | May 19, 2015 8:13:47 AM

Under 6.500 motion, evidence of new testimony or witness, would this case support evidence against Cass testing. The defendant asked numorous times for the person he spent three hours with to be contacted and interviewed. The key witness tried to contact the defense attorney and his calls were not returned. The defendant is convicted of First Degree Murder. He had told this witness no one would believe he tried to stop the attack on the victim. He mentioned the real attacker to the police and was told it was a smoke screen. The defendant wanted this witness called or interviewed to support his story but the witness was never contacted. Cass test seems to make it not newly discovered since the defendant knew about the witness and told his attorney. The witness even though he spent three hours with the defendant name does not appear on any reports, interviews, statements anywhere in the case.

Posted by: Michelle Blankenship | Aug 11, 2015 11:12:00 AM

Post a comment