Wednesday, February 10, 2016
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.