EvidenceProf Blog

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

Thursday, February 11, 2016

Wrap-Up of Adnan's Reopened PCR Proceedings: Addendum

While writing my post yesterday, I realized that Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992) is not only a very helpful case for Adnan under the "unreasonable performance" prong of the ineffective assistance of counsel test. It's also exceedingly helpful under the "prejudice" prong.

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The Deputy Attorney General's strategy during closing argument was to try to claim that Asia "was not a weapon for defense but weakness bc it helped corroborate State's timeline." Not the State's actual trial timeline, but the hypothetical timeline that the State could have advanced if it claimed that Debbie actually saw Hae at 3:00 P.M.*

Of course, as noted by Susan Simpson, the Deputy AG was mistaken in that he thought Inez Butler also claimed she saw Hae at 3:00 P.M. when she in fact testified that she saw Hae leaving school in a hurry between 2:15 and 2:20 P.M. Indeed, Inez's testimony is likely why the State claimed at trial that the 2:36 P.M. call was the Best Buy call at trial and read Debbie out of the timeline.** Under this actual timeline, Asia's testimony that she left Adnan behind at the library at 2:40 P.M. (or even 2:35 or 2:30 P.M.) would have been hugely valuable given that the jury was led to believe that Hae left Woodlawn soon after 2:20 P.M. at the latest.

That said, Debbie did testify that she saw Hae at 3:00 P.M., which you could conceivably argue placed Adnan in a position to abduct her (without anyone noticing) as Hae left school if Adnan were outside the library at 2:40ish. The problem for the State is that the Griffin case pretty clearly states that this type of possibility does not preclude a finding of prejudice.

In Griffin, the exact time of the Rite-Aid robbery was uncertain. The State argued that the robbery had been completed by 3:45 P.M. while one of the security guard testified that the robbers entered the Rite-Aid at 3:45 P.M. and did not leave until 10-15 minutes later.** Given that the defendant's alibi consisted of arriving at a house that was only 3 or 3-4 miles away from the Rite-Aid at 4:00 P.M., the PCR court denied the defendant relief.

As noted in Brief of Appellees, 1992 WL 12125964 (4th Cir. 1992), 

With regard to the testimony of Joseph Williams and Beatrix Williams, the post conviction court likewise found that the testimony did not establish an alibi. Given that the crime occurred at 3:45 p.m., and that the Williamses testified that Griffin arrived at 4:00 p.m., the post conviction court ruled that the evidence did not establish an alibi inasmuch as the Rite Aid was only three miles from Mrs. Williams's house. (J.A. 183).

Indeed, one could claim that such testimony could have hurt the defendant because it would explain why he was in the area, with a 4:00 P.M. arrival following the 3 mile drive from the Rite-Aid robbery at 3:45 P.M. 

In Griffin, however, the Fourth Circuit turned this argument aside, ruling as follows:

Joseph “Eddie” Williams and his mother, Beatrice Williams, both testified that Griffin arrived at their house at 4 p.m. on the date of the robbery, where he remained, watching sports and eating chicken, until nightfall. The state court concluded that this evidence did not establish an alibi because it “[did] not cover the period in question.” The court's conclusion is strained, at best. The Williams' house is three to four miles from the site of the robbery. Griffin testified that it takes twenty to twenty-five minutes to drive that distance because of numerous stoplights. Finally, the court ignored the trial testimony of one of the Rite Aid security guards, who testified that the robbers entered the store at 3:45 p.m. and did not leave until ten to fifteen minutes later.

In other words, it doesn't matter that the uncontacted alibi witnesses were unhelpful and possibly even harmful under one possible timeline; the defendant could, and did, establish prejudice because these witnesses could have rebutted an equally plausible timeline. In other words, an uncertain crime timeline helps, rather than hurts the defendant, which was the same point made by the Court of Appeals of Maryland in In re Parris W., 770 A.2d 202 (Md. 2001):

Given the distance between Ms. Cary's home and the place where Morton was assaulted, and given the uncertainty surrounding the time of the assault, Ms. Cary's testimony alone may have been enough to create reasonable doubt in the mind of the hearing judge had she been available to testify.

Simply put, "may have" is good enough to establish prejudice.

On the other hand, guess what's not good enough to defeat a claim of "unreasonable performance" or prejudice? Prior convictions. At the PCR proceedings, the Deputy AG asked David Irwin whether he would contact an alibi witness despite finding "out the alibi witness has five convictions for making false statements?" The response, of course, was "yes."

Interestingly, the State of Maryland made a similar argument in Griffin. This was based upon trial counsel's claim "that he did not want to use the alibi witnesses other than his mother because they had prior records." The Fourth Circuit easily rejected this argument, finding that (1) such a conclusion could not have been drawn without first contacting these witnesses; and (2) the jury could have believed these witnesses and not the security guards, who claimed that the defendant robbed them.

Given this conclusion, I'm thinking that Asia is a pretty good alibi witness, especially when her credibility is being matched up against Jay's credibility.


*As Hae was on her way to see Don and/or telling "Takera" that she didn't have time to give anyone a ride.

**The same goes for Becky's testimony about Hae leaving school minutes after it ended to go somewhere else.

***It is unclear if this was the same security guard who picked one of the defendant's alibi witness out of  a photo array as one of the robbers.



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And against urick's credibility as well! Justin's end with perjury hanging in the air was brilliant.

Posted by: Linnette garber | Feb 11, 2016 6:54:02 AM

If Adnan is granted a new trial, can the state start fresh and try to establish a new timeline now that they know what Asia’s testimony may be? Can Jay’s testimony change AGAIN in a new trial? Positive thoughts for your team and Adnan. ☺

Posted by: Denise Swisher | Feb 11, 2016 7:33:22 AM

I totally agree here about uncertain timeline argument. How would a defendant rebut an uncertain timeline? He would have to provide an alibi witness for each one and that's insane. It's like a moving target and if that's not prejudice, I don't know what is. And I like comparing credibility of Jay to Asia. That's a stark contrast. By the way do we know if Asia had any convictions? It's crazy that TV even suggested that, considering the state investigated Jay who must have had a record.

Posted by: Marina | Feb 11, 2016 7:50:20 AM

Thanks Colin for all your posts. I hope the judge is able to express himself as clearly when he gives his written order on the reopened PCR hearing. Either way I want to be able to follow his reasoning as easily as I do yours. Thanks again.

Posted by: Mary | Feb 11, 2016 8:58:16 AM

Good point. When there's uncertainty about when a crime occurred due to the state's lack of evidence, this really shouldn't bolster the prosecution's case.

Posted by: Paul | Feb 11, 2016 12:07:09 PM

Slightly off topic Colin, but did anything become of the records request for the Crimestoppers tip information?

Posted by: A Pro-Adnan Prosecutor | Feb 11, 2016 1:11:22 PM

What do you think about a motion for sanctions as a vehicle to get all of these incorrect statements in front of the judge? Perhaps a chart showing the actual testimony against the false assertions of the Deputy AG.

Posted by: RR | Feb 11, 2016 4:27:58 PM

Linette: The fact that the State didn’t call Urick leaves a pretty big gap in its case.

Denise: They can start fresh, but previous testimony/timelines can be used against them.

Marina: Asia does not appear to have any convictions.

Mary: Thanks.

Paul: Exactly.

A Pro-Adnan Prosecutor: There hasn’t been any information from the State. If Thiru called Urick, MacG, or Ritz, it would have been raised.

RR: I’m sure Judge Welch will compare the statements made at the hearing with the documentary evidence.

Posted by: Colin Miller | Feb 11, 2016 5:28:12 PM

Colin - we so appreciate all you are doing and taking the time to answer our questions. 2 questions:
1) If the judge rules in favor of Adnan - does he now have a presumption of innocence and could he potentially be able to get bail? I remember the Undisclosed episode about the devastating impact of him not getting bail originally.
2) Isn't it also ineffective assistance of counsel that Gutierrez didn't get the incoming call info? If the state was arguing there was a come-and-get-me call from Best Buy but incoming records could have contradicted that, shouldn't she have tried to get that information?

Posted by: Jodi | Feb 11, 2016 9:42:26 PM

Colin, will the judge be able to reconcile the outright misinformation that appears (by all reports) to have been offered by the state in the closing? It left no room for Justin to rebut - is this allowed? I don't expect the Judge to have remembered the same level of detail as some of the super fans, as the original case in its entirety isn't relevant to the PCR? Even if he reads the files, he may not put two and two together. I don't think I would.

Posted by: kate with a little k | Feb 12, 2016 12:25:14 AM

Jodi: 1. He could apply for bail, as in the Nicolas case, but I’m sure the State would fight it. 2. Adnan couldn’t prove that prejudice prong of the IAC standard because we don’t know what the incoming call information would have shown.

kate with a little k: Justin had a rebuttal closing where he addressed some of the issues. Beyond that, Judge Welch will be able to compare what Thiru said vs. what the actual documents say, and it’s pretty clear that there were several misrepresentations, whether intentional or not. Some that come to mind: (1) 20 minutes late to track; (2) Inez and Becky seeing Hae at school at 3:00; (3) Adnan’s regular routine not including trips to the library; (4) Adnan’s initial story being school-track-mosque; (5) Adnan asking about how mail at Central Booking was scrutinized; (6) Adnan’s PI contacting the people on Adnan’s call log and the people who saw Adnan and Jay together after Adnan’s arrest; (7) the information in Asia’s second letter matching up with the information in the search warrant affidavit; (8) Adnan not being moved to BCDC until weeks after his arrest; (9) etc.

I wouldn’t be surprised if some of these misrepresentations and others played a large role in Judge Welch granting Adnan a new trial.

Posted by: Colin Miller | Feb 12, 2016 3:37:17 AM

Colin, How deep do you expect the Judge's dive into the case to be? Is there a rule of thumb for the amount of cross checking a court does in this kind of case? Regarding the misrepresentations,do you think he will really focus on those/be concerned or will he focus mostly on the core legal issues at play here?

Posted by: AdditionalCoffee | Feb 12, 2016 9:20:47 AM

On what grounds would the state fight bail? Would the defense have a good argument against those grounds given the multiple false grounds that were used to deny him bail in the first place (his age, the pakistani uncle, etc)?

Posted by: E | Feb 12, 2016 9:24:52 AM

AdditionalCoffee: I can't tell from social media whether the Deputy AG introduced individual exhibits or just the entire defense file. In the latter scenario, Judge Welch has a lot of legwork ahead of him.

E: They would claim that Adnan is a flight risk and danger to the community based upon the first-degree murder charge.

Posted by: Colin Miller | Feb 14, 2016 3:41:59 AM

Hopefully Judge Welch will apply the same standard I do when confronted with multiple misrepresentations/errors from someone. If the statements all seem to help their argument and/or hurt their opponent's, I assume they were intentional. If the statements seem to randomly help one side or the other, I assume the person is merely incompetent.

Posted by: Dan | Feb 15, 2016 5:38:49 AM

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