EvidenceProf Blog

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

Monday, April 18, 2016

Court of Appeals of Texas Distinguishes Between Failure to Call & Failure to Contact Alibi Witnesses

In its recent opinion in Russi v. State, 2016 WL 1444040 (Tex.App. 2016), the Court of Appeals of Texas, Houston did a nice job of distinguishing between when behavior connected with a potential alibi witnesses is and is not unreasonable for purposes of establishing a claim of ineffective assistance of counsel.

In Russi, Ceasar Lakendrick Russi was convicted of aggravated robbery and aggravated assault. After he was convicted, Russi appealed, claiming that he received the ineffective assistance of counsel because his trial attorney did not call his girlfriend, LeSadia Harden, as an alibi witness. The trial court denied this claim, and the Court of Appeals agreed, concluding that

The affidavits submitted by appellant reflect that Harden was a potential alibi witness and would have testified that appellant was at his sister's apartment at the time of the charged offenses. However, we defer to the trial court's decision to believe that trial counsel made a strategic determination that Harden's testimony would not benefit appellant. Further, trial counsel's failure to call Harden as a witness did not preclude appellant from advancing a viable defense; trial counsel was still able to advance appellant's defense that he did not commit the offense and was elsewhere at the time through Rossi's testimony....We conclude the trial court did not abuse its discretion in finding that trial counsel was not ineffective and denying appellant's motion for new trial

The court was able to reach this conclusion because defense counsel contacted Harden but ultimately decided not to call her as an alibi witness because he found her to be inconsistent. According to the court, this made the present case different from its prior opinion in State v. Thomas, 768 S.W.2d 335 (Tex.App. 1989), which it cited for the proposition that "an attorney is ineffective if the failure to seek out and interview potential witnesses precludes the accused from advancing a viable defense."

Specifically, the court in Thomas held that "[t]he decision to call a witness is generally a matter of trial strategy, but the failure to interview a witness will be considered ineffective assistance of counsel when inaction precludes the accused from advancing a viable defense."



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This strikes me as a good line to draw, but the scary thing is that if Christine Gutierrez had contacted, but still not followed up with Asia McClain, Adnan would be left with one less option to demonstrate to the court how she was ineffective. I can probably cite two dozen instances of ineffective counsel and/or prosecutorial misconduct, but the only actionable ones seem to be the Brady claim and the failure to contact Asia. From the standpoint of Justice it seems so precarious to have gotten "lucky" those two mistakes were made or else Adnan would be in trouble despite the other glaring errors.

Posted by: Anonymous | Apr 18, 2016 8:37:01 AM

Thi seems like a DUH for me. CG couldn't have ever called Asia as a witness because she never contacted her in the first place. This seems obvious to me as an artist unskilled at lawyering (haha). Maybe I'm being naive but it seems some of these clarifications are nitpicking the obvious

Posted by: Megan Pawlak | Apr 18, 2016 8:40:04 AM

I would think the requirement "precludes the accused from advancing a viable defense" is huge escape clause. Can the State say, "There were other ways to present an effective defense. They just didn't use them. So this witness was not needed."

Posted by: Paul Cassidy | Apr 18, 2016 8:50:40 AM

Anonymous: I wouldn’t read the opinion as creating a dichotomy. Failure to contact an alibi witness is pretty much per se unreasonable, but “failure” to call a contacted alibi witness is not per se reasonable. The decision not to call such a witness is presumed to be strategic, but that presumption can be overcome.

Megan: Right. That was the Fourth Circuit’s point in Griffin.

Paul: If we look closer at the court’s opinions, we can see that the court is talking about overlapping and/or conflicting alibis. We can see how this makes sense in a given case. It would be tough for the defendant to claim defense counsel was ineffective based upon not calling/contacting an alibi witness whose alibi directly contradicts alibi evidence that was presented at trial (e.g., witness says defendant was at the park at the time of the crime while witnesses testified at trial that the defendant was at a party).

Conversely, in a case like Adnan’s case, where no defense witnesses testified about Adnan’s whereabouts during the State’s murder timeline (between 2:15 and 2:36), the failure to contact Asia precluded Adnan from advancing a viable defense.

Posted by: Colin | Apr 18, 2016 9:16:31 AM

Megan - No offense to Colin or other fine attorneys, but it seems to me that at least 50% of lawyering is "nitpicking the obvious."

Posted by: Dan | Apr 18, 2016 9:36:57 AM

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