EvidenceProf Blog

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

Friday, May 8, 2015

The State's Brief, Take 2: The Failure to Contact/Call an Alibi Witness Based on Conflicts with the Defendant's Own Alibi

In yesterday's post, I discussed the Brief of Appellee in Syed v. State. The most important part of that post addressed what I regard to be the key holding of the Baltimore City Circuit Court in denying Adnan's claim of ineffective assistance of counsel based upon his trial attorney's failure to contact potential alibi witness Asia McClain: that Asia's story about seeing Adnan at the library until 2:40 P.M. on January 13, 1999 contradicted Adnan's "own stated alibi that he remained on the school campus from 2:15 p.m. to 3:30 p.m." (page 11). In yesterday's post, I detailed how Adnan never claimed that he remained on the school campus from 2:15 to 3:30 P.M. on January 13th.

Let's assume for the sake of argument, however, that Adnan did claim that he remained on the school campus from 2:15 to 3:30 P.M. on January 13, 1999. Would that justify the decision of Adnan's trial attorney not to contact Asia McClain? According to a key case that has been cited by both the Court of Special Appeals of Maryland and the Fourth Circuit, the clear answer is "no."

I've cited to Grooms v. Solem a number of times on the blog. It's the source of the following legal principle that has been cited by courts across the country: "Once a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense." Both the Court of Appeals of Maryland and the Fourth Circuit have cited to Grooms in finding that defendants received the ineffective assistance of counsel based upon the failure to contact/call alibi witnesses. Grooms also seems to support the proposition that Adnan's trial attorney was per se ineffective in failing to contact Asia McClain.

That said, the Baltimore City Circuit Court gave three reasons for why Adnan's trial attorney could have reasonably decided not to contact Asia McClain. As I noted yesterday, the strongest reason given by the court was that Asia contradicted Adnan's own stated alibi. That decision, however, seems to contradict clear precedent to the contrary.

In Grooms, the court cited two cases as support for the proposition that an attorney must make some effort to contact a potential alibi witness identified by a defendant. One of these cases was Lawrence v. Armontrout, 900 F.2d 127 (8th Cir. 1990). Armontrout, however, actually wasn't a case about failing to contact an alibi witness.

In Armontrout, the defendant was charged with murder and told his attorney that his girlfriend would provide an alibi. The defendant's attorney then interviewed the girlfriend, "but decided not to use her as a witness because her version of the alibi differed somewhat from [the defendant's]" version. At trial, defense counsel raised a misidentification defense, but the defendant was ultimately convicted of murder. After he was convicted, the defendant appealed, claiming that he received the ineffective assistance of counsel based upon his attorney's failure to call his girlfriend as an alibi witness.

In finding that trial counsel acted unreasonably, the Eighth Circuit concluded that

trial counsel's assertion that she intended to defend [the defendant] on a theory of misidentification does not excuse her failure to investigate all potential alibi witnesses. Testimony from alibi witnesses would bolster rather than detract from a defense of misidentification by negating the inference raised by an eyewitness identification that the defendant had been present at the scene of the crime. A tactical decision to rely on a misidentification defense in no way forecloses the concurrent use of alibi witnesses.

Although trial counsel stated at the 27.26 hearing that [the girlfriend]'s version of what she and [the defendant] had done on the evening of the murders was "similar [to] but different" from the alibi [the defendant] gave her, she acknowledged that [the girlfriend] was a willing and supportive alibi witness. The record does not indicate what the differences between their respective versions were. Because she did not intend to have [the defendant] testify at trial, however, there was little danger of exposing the jury to conflicting alibis

As I noted above, Armontrout has been cited by the Court of Special Appeals of Maryland, the court currently handling Adnan's appeal. It has actually cited the case twice, both times to support a finding that an attorney acted unreasonably by failing to pursue/present a defense that bolstered rather than detracted from the defendant's defense: Evans v. State, 827 A.2d 157, 166 (Md.App. 2003), and State v. Johnson, 794 A.2d 654, 666 (Md.App. 2002). Perhaps more importantly, the Fourth Circuit cited Armontrout twice in support of its finding of ineffective assistance based on failure to contact alibi witnesses in the key case, Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992).

So, what does Armontrout tell us about Adnan's case? Could Asia testimony have hurt Adnan's case? No, because Adnan did not have any witnesses testify concerning his whereabouts between 2:15 and 3:30 P.M. Moreover, as in Armontrout, because Adnan's trial attorney did not intend to have Adnan testify, there was little/no danger of exposing the jury to conflicting alibis. Finally, even if we are acknowledging that Adnan ever said he remained on the school campus between the end of school and the start of track practice, that at worst makes Asia's version "similar [to] but different from the alibi [Adnan] gave to" defense counsel. The Eighth Circuit doesn't note the differences between the stories by the defendant and his girlfriend in Armontrout, but it's hard to imagine those differences being less significant than the .01 miles between Woodlawn High School and the Woodlawn Public Library.

Simply put, even if Adnan and Asia had somewhat conflicting versions of his alibi, the differences between their two versions shouldn't have justified defense counsel's failure to contact Asia.



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Thank you Colin!

Posted by: Sarah | May 8, 2015 1:41:17 PM

Except it could be that the defense did contact Asia and "it didn't check out" like Adnan says CG told him.

Posted by: Justin Case | May 8, 2015 1:44:01 PM

Justin: Yes. We do have to rely on Asia's affidavit(s) and possible future testimony to conclude that she was never contacted by defense counsel or anyone on her team.

Posted by: Colin Miller | May 8, 2015 1:45:51 PM


With all due respect, Justin Brown has access to CG's then law clerk (now a lawyer in the area.) He is the one who visited Adnan and he is the individual who wrote the notes about her information. As a lawyer on another thred points out, this clerk probably had discussions with CG about Asia's potential alibi - as well as possibly helped prepare the witness list. What does he say?

Posted by: Badger | May 8, 2015 1:59:15 PM

I'm curious about your thoughts on the prejudice issue as it would apply to Asia's testimony, especially since the State said it would have modified its 2:36 timeline. It seems to be a high standard to meet. I noticed, for example, that there was subsequent history for the Armontrout case on the issue of prejudice at 961 F.2d 113 (8th Cir. 1992) where the court explained the applicable standard in remanding the case for a 2nd time back to the District Court:
"Under the standard set forth by the Supreme Court in Strickland, it is the petitioner's burden to affirmatively prove prejudice, which requires proof “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Thus, it is Lawrence's burden to affirmatively prove that there is a reasonable probability that, had his trial counsel interviewed and called the alibi witnesses, he would have been acquitted. Id. at 694, 104 S.Ct. at 2068. In the case at bar, the district court erred by improperly shifting the burden of proof from Lawrence to the State."

Lawrence's petition was ultimately denied because he could not meet the prejudice standard and the denial was affirmed at 31 F.3d 662 (8th Cir. 1994).

Posted by: Nine9fifty50 | May 8, 2015 2:37:30 PM

Badger: My understanding is that the clerk recalled visiting Adnan in prison, authenticated the notes as notes that he wrote, and said that he would have given the notes to defense counsel. But my understanding is that he had no specific recollection of his conversation with Adnan, his conversation with defense counsel, or any follow-up on Asia. Don’t quote me on that, however.

Nine9fifty50: I discussed this in yesterday’s post. I think Adnan’s case compares favorably to Griffin and In re Parris W., which also had a nebulous timeline.

Posted by: Colin Miller | May 8, 2015 4:33:07 PM

Professor, I thought Asia's affadavit said that Adnan's legal team never contacted her. Is there evidence that his team's PI also didn't contact her?

Posted by: KennyG | May 8, 2015 7:37:05 PM

Thanks. I did notice one aspect that was common to both Griffin and Parris, however, that I don't think has been commented on yet. In both cases, the State's only evidence against the defendant was an identification by the victim, unsupported by other corroborating evidence.

In Griffin, the evidence consisted of defendant being identified in a photo array by the 2 security guards who were shot during the robbery. The Court found prejudice when the defense attorney failed to prepare any defense prior to trial; including failing to present 5 alibi witnesses.

In Parris, the evidence consisted solely of the assault victim's identification of the juvenile from the side and back as he was running away. The court found prejudice when the juvenile's father's alibi testimony would have been corroborated by 5 other witnesses.

The Court in Griffin makes this point: "Eyewitness identification evidence, uncorroborated by a fingerprint, gun, confession, or coconspirator testimony, is a thin thread to shackle a man for forty years. Moreover, it is precisely the sort of evidence that an alibi defense refutes best. Lawrence, 900 F.2d at 130; cf. Montgomery v. Petersen, 846 F.2d 407, 415-416 (7th Cir. 1988)."

By contrast, in Armontrout, the court did not find prejudice for failing to call Def's alibi witnesses in light of the evidence evidence against the defendant (3 eyewitnesses saw def. at the scene of the crime; 1 memorized the license plate and identified the color and make of the vehicle fleeing the scene which was registered to Def's mother) and the potential alibi witnesses were very weak (Def's girlfriend said she was playing cards with Def that night but could not remember any other details).

Since the Court's analysis is very fact-sensitive and seems to be particularly concerned with cases relying solely on witness identification, it might be worth looking at the other cases cited by Brown to compare to Griffin and Parris.

Posted by: Nine9fifty50 | May 8, 2015 8:33:05 PM

Hi Colin,
If the trip to Cathy's never happened (which I agree with your position and the evidence you have put forward) then Jay lied, but if Jay lied then Adnan also lied and has gone along with what Jay has said. Isn't it a little odd Colin that Adnan has also lied about this trip to Cathy's. I'm wondering if your Undisclosed 'non-biased' podcast will find out from Adnan why he lied and where he and Jay were. If you go by the cell phone records, they were in an area quite a distance from anywhere else (near cathy's). Where were they EP and why did Adnan lie about his whereabouts? Wondering if you might examine this.

Posted by: Ben | May 8, 2015 11:21:48 PM

KennyG: Look at paragraph 17 of Asia’s second team. She say that no one from the legal team representing Adnan contacted her:


That would include the PI.

Nine9fifty50: I would argue that eyewitness identification, and especially eyewitness identification, is stronger evidence than testimony by an alleged accomplice who has changed his story many times, admitted to lying, and accepted a favorable plea deal.

Ben: The notes from Adnan’s attorney show he told he that he remembered receiving Officer Adcock’s call when he was in his car. He has said that he remembers a visit to Cathy’s place, but he doesn’t know the day of the visit.

Posted by: Colin Miller | May 9, 2015 3:40:52 AM

Thanks. I would argue victim IDs during the commission of the crime are notoriously unreliable, so Griffin and Parris are distinguishable in terms of finding prejudice. The Court is saying in these cases, out of the unique concern for mistaken IDs, it would be more willing to find prejudice if there was no other evidence of guilt and there happened to be credible evidence of a potential alibi for the Def which was not presented to the court. In Armontrout there was additional evidence of Def's guilt (license plate; color and make of fleeing vehicle) and the Def's alibi evidence was weaker so the Court did not find prejudice in failing to present the alibi testimony. But I'll check the other cases to see if this argument holds up.

In Adnan's case, there was other evidence at the trial pointing to Adnan's guilt in addition to the coconspirator testimony; also it is difficult to evaluate the significance & credibility of Asia's evidence for the reasons discussed elsewhere.

Posted by: Nine9fifty50 | May 9, 2015 9:03:23 AM

Nine9fifty50: I think that eyewitness testimony, especially eyewitness testimony by two witnesses, is preferable to testimony by an alleged accomplice who had a favorable plea deal and admitted to lying/changing his story. The next case I will post about is this one:


which was also cited by the courts in In re Parris W. and Griffin. It involved testimony by an accomplice, and the court very easily found prejudice based on an alibi witness who wasn't contacted.

Posted by: Colin Miller | May 9, 2015 9:27:46 AM

Montgomery is yet another case where the attorney testified that he screwed up. Not only does Adnan not have that, his team failed to even try to show evidence that CG screwed up.

Posted by: Monstimal | May 9, 2015 9:51:29 AM

I took a look at additional cases and some have found the failure to produce available alibi testimony prejudicial and others have not. There is not a per se rule.

See e.g., Foster v. Ward, 182 F.3d 1177 (10th Cir. 1999) (court found no prejudice from failure to present testimony of two witnesses supporting Def's alibi defense even though the State's only eyewitness was an accomplice to the murder (his wife) in light of additional circumstantial evidence of Def's guilt). Foster is particularly interesting in that the defendant and his wife were both originally charged with the robbery and murder of a grocey store owner making a delivery of groceries to their home. However, prosecutors later reduced the charge against the wife to “accessory after the fact” and the wife became the State's key witness.

See also Lawrence v. Armontrout, discussed above, 31 F.3d 662, 666–68 (8th Cir.1994) (court found no prejudice from failure to present alibi testimony of three witnesses); Kubat v. Thieret, 867 F.2d 351, 362–63 (7th Cir.1989) (court found no prejudice from failure to present multiple alibi witnesses where prosecution presented significant evidence to corroborate the testimony of its chief witness, an accomplice to the murder.); United States ex rel. Kleba v. McGinnis, 796 F.2d 947, 957 (7th Cir.1986) (court found no prejudice under circumstances where if defendant left alibi witnesses' apartment ten minutes earlier than she alleged in her affidavit, he would have had ample time to commit the crimes).

In Kubat v. Thieret, 867 F.2d 351, 363 fn.8, I noticed the Court specifically distinguished Montgomery when it found lack of prejudice under the facts of the case: "Moreover, Montgomery presented the rare case in which the prejudice component of Strickland was easily proven. The defendant had been separately tried in two counties for two burglaries that occurred on the same day. In one trial, defense counsel called an alibi witness, and the defendant was acquitted. In the second trial, the only difference was that defense counsel failed to call the very same alibi witness, and the defendant was convicted."

Posted by: Nine9fifty50 | May 9, 2015 11:35:30 AM

Monstimal: In Montgomery, the attorney said that part of the reason why he failed to contact the alibi witness was that he disbelieved the defendant, and the court addressed that possible justification.

Nine9fifty50: There's definitely no per se rule on prejudice. I'll have to look at the other cases, but I just glanced at Foster, and it was a case of failure to contact a cumulative alibi witness who merely would have corroborated an alibi witness presented at trial.

Posted by: Colin Miller | May 9, 2015 5:40:56 PM

Re: trip to Cathy's that didn't happen.
Adnan took a call from the police officer in his car, somewhere within the vicinity of Cathy's apartment. How could Adnan not remember exactly where he was when he took this call from the police officer. Adnan would have seen the cellphone evidence at trial and surely it would have clicked for him about why he was within the vicinity of Cathy's apartment. When he heard the evidence at trial about being at Cathy's, why didn't Adnan mention this to his defense team. Surely this would have been in his favour for CG to correct Cathy and Jay as witnesses. The only reason I can see is that Jay and Adnan were somewhere they shouldn't have been and couldn't mention this as it may possibly have implicated someone else. So Jay came up with the Cathy apartment story when he saw the cell phone tower data and Adnan couldn't correct him on it as he was actually somewhere he shouldn't have been.
BTW, I believe that Adnan shouldn't have been convicted based on the evidence, but only due to extremely poor policing and a prosecution who didn't put in the effort to convict both Jay and Adnan (and possibly other/s) for hae's murder.

Posted by: Ben | May 11, 2015 2:53:45 AM

Ben: Again, Adnan says he was in his car when he got the call from Adcock. He might very well have told his attorney that he was in his car when he was in his call, but to what end? It's not as if there was anything independently verifiable that could have been used to impeach Jay and/or Cathy.

Posted by: Colin Miller | May 11, 2015 3:44:36 AM

I like the state's argument that if Asia had testified and seemed credible, that the state could simply have chosen the 3:15 call as the Best Buy call and still convicted Adnan. I think they should be given the chance to try.

Posted by: Dan | May 11, 2015 5:57:13 AM

"In Adnan's case, there was other evidence at the trial pointing to Adnan's guilt in addition to the coconspirator testimony" - Nine9Fifty50

What evidence are you referring to? You mean the cell phone records that the prosecutor himself (Urick) admitted rely on Jay's testimony to be relevant? Any other evidence only shows (at best) that it was possible he could have committed the crime.

Posted by: Dan | May 11, 2015 6:07:50 AM

I notice my question was not posted so I will ask again. According to you, "Adnan never claimed that he remained on the school campus from 2:15 to 3:30 P.M. on January 13th." Can you please produce the remaining pages of these documents so we can verify what Adnan's stated alibi was?



Posted by: Seamus Duncan | May 11, 2015 7:15:17 AM

Seamus: As far as I know, that is the only page of notes the clerk took. In addition to listing Adnan's class schedule up until the end of school at 2:15, you can see the mention of Asia and her boyfriend seeing Adnan at the library "@ 3:00" followed by track practice at 3:30. As we've noted on Undisclosed, the defense wasn't led to believe that the period after track practice was important until trial or at least the eve of trial.

Posted by: Colin Miller | May 11, 2015 7:39:31 AM

What about this page where Adnan wrote out his schedule? Surely he didn't stop at 2:15, a time when everyone acknowledges Hae was still alive:


Posted by: Seamus Duncan | May 11, 2015 8:07:54 AM

Seamus: That document pretty clearly only documents Adnan's school day. As you can see from the document, the entire thing is single spaced, and then there are two blank lines at the end of the document. I'm not aware of there being a page 2.

Posted by: Colin Miller | May 11, 2015 8:32:04 AM

So are you saying there is no documentation in the file in which Adnan described his day after 2:15 or 3:30?

Posted by: Seamus Duncan | May 11, 2015 8:49:01 AM

Seamus: The notes taken by both defense counsel and her clerk show that Adnan said he went to the library between the end of school and the start of track practice ay 3:30.

Posted by: Colin Miller | May 11, 2015 8:57:28 AM

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