EvidenceProf Blog

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

Tuesday, February 16, 2016

South Carolina Courts Find Failure to Contact Alibi Witness Ineffective, Despite PI Investigation

Today, I'm teaching ineffective assistance of counsel in my Criminal Adjudication class. One of the cases I will be discussing is Walker v. State723 S.E.2d 610 (S.C. App. 2012), which was decided by Judge John Few, the Chief Judge of the Court of Appeals of South Carolina. Judge Few teaches Advanced Evidence at the law school, and I've had lunch with him a few times. During one of those lunches, we (and another judge) discussed Serial and Undisclosed. Walker is another in a long line of cases stating the duty of a lawyer to contact a prospective alibi witness. It has particular relevance to Adnan's case

In Walker, Joseph Walker was charged with kidnapping and first-degree criminal sexual conduct.

The victim testified that on March 2, 2002, she sought a man's help in fixing her broken-down car at a BP gas station in Denmark, South Carolina. The man fixed her car with a wire he purchased nearby for $30. The victim did not have enough money with her, so she told the man to follow her home so she could pay him. She said the man came into her house uninvited, blindfolded her, drove her to his house, and raped her throughout the night. Early the next morning the man blindfolded her again, drove her home, and threatened to kill her if she told anyone. The victim testified that a few hours after she got home, she drank a rum and coke to calm her nerves.

The victim identified a man in the surveillance videotape from the BP station as her assailant. The BP store manager then identified the man as Joseph Walker.

During a recorded police interview, Walker claimed he could not have committed the crimes because he spent the night with his girlfriend, Robina Reed, on March 2, 2002.

Walker admitted he was at the BP station on March 2, but denied helping the victim fix her car. He said he left the BP station and went to see Reed at Hardee's, where she worked as a manager. Walker said he then stayed at a friend's house until about 10:00 p.m., when he drove to Reed's house to spend the night.

Although Walker's trial counsel watched the recorded interview, she

did not investigate Reed as a potential witness. At the PCR hearing, she claimed she thought her investigator was following up on Reed. Walker testified he told the investigator about Reed, and the investigator wrote Reed's name in the case file. Trial counsel said she did not know what, if anything, her investigator did to investigate Reed.

After Walker was convicted, he claimed that he received ineffective assistance based upon his trial counsel's failure to contact Reed. The PCR court granted relief, prompting the State to appeal. On appeal, Judge Few began by noting that

"[C]riminal defense attorneys have a duty to undertake a reasonable investigation, which at a minimum includes interviewing potential witnesses and making an independent investigation of the facts and circumstances of the case."...The duty to investigate a potential witness is even more critical when the witness might provide an alibi.

Applying this law to the case at hand, Judge Few noted that

Trial counsel did nothing personally to investigate Reed as a witness. Her claim that her investigator was exploring Reed's role in the case also does not satisfy her obligations under the Sixth Amendment. The duty to represent the client belongs to the lawyer. While it may be reasonable to allow investigators and paralegals to do some or all of the investigatory work, trial counsel has a duty to supervise the investigation, make sure it is completed, and familiarize herself with the results. Trial counsel's failure to adequately investigate Reed as an alibi witness under the circumstances presented in this case was unreasonable under prevailing professional norms, and therefore deficient performance under the Sixth Amendment.

Notably, as in Adnan's case, the State claimed that Walker's trial counsel acted reasonably by employing a different trial strategy that did not involve alibi testimony by Reed. Judge Few easily turned this argument aside:

The State points out, however, that the defense presented a theory that Walker and the victim had consensual intercourse and there was no rape. The State argues this was "a far better theory" than an alibi defense because an alibi would not have explained the victim's detailed and accurate description of Walker's house and truck. The State thus argues that trial counsel's failure to investigate Reed as an alibi witness is justified as a valid strategic decision. This argument mischaracterizes the role of strategy in the analysis of trial counsel's performance. If counsel had properly investigated the alibi defense, and then made an informed strategic decision not to pursue it, the State's argument would be persuasive. However, because trial counsel did not conduct an adequate investigation of the alibi defense, she could not have made an informed strategic choice.

And there you have it: (1) some investigation of an alibi defense by a private investigator is not effective assistance if defense counsel fails to contact the alibi witness; and (2) defense counsel cannot make the strategic decision to forego an alibi defense and pursue an alternate defense without first contacting the alibi witness. This is the same reasoning that Judge Welch (or the Court of Special Appeals of Maryland or the Court of Appeals of Maryland) is likely to apply in Adnan's case.*


*Interestingly, Judge Few found that Walker did not satisfy the "prejudice" prong because Reed eventually testified at the PCR hearing that "she could not specifically remember whether Walker spent the night with her on March 2." The Supreme Court of South Carolina eventually reversed on appeal in Walker v. State, 756 S.E.2d 144 (S.C. 2014), concluding as follows: "While we acknowledge, as did the PCR court, that Reed's testimony was not as clear as it could have been, due in part to the passage of five years, one viable interpretation of it was that Walker spent the night of March 2 with her." I agree with this "one viable interpretation" language, especially when alibi witnesses are testifying years after the event in question.  



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Was there DNA evidence? And if there was DNA evidence, would it make contacting an alibi any less relevant?

Posted by: Studentofthelaw | Feb 16, 2016 6:03:29 AM

Justin Brown also noted 70 or so cases. But are there any cases that go counter to this?

Posted by: Anon | Feb 16, 2016 6:48:17 AM

Studentofthelaw: There might be, and it might be tested at some point.

Anon: Presumably, these were the 70 cases I listed on this blog. I never found any cases with the opposite result, so I'm guessing the State also didn't find any.

Posted by: Colin Miller | Feb 16, 2016 1:18:35 PM

Studentofthelaw asked an interesting question, which I think you misread. Say hypothetically there was DNA evidence and it was tested back at time of trial, and came back as a positive match for Walker. What bearing, if any, would this have on trial counsel's duty to investigate potential alibi witness?

It seems like this wouldn't absolutely 100% prohibit an alibi defense from being used, especially if the witness turned out to be rock-solid. So it seems like it wouldn't change things necessarily. What do you think Colin?

Posted by: Paul | Feb 16, 2016 5:44:37 PM

Was Walker retried? If so, was he convicted?

Posted by: Kaetrin | Feb 16, 2016 8:22:39 PM

Paul: It shouldn't change things. There would still be a duty to investigate.

Kaetrin: Good question. I'm not sure.

Posted by: Colin Miller | Feb 18, 2016 12:46:10 PM

Below is a generic definition of an alibi from the Internet:

"An alibi is evidence showing that a defendant was somewhere other than the scene of a charged crime at the time that the crime occurred."

If Adnan told CG that he was in the library checking his e-mail at the time of the murder, does she have a duty to investigate that digital alibi by obtaining (or at least attempting to obtain) those records the same way in which she had a duty to investigate Aisa under the cases you've discussed? If so, is this another example of ineffective assistance of counsel?

Posted by: Jill | Feb 18, 2016 8:34:09 PM

In Walker vs. State, it appears the state dropped the charges. https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4552

Posted by: Eric Wolff | Feb 23, 2016 5:36:12 PM

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