EvidenceProf Blog

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

Tuesday, September 29, 2015

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


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.



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If the case law establishes that not contacting an alibi witness is a per se instance of ineffective assistance of counsel, and everyone agrees that Adnan told Gutierrez about Asia, but that she was never contacted by the defense, isn't that a killshot? Why would Asia testify instead of just having a new trial be ordered?

On the other hand, there may be a law of the case/waiver issue on Adnan's side. If these cases weren't cited to the court the first time--and indeed, the judge rejected the claim by holding that Gutierrez was not deficient--then is it true that the remand could be governed by the law of the case and/or prior waiver?

Posted by: RR | Sep 29, 2015 12:03:46 PM

Colin, can you help us understand what seems to be the subpar (not to say, thoughtless) quality of the State’s Response? Is the Deputy AG just doing the best he can with what little he has? Does an attorney in his position have to generate some kind of arguments, even if they’re poor arguments and not supported by precedent? Would it be acceptable for an attorney in his position to look at the evidence and say, in the interest of justice, that the State doesn’t have a case? Even if he sees that, must he soldier on? What are the professional ethics here? Thanks for some context.

And the Subscriber Activity page 1 not submitted – very interesting. More Brady?


Posted by: Bev | Sep 29, 2015 12:41:47 PM

I am not sure that this Asia thing falls under "failure to contact." We have multiple accounts of how she has been trying to avoid contacting Adnan's attorneys even till late 2012. The "inability to contact" may easily be "unwillingness to be contacted."

Posted by: S | Sep 29, 2015 1:20:26 PM

S, yes, Asia didn't want to be contacted...AFTER Urick lied to her and made her think she'd be helping free a murderer. I'm guessing most people would avoid contact in that circumstance.

Posted by: MzOpinion8d | Sep 29, 2015 4:08:15 PM

I don't think the question is was she unwilling to respond in 2012. The question is, was she willing to respond in 1999/2000. Clearly she was because she was more than willing to tell Rabia what she knew and write an affidavit.

Posted by: Narizarielka | Sep 29, 2015 10:05:59 PM

Hi Colin,

Seems Adnan should be allowed to let Asia testify (finally). I do have a slightly off-topic question though: With jay having now publicly indicated that he lied on the witness stand in his intercept interview, what are the consequences of that legally, both for him, and for the states case? Does it make his testimony legally unreliable and therefore inadmissible?


Posted by: M | Sep 29, 2015 11:54:38 PM

MzOpinion8, if that were true I would be with you. However, the reports of her avoiding the attorneys (by their investigators) happened BEFORE she contacted Urick.

Posted by: S | Sep 30, 2015 3:11:59 AM

RR: Maryland precedent indicates that the alibi witness needs to testify for relief to be granted.

Bev: I think the State doesn’t have the precedent to support its arguments. The State could join the defense in their position, but that obviously hasn’t happened yet. As for a possible Brady claim…I’m looking into it.

S: The court treated it as a failure to contact case.

M: If there’s a retrial, the interview certainly could be used to impeach him.

Posted by: Colin | Sep 30, 2015 7:22:22 AM

Off topic, but I've been wanting to know this for a while. If everything on Undisclosed is true, why can't Jay come clean at this point and admit that he lied to save himself from being charged with the murder (which was inevitable based on what you've uncovered). Is there something the state of MD still has over him?

Posted by: Jill | Sep 30, 2015 9:47:35 AM

S (eamus) Asia didn't want to be contacted after Adnan had already been convicted. The failure to contact on alibi witness was for his trial. Then his lawyers after Gutierrez tried to contact her for his first PCR hearing, then she called Urick and then he lied to her.

Posted by: spaceboy | Oct 3, 2015 7:57:01 AM

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