Court of Appeals of Kansas Finds Alibi IAC Despite Concerns About Alibi Perjury, Hostility & Tampering

At the reopened PCR proceedings in the Adnan Syed case, the Deputy Attorney General tried to sell the following scenario to Judge Welch: Asia McClain's first letter was an offer to perjure herself as an alibi witness for Adnan. Meanwhile, her second letter was backdated to March 2nd despite being written at a later date based upon information provided by Adnan. Indeed, the Deputy AG even seemed to imply that the second letter might have been written by Adnan himself. 

According to the Deputy AG, under this scenario, which he admitted was "just a theory," Cristina Gutierrez certainly would have been relieved of her obligation to contact Asia McClain. Right? Wrong, at least according to the Court of Appeals of Kansas in State v. Sanford, 948 P.2d 1135 (Kan.App. 1997). 

In Sanford, Randall Sanford and Anthony Pica were allegedly involved in a robbery/kidnapping at 11:40 P.M. 

Pica served 6 months in the Clay County jail on [a] concealed weapon charge before being transported back to Wyandotte County to face the charges in this case. Pica and Sanford were then placed together in the same cell. Sanford typed a letter for Pica to sign, which stated that Sanford had nothing to do with the robbery. Pica testified that Sanford had him sign the letter in front of a notary.

Based in large part on this and other testimony by Pica, Sanford was convicted of two counts of aggravated robbery and two counts of kidnapping. He thereafter appealed, claiming that he received the ineffective assistance of counsel because his attorney, Max Goracke, failed to contact alibi witnesses who allegedly saw him at the Mill Street Tavern on the night of the crimes.

According to Goracke, he failed to contact these alibi witnesses for two reasons: (1) some were friends, acquaintances, or relatives of Pica, meaning that they could be hostile and/or harmful if called at trial; and (2) others seemed likely to perjure themselves. On this second point, Goracke testified that he did contact the defendant's wife, Kim Sanford.

Goracke testified...that Kim had originally told him that she and Sanford left the Mill Street Tavern at 11 p.m. After Goracke informed Kim that this testimony would not provide Sanford with an alibi, Kim changed her testimony. Although Goracke believed Kim to be his key witness, he thought that she would perjure herself if called to testify.

So, did this relieve Goracke of he obligation to contact the other prospective alibi witnesses? No. The court held that

It is not improper for an attorney to refuse to use a supporting witness when the attorney believes that the witness will either commit perjury or be hostile. Here, Goracke did not question the potential witnesses to determine whether they were hostile to his client or whether they could provide an alibi. Although many of the witnesses were friends, acquaintances, or relatives of Pica, they were also friends, acquaintances, and relatives of Sanford and might not have been hostile.

Choices made by counsel after a less than complete investigation can be reasonable, but only to the extent that the decision to limit or forego certain investigation is reasonable under the circumstances....Sanford and his wife claimed to have been with several people during the evening of the robbery. Although these witnesses might have provided an alibi, Goracke made only a perfunctory attempt to contact them.

Goracke's decision not to investigate further, either personally or through a hired investigator, was not reasonable under the circumstances.

Turning to the second prong of the ineffective assistance of counsel test, the court noted that one of the uncontacted alibi witnesses was Diane Watson, who testified on appeal that Sanford was with her and others at the Mill Street Tavern until "sometime between midnight and 12:30 a.m." The court did concede that Watson testified "that she had consumed a beer every 20 to 30 minutes and that nobody was watching the time that day," meaning that she could have been damaged on cross-examination. But the court ultimately found that "Watson was a close friend of Pica's sister and she did not know Sanford very well; thus, she would have little reason to lie." 

Of course, this isn't to say that Watson's testimony would have changed the outcome at trial. The court, however, found that, based upon this testimony, "the jury might have been more inclined to focus on the weaknesses in the State's case," causing a different outcome. And that was enough to order a new trial.