Another Thought on the State's Response to Adnan's Motion to Reopen: Affidavit vs. Testimony

In its CONSOLIDATED RESPONSE IN OPPOSITION TO PETITIONER’S MOTION AND SUPPLEMENT TO REOPEN POST-CONVICTION PROCEEDINGS in the Adnan Syed case, the State argued that

Strickland’s first prong is not concerned with what a witness claims she would have said with the benefit of hindsight, but rather with what the attorney knew at the time of the contested decision....Thus, the flaw in Syed’s motion to reopen is not just that the information supplied by McClain’s 2015 affidavit is materially identical to what was already before this Court based on her earlier affidavit, but also that because McClain cannot offer any new information about what Gutierrez knew before trial, Syed is unable to present a reason to change this Court’s decision on deficient performance. Under these circumstances, it would be a futile exercise to reopen these proceedings in order to receive testimony from McClain only to render the same result on the basis of the same evidence, never reaching the new evidence, which at best would only bear on the prejudice prong of Strickland and not on deficient performance. 

As with other arguments made in the State's RESPONSE, this argument is not supported by any on point precedent. That's probably because on point precedent directly contradicts this argument.

Let's take a look, for instance, at State v. Porter, 80 A.3d 732 (N.J. 2013). In Porter, Oscar Porter brought a post-conviction relief (PCR) petition in which he claimed that his trial counsel was ineffective based upon failing to investigate two alibi witnesses: Katrina Adams (his girlfriend) and Rashana Lundy. In support of his claim, Porter submitted affidavits by both Adams and Lundy; Porter also asked for an evidentiary hearing so that Adams and Lundy could testify.

At the PCR hearing, "[t]he assistant prosecutor suggested the decision not to call Adams as an alibi witness, or to present an alibi defense at all, was a strategic decision by trial counsel." In response, the court refused to hold an evidentiary hearing because it

agreed with the assistant prosecutor that "trial counsel made a strategic determination to omit the testimony of the biased girlfriend and the inclement [sic] 'alibi' at trial." The court also concluded that defense counsel had made a strategic decision not to call defendant or Lundy as trial witnesses.

In other words, the PCR judge denied relief under Strickland's first prong: the deficient performance prong.

The Supreme Court of New Jersey later reversed, concluding that

it is abundantly clear that an evidentiary hearing was warranted. The court's findings regarding defendant's and his girlfriend's credibility, based only on their affidavits, was an improper approach to deciding this PCR claim and effectively denied defendant an opportunity to establish ineffective assistance of trial counsel. An opportunity to test the veracity of an affidavit has been properly permitted based on weaker circumstances than these. For example, in Allen,...the defendant offered the affidavit of a fellow inmate in support of his motion for a new trial based upon newly discovered evidence. Clearly, an affidavit presented by a person under such circumstances would  make a reasonable person question its veracity. Yet, the Appellate Division reversed the denial of the motion for failing to conduct an evidentiary hearing....

Here, the court made credibility findings without hearing Adams testify on the asserted alibi defense. The proper way to determine Adams' veracity was to assess her testimony on direct and cross-examination. Instead, the court simply speculated that she would be "biased." There is no substitute for placing a witness on the stand and having the testimony scrutinized by an impartial factfinder. That did not happen here....

In sum, with respect to the claim of ineffective assistance of trial counsel based on failure to investigate an alibi defense, we conclude that defendant made out a prima facie showing and raised material facts in dispute. Therefore, defendant was entitled to an evidentiary hearing to fully present this ineffective assistance of counsel claim. We hold that defendant is entitled to a new hearing on that issue.

The holding in Porter is neither surprising nor anonymous: If a court is trying to figure out whether trial counsel was deficient in failing to contact/investigate an alibi witness, it is essential to have that witness testify to judge the merits of that claim. Such testimony is fundamentally different from an affidavit and could result in a different outcome.

-CM