EvidenceProf Blog

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

Wednesday, June 10, 2015

Did Gutierrez Give Ineffective Assistance of Counsel to Adnan on the Lividity Issue?

I just got the following question from Alison Sweeney:

Screen Shot 2015-06-10 at 12.32.32 PM

It's a very good question and one that has an answer I recently uncovered.

Just a few months ago, the United States District Court for the District of Maryland decided Nicolas v. Attorney General of Maryland, 2015 WL 1469184 (D.Md. 2015). In Nicolas, the defendant appealed his murder conviction, claiming that the state courts in Maryland erred by rejecting his argument that

his trial counsel provided ineffective assistance by failing to become sufficiently educated about lividity evidence and by failing to rebut the state's expert at trial.

Specifically, the defendant's trial was held in the same court as Adnan's trial, and the medical examiner "testified that lividity could become fixed within two hours." This was obviously wrong, but the court found that his attorney's failure to properly cross-examine the medical examiner or call/consult his own wasn't the type of error that can really support a finding of ineffective assistance. According to the court.

In [Harrington v. Richter], the Supreme Court noted: "Rare are the situations in which the wide latitude counsel must have in making tactical decisions will be limited to any one technique or approach. It can be assumed that in some cases counsel would be deemed ineffective for failing to consult or rely on experts, but even that formulation is sufficiently general that state courts would have wide latitude in applying it." Harrington, 562 U.S. at 106...; Hudson v. Lafler,...(denying ineffective assistance claim in ยง 2254 petition based upon counsel's alleged failure to adequately challenge prosecution's gunshot residue expert or to obtain an independent gunshot residue expert).

Therefore, according to the court, the State of Maryland properly exercised its discretion in denying the defendant's claim of ineffective assistance.

So, to answer Alison's question: (1) Adnan can't raise the lividity argument as part of his claim that he received the ineffective assistance of counsel because he didn't raise it before; and (2) he likely didn't raise it before because his attorney was aware that it wasn't a viable argument in Maryland. In other words, Gutierrez's failures on the lividity issue were important but, unfortunately, not significant enough to lead to a new trial.



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Is there any threshold related to a pattern of behavior when it comes to IAC? Between this, randomly trailing off during crosses, failing to contact subpoenaed witnesses, and the Asia issue it just seems like she was going off half-cocked in numerous ways. Can a court look at that all together or do they examine each issue in isolation?

Posted by: Absurdamerica | Jun 10, 2015 10:03:42 AM

Absurdamerica: A defendant can claim that he received ineffective assistance of counsel in the aggregate, but Adnan has not made that claim.

Posted by: Colin Miller | Jun 10, 2015 10:56:57 AM

If that is the law (of IAC) then the law is an ass.

Posted by: Eliot Clingman | Jun 10, 2015 11:19:37 AM

Eliot: It's very tough to prove ineffective assistance, and I understand your frustration.

Posted by: Colin Miller | Jun 10, 2015 11:23:23 AM

It took 16 years to figure out the lividity on this case. Asking Goots to figure it out is asking a bit much

Posted by: Matt | Jun 10, 2015 11:37:26 AM

Matt: Thanks for making that statement. Stay tuned...

Posted by: Colin Miller | Jun 10, 2015 11:51:01 AM

I'm confused. I thought that when the case was sent back to Superior Court a couple of weeks ago, the language used in the judgment was sufficiently board as to allow more than just Asia's testimony to be introduced. Wasn't there some phrase, I think it was 'in the interests of justice', used that really opened the doors for Adnan? At least that's what I remember reading online.

Posted by: Mariel | Jun 10, 2015 12:13:22 PM

Hi Colin - I've always been a little confused as to why most lawyers wouldn't automatically go for IAC in the aggregate - wouldn't this lead to a better chance of success (unless there really is only a single error evident)? Especially in this case, when it seems quite clear there are multiple issues/errors. Surely once there are two or more alleged errors, going for IAC in the aggregate makes most sense? It seems it would take away the gamble as to whether or not a single error would meet the Strickland deficiency threshold. And, although IAC was not found in the Nicolas case on the grounds CG didn't question the lividity evidence, was not that for single issue IAC? So could it not still be used as evidence of IAC in the aggregate? If IAC is claimed on appeal but lost, can new evidence of IAC ever be claimed again in future appeals? Thanks.

Posted by: Cupcake | Jun 10, 2015 1:40:09 PM

Mariel: More than Asia's testimony might be admissible, but the other evidence has to be related to the failure to contact Asia.

Cupcake: We'll address that in a future episode.

Posted by: Colin Miller | Jun 10, 2015 1:47:46 PM

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