EvidenceProf Blog

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

Wednesday, February 10, 2016

Wrap-Up of Adnan's Reopened PCR Proceedings: It's All About the Case(law)

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After five days of evidence and testimony at the reopened PCR proceedings for Adnan Syed, the case now shifts from facts to law on the issue of whether Cristina Gutierrez rendered ineffective assistance of counsel by failing to contact prospective alibi witness Asia McClain. In reaching that legal conclusion, Judge Welch will be able to rely on the testimony of (1) William Kanwisher; and (2) David Irwin, with both claiming that Gutierrez was ineffective and could not have been effective without contacting Asia McClain. 

Judge Welch will not have any countervailing testimony from a State's witness. The State listed renowned attorney Billy Martin on its Notice of Potential Witnesses, indicating that he might be called as an expert witness to testify "that the performance and tactical decisions of trial counsel for [Adnan] were objectively unreasonable and not constitutionally deficient." In my Day 1 preview, I predicted that there would be no way that Martin would render such testimony given the applicable case law, and he didn't. The State decided against calling him for obvious reasons.

The most obvious reason is precedent.

According to the Jessie DaSilva tweet that led this post, Adnan's attorney, Justin Brown, cited nine cases. I have a pretty good guess on which cases he cited. The first six would be the opinion of the Court of Appeals of Maryland in In re Parris W., 770 A.2d 202 (Md. 2001) and the five opinions cited therein. Let's do a quick rundown:

1. In re Parris W., 770 A.2d 202 (Md. 2001): defendant charged with assault, time of assault was uncertain, victim identified defendant, father testified as alibi witness, key alibi witness who was not called would have merely corroborated father's alibi.

2.  Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992): Rite-Aid robbery/shooting, two security guards identified defendant, one of security guards identified uncontacted alibi witness, court rejected argument that security guard's identification of alibi witness as robber could relieve defense counsel of obligation to contact him.

3. Grooms v. Solem, 923 F.2d 88 (8th Cir. 1991): defendant charged with selling stolen Native American artifacts, informant testified against him at trial, district court found that defendant didn't tell his attorney about alibi defense until first day of trial, court found defense counsel per se has obligation to contact alibi witnesses brought to him by defendant.

4. Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988): residential burglary case, several witnesses testified for the State, defense counsel not only contacted but called 12 alibi witnesses, defense counsel failsedto contact a Sears clerk based upon not believing this alibi, court finds failure to contact this 13th alibi witness was ineffective assistance because the attorney's reliability assumption could have changed after talking to the witness

5. Tosh v. Lockhart, 879 F.2d 412 (8th Cir. 1989): aggravated robbery and theft of property case, two victims identified defendants as one of the robbers, defendant's girlfriend was contacted and called as an alibi witness, court found trial counsel ineffective based on failure to call a second alibi witness to corroborate the girlfriend's testimony.

6. Johns v. Perini, 462 F.2d 1308 (6th Cir. 1972): possession and distribution of marijuana case, two witnesses identified defendant as seller of the marijuana, defendant testified that he was at work at the time of the marijuana sale, court found failure to present evidence to corroborate work alibi was ineffective assistance.

The final three cases would be the ones that Justin cited in his appellate brief. Again, here's a brief rundown:

7. Code v. Montgomery, 799 F.2d 1481 (11th Cir. 1986): armed robbery case, two victims and an accomplice testified against the defendant, defendant told his attorney to contact his mother and girlfriend, attorney contacted mother but didn't ask about defendant's whereabouts at time of robbery, mother didn't know of defendant's whereabouts but could have pointed attorney to alibi witnesses, court found ineffective assistance and prejudice, despite testimony by victims and accomplice, concluding that question is whether alibi testimony could have made a difference, not whether it would have made a difference.

8. Caldwell v. Lewis, 414 Fed.Appx. 809 (6th Cir. 2011): arson/felony murder case, testimony against the defendant by an accomplice corroborated by an elderly woman and three pieces of evidence, defense counsel failed to call an alibi witness because he couldn't confirm that his story was true, court found ineffective assistance.

9. Workman v. Tate, 957 F.2d 1339 (6th Cir. 1992): felonious assault/weapons case, three detectives, the defendant's step-brother, a bar owner, and two patrons testified against the defendant, court found ineffective assistance based on failure to contact two witnesses.*

Looking at these cases, the defense seems to have all of its bases covered. There are cases were courts found unreasonable performance despite contacting multiple alibi witnesses and having seemingly good reasons for not contacting others, such as claims that those witnesses were involved in the crime. And there are cases where courts found prejudice despite (or perhaps because of) uncertain crime timelines and multiple eyewitnesses and accomplices testifying.

On the other hand, the State has cited no cases that support its claim that Cristina Gutierrez rendered effective assistance. Presumably this is because, like hypothetical attorneys who would claim that Gutierrez acted reasonably, they don't exist. 

Judges rule on precedent. There is ample precedent to support Adnan's claim; there is no precedent to support the State's response.


*This wasn't really an alibi case, so I'm not sure whether it was one of the nine cases cited by Justin.



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"... that the performance and tactical decisions of trial counsel for [Adnan] were objectively unreasonable and not constitutionally deficient." Should that be 'objectively reasonable' or was 'unreasonable' in original? Also thank you - I have learned so much about so many things from you and the way you handle things.

Posted by: wlj | Feb 10, 2016 5:54:49 AM

I am flabbergasted at the Maryland AG's arguments here. I refuse to walk into court without a firm belief that I am right and that the law supports me. I'm a stubborn and passionate lawyer in court, which my opponents sometimes resent, but that's because I only walk in there in the first place when the law and facts justify it. If I have a weak or losing case, I don't STILL barge into court and argue whatever it is I think could maybe stick. I stay in my office, negotiating a compromise that justifies the correct end result.

I've looked at some of these cases cited by Colin and agree with him. Many if not all are completely indistinguishable. They are on-point, as we lawyers say. Arguing that CG made a tactical decision to not even investigate the Asia McClain angle is just freaking absurd. There are no facts to support that theory. If the State wanted to make that theory, it should have gotten a legal-representation expert to testify about it. It speaks volumes that the State disclosed such an expert but then failed to put him on the stand. I wonder why.

Posted by: A Pro-Adnan Prosecutor | Feb 10, 2016 6:10:19 AM

Do you also have a report on the possible Brady violation?

Posted by: David | Feb 10, 2016 7:59:08 AM

Can you explain how Judge Welch in the 1st PCR could possibly have found that CG's "decision" not to call Asia was strategic? Or is that simply SK's interpretation? From what I understand, this judge denied relief at his 1st PCR with (what appears to me) substantially the same evidence and precedent in front of him. He must have cited some case law to support his decision. Can you explain this to the layperson? Thanks

Posted by: Cat | Feb 10, 2016 8:05:40 AM

Very nice to hear from a very reasonable and ethical prosecutor! Wish they were all like him (or her):)

Posted by: Cathy my real name | Feb 10, 2016 8:22:26 AM

Could you please post the following information from the defense file?
-Information on Colbert/Flohr's visit to the library.
-Note where Adnan asked about prison mail and requested a self-addressed, stamped envelope.
-Billing log showing the PI contacted Adnan's potential alibi witnesses after his arrest.

Thank you.

Posted by: Seamus_Duncan | Feb 10, 2016 8:23:47 AM

wlj: Thanks. I fixed the error.

A Pro-Adnan Prosecutor: Thanks.

David: I’d like to read Waranowitz’s new affidavit before coming to any conclusions about the Brady claim.

Cat: As I noted, judges rely on precedent. There’s a Court of Appeals of Maryland case saying that an alibi witness needs to testify for the court to grant relief. Because Asia didn’t testify at the first hearing, Judge Welch couldn’t grant relief.

Seamus: There is nothing in the files about Colbert or Flohr visiting the library. As I’ve noted before, there’s a note in the PI’s billing summary about the PI possibly talking to an Officer Mills on 3/3/99, which is presumably the same Officer Mills who testified at the reopened PCR proceeding. There’s nothing else about Mills or what he might have said, and it seems that Mills didn’t recall any conversation with the PI when he testified. I don’t know about the note about prison mail. It’s probably somewhere in the files from Flohr or Colbert. The claim by the Deputy AG about contacting potential alibi witnesses was incorrect. Yes, the PI apparently talked to Nisha at one point, but he never talked to Jenn, Phil, Patrick, “Cathy,” or Krista, i.e., 5 out of the 6 people who showed up on Adnan’s call log or said they saw Adnan and Jay together in the hours after school.

Posted by: Colin Miller | Feb 10, 2016 8:55:14 AM

Great job Colin! The entire Undisclosed team is awesome.

You do know Seamus_Duncan is just Trolling right? I figured you would know this already by this point, but thought it worth mentioning just in case.

I was curious about one thing. If Judge Welch is deciding on this hearing (as opposed to a Jury trial), then what is the point of having evidence in or out, or objections sustained or overruled. Is it merely to influence what gets put into the written transcript (which might be later used in appeals?).

Posted by: Jack Lumber | Feb 10, 2016 9:01:01 AM

Ok, so if Flohr and/or Colbert sent their PI to talk to Steve Mills on 3/3/09, can we lay to rest the canard that they were only interested in character witnesses for the bail hearing? And why on earth would they be wasting time wit a security guard at the library on 3/3/99 if Adnan had not asked them to look into it? And if Mills doesn't remember speaking to Davis even though it seems clear that he did, why should we believe that Asia never spoke to him too. This is why in IAC cases, we start with the presumption that counsel was not deficient. CG took over from Colbert/Flohr. She could reasonably rely on their investigation of leads. I just wish she was alive to tell us what they told her.

Posted by: Jane | Feb 10, 2016 9:09:57 AM

Why haven't we heard about this PI-Nisha contact until now?

Posted by: Seamus_Duncan | Feb 10, 2016 9:12:14 AM

Also, what date did he speak to Nisha?

Posted by: Seamus_Duncan | Feb 10, 2016 9:13:18 AM

Jack: Right. This case will be appealed, so Judge Welch’s rulings were relevant to the record that could be used on appeal.

Jane: Given that Mills has said he didn’t even recognize Adnan, it’s probably a safe bet that Davis wasn’t sent specifically sent to interview him. He might have gone to the library because he was at Woodlawn to talk to Sye and it was right next door. Or, maybe Adnan told him (like he told Gutierrez) that he went to the library often, so Davis was seeing what he could find. Who knows? What we do know is that Adnan subsequently brought up Asia to Gutierrez and her clerk, and Asia said back in 2000 that she was never contacted (vs. Mills saying in 2016 that he doesn’t remember).

Seamus: I’ve mentioned it before when talking about the discrepancies in the State’s interview(s) of Nisha (4/1 vs. 4/9, in person or over the phone). There are no notes from the interview, just notes from Flohr or Colbert from early March in which Adnan says that he wouldn’t have called Nisha before 9:00 P.M. on a weekday when calls became free.

Posted by: Colin Miller | Feb 10, 2016 9:24:59 AM

Can we see those notes? What day did the PI visit her?

Posted by: Seamus_Duncan | Feb 10, 2016 9:31:15 AM

Seamus: Not sure. I think I've done my last deep dive into the files unless and until there's a new trial.

Posted by: Colin Miller | Feb 10, 2016 9:36:48 AM

Hey CM: I noticed that at his post hearing PC Justin Brown mentioned not being able to bring up certain issues (or something to that effect).
I assume that he may have been alluding to other questions about, for example, lividity evidence and/or the crimestoppers tip info that weren't introduced in the proceedings. Do you think that Thiu V. made a strategic decision to not call other witnesses to limit the state's exposure to these questions? I was somewhat surprised not to see the likes do Urick, MacGillivary, or Ritz on the list of potential witnesses.
Also, I was surprised that other questions pertaining to the cell tower subject weren't addressed- like the unscientific manner in which Urick conducted the drive-around test with AW. Also the fact that Chad F.'s expert testimony was disallowed in other cases because it was not accepted as sound science.
Thanks for the insightful commentary, as always.

Posted by: PatrickB | Feb 10, 2016 9:46:43 AM

Davis doesn't recognize Adnan 16 years later. Who knows what he said 6 weeks after Hae was murdered. And in 2000, Asia said "no attorney ever contacted me." Davis was not an attorney.

Posted by: Jane | Feb 10, 2016 10:04:52 AM

PatrickB: Putting up witnesses such as Urick, MacG, and Ritz risked opening huge cans or worms.

Jane: My understanding is that he's that he didn't recognize Adnan when they showed his picture after his arrest in 1999. As for Asia, she's remained steadfast that no one contacted her about the case.

Posted by: Colin Miller | Feb 10, 2016 10:12:23 AM

It seems to me that we wouldn't be having this conversation if this was any other lawyer than CG. So then...what difference does it make WHO it is?

Posted by: Megan Pawlak | Feb 10, 2016 10:33:24 AM

What are the repercussions to a lawyer being ruled ineffective at a later date (e.g. at an appeal)? And here's the strange question: if the repercussions are "light," and a defence lawyer feels they will 100% lose, could they intentionally act in an ineffective manner to increase the likelihood of a re-trial versus having to go to an appeal? This behaviour is unethical and would have to be done in secret of course, but forgetting to call an alibi doesn't seem like such an anomaly. Would there be a benefit to doing this? (e.g. more time to investigate, find other witnesses, etc). Thanks.

Posted by: Charles | Feb 10, 2016 10:46:49 AM

Hi Colin, when the witnesses were discussing CG as a colleague, was anything brought up about her heavy caseload of murder cases in several jurisdictions, including Puerto Rico? I would think this info might be pertinent, and I'm not clear if it got into the record. Personally, I believe that CG might have, knowing she was sick, taken on a heavy load of high price tag cases to provide her children with safety net (college fund, too) in case she wasn't able to work.

Posted by: Iheartegrets | Feb 10, 2016 11:02:43 AM

Colin, does a judge have the same access to social media references to the case as anyone else. I assume he can see your references you use above as well as less orderly thoughts on Reddit etc. Thanks, Nick

Posted by: Nick | Feb 10, 2016 11:16:55 AM


"And if Mills doesn't remember speaking to Davis even though it seems clear that he did, why should we believe that Asia never spoke to him too."

Are you suggesting that Officer Steve's poor recollection should make us skeptical of Asia McClain's memory?

Posted by: Paul | Feb 10, 2016 11:56:32 AM


Or are you suggesting that because Officer Steve failed to recall meeting Davis, that Davis must possess some kind of acute characteristic of general "forgettable-ness" -- meaning we shouldn't have any confidence in Asia's when she says she didnt meet Davis either? That would certainly be a creative angle to take.

Posted by: Paul | Feb 10, 2016 12:10:10 PM

Would the judge be swayed by the implication that Asia was lying? Or would that need some facts to buttress it as an argument?

Posted by: Fancy Nancy | Feb 10, 2016 12:20:20 PM

Ritz, MacG, and Urick were not called by the state to testify at the PCR.

My god, is it just me or does that look entirely to suspicious. The fact that the state can't even rely on calling on the two lead detectives in the case. Am I wrong?
EP Note: This is the 25th and final comment that will appear. Responses:

Megan: Probably not. This was definitely bad timing for Adnan to hire her.

Charles: It depends. There could be no consequences. There could be a malpractice claim. There could be suspension or disbarment. It depends on what the attorney did or didn't do.

Iheartegrets: It possibly came up.

Nick: The judge is just supposed to rely on the evidence in the record.

Paul: All of which makes the statement from him even more suspicious, as was made clear when he testified.

Gavin: No lead detectives, no lead prosecutor.

Posted by: Gavin | Feb 10, 2016 12:26:26 PM

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