EvidenceProf Blog

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

Sunday, May 15, 2016

PA Court Finds IAC in Murder Case Based on Defense Counsel Failing to Contact Alibi Witness He Didn't Trust

A few days ago, the Philadelphia Inquirer published the story, "Free after 10 years in prison, former lifer still feels trapped." The article is about the release of Edward Stewart after he served 10 years for a murder he did not commit. Why was he wrongfully convicted? His trial counsel decided that Stewart's fiancee was not credible and would have hurt his alibi. Importantly, he reached these conclusions without ever interviewing the fiancee as a potential alibi witness. And that's why his conviction was thrown out.

I've posted about any number of these cases on my blog, so we should all know the score by now. The opinion in the case is Commonwealth v. Stewart, and here are some choice quotes supporting the court's finding of ineffective assistance of counsel:

-According to the PCRA court, which presided over this trial, failing to interview the "known alibi witness was inexcusable here where there was only one eyewitness presented by the Commonwealth." 

-The Commonwealth...contends that trial counsel, despite having no prior substantive experience with the witness and never meaningfully interviewing her, had a reasonable basis for not calling her as a witness. Neglecting to call a witness differs from failing to investigate a witness in a subtle but important way....A claim that trial counsel did not conduct an investigation or interview known witnesses presents an issue of arguable merit where the record demonstrates that counsel did not perform an investigation....It can be unreasonable per se to conduct no investigation into known witnesses.

-Pointedly, our Supreme Court in a PCHA case held that it was improper for trial counsel to judge the credibility of a witness without interviewing that person.

-The Commonwealth attributes a reasonable basis for counsel's failure to substantively interview the witness where none exists. Here, counsel argued during his closing statement that Appellee testified credibly as to his alibi. Yet, he never substantively interviewed the alibi witness. 

-Absent some type of substantive interaction with the witness, the credibility of the alibi witness was not for trial counsel to arbitrarily decide....As our Supreme Court said in Mable,

the question here is the decision not to interview [the witnesses], not the decision to refrain from calling them at trial....the value of the interview is to inform counsel of the facts of the case so that he may formulate strategy. Perhaps, after questioning these witnesses, counsel may have concluded that the best strategy was not to call them....However, no such claim of strategy can be attached to a decision not to interview or make an attempt to interview eyewitnesses prior to trial.

-Like in Mable, counsel could have determined after interviewing the alibi witness that she should not be presented. Nonetheless, no such claim of a reasonable strategy attaches to a decision not to meaningfully interview the alibi witness before trial.



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My biggest question is what is taking Judge Welch so long to see this? Blindingly obvious.

Posted by: Cindy Norman | May 15, 2016 8:31:09 AM

As a non lawyer this seems so obvious. Why doesn't the State of Maryland have a clue? Thiru? Thiru?

Posted by: BruceinPA | May 15, 2016 9:13:40 AM

Could be that Judge Welch is being very, very meticulous. This case is going to garner a great deal of detailed public attention and Adnan’s case appears to be increasingly politicized. New evidence has been heard on two major issues, and this evidence, it is my understanding, must be analyzed (adjudicated?) in terms of factual meaning (is it true that …?), its relevance to the conviction must be demonstrated (if true did these facts make a difference that could have led to conviction--materiality), and these court findings must be carefully supported by detailed citation of the canon of legislation and case law. Several knowledgeable persons have opined that any decision of Judge Welch is almost certain to be appealed by one party or the other. So it is not surprising that the Judge may be insuring that his Ts are crossed and his Is are dotted. Nor do we know what else may be on his plate, if anything. Still, 3 months should be enough, one would think, especially with a potentially wrongfully convicted man sitting in prison.

Posted by: Hal Porter | May 15, 2016 1:54:00 PM

Cindy: IANAL, however I expect that Judge Welch is taking great pains with his decision on Adnan's case. If he rules in Adnan's favour, he is essentially ruling against himself. His reasoning needs to be accurate beyond belief. He doesn't want his last ruling, ever, especially a high profile one, to be brought down by the Court of Appeals (Colin can remind us all of the one piece they held back on appeal - I don't remember what it was)

Posted by: Nicole | May 15, 2016 6:44:40 PM

Justin Brown failed to establish that Asia McClain was not contacted by the defense. While Gutierrez passed away years ago, her private investigator was alive for the 2012 hearing and should have been called to establish that he did not contact McClain. Furthermore, there are a half dozen or so people who could have corroborated the assertion she was not contacted, including Colbert, Flohr, and Gutierrez’s clerks. The fact that these crucial witnesses were not called by Brown is compelling evidence that McClain was contacted, or at the very least that her story was debunked in some other way (possibly by Davis’ investigation of the library alibi on March 3, 1999).

Thus, despite multiple other crucial potential witnesses, the only evidence offered that McClain wasn’t contacted comes from McClain herself. Apart from her numerous inconsistencies on the stand, the recent revelation that McClain is attempting to profit from her testimony via a book shows a financial motivation to lie.

She was probably contacted by investigator Drew Davis, given the highly specific wording of her 2000 affidavit: “No ATTORNEY has ever contacted me about January 13, 1999 and the above information” (emphasis mine).

Posted by: Seamus_Duncan | May 16, 2016 11:22:17 AM

Cindy: There are thousands of pages of exhibits, the trial record, and the record of testimony from the witnesses at the reopened PCR proceeding. Additionally, Judge Welch has to research all of the pertinent precedent. I initially predicted that the opinion would take 4-6 months, which would men about June-August.

BruceinPA: There is a reason that Thiru didn’t cite any case law.

Hal: I have no doubt that Judge Welch is being very meticulous.

Cindy: Agreed.

Seamus: Asia testified that she was never contacted, and her 2015 affidavit indicated that no one from the defense team had contacted her. I also believe that one of the defense witnesses (maybe Dantes or Kanwisher) testified that the absence of Asia’s name on the alibi notice meant that she wasn’t contacted. The State presented no witnesses/evidence to contradict this. The points you raise (book/witnesses not called) are not part of the record that the judge is considering in making his ruling.

Also, I don't think the judge is even considering the issue of whether the defense contacted Asia. He indicated that they key question he wanted answered was WHY the defense didn't contact Asia.

Posted by: Colin | May 16, 2016 2:01:35 PM

"The State presented no witnesses/evidence to contradict this."

The burden of proof is not on the State in this hearing.

Posted by: Seamus_Duncan | May 16, 2016 3:25:54 PM

Seamus: Sure. Therefore, if Adnan presented no evidence/testimony regarding the failure to contact Asia, he would lose. But he did present such evidence/testimony, and the State presented nothing to rebut it.

Posted by: Colin | May 16, 2016 3:45:34 PM

"and the State presented nothing to rebut it."

Actually they presented compelling evidence that Asia lied about when she wrote the letters, and thus cannot be trusted in her claims.

That said, even if her testimony had not been successfully impeached, surely you would acknowledge that Brown's case would be much stronger if he had produced any of the half dozen people involved in the investigation of Adnan's alibi to corroborate the claim that McCain wasn't contacted. The fact that he chose not to call any of them is solid evidence that McClain was investigated, especially given that he didn't even have McClain to testify in 2012.

Posted by: Seamus_Duncan | May 16, 2016 3:57:50 PM

Seamus: I don’t think that the State presented any compelling evidence that Asia lied about when she wrote the letters. I also don’t agree that the defense refraining from calling other witnesses is “solid evidence” of anything. Certainly, it’s not legal evidence of anything. Moreover, as I’ve said, I don’t think that Judge Welch is even entertaining the idea that Asia was contacted. I think that’s a foregone conclusion given the question he asked to the attorneys.

Posted by: Colin | May 16, 2016 4:05:40 PM

Let me phrase it like this: You have argued for over a year that Jay’s story isn’t credible, even though it was corroborated by cell phone evidence, Jenn, Cathy, Jay’s knowledge of the location of the car, Jay’s knowledge of the burial, etc.

Why, then, do you accept Asia’s story, which is corroborated by – literally – nothing? There are at least five people alive today (six in 2012) who could confirm what steps were taken to investigate Asia’s story. Why haven’t we heard from them? What legal reason would Brown have for forgoing the opportunity to corroborate his witness?

Posted by: Seamus_Duncan | May 16, 2016 4:18:03 PM

Seamus: The cell tower pings contradict Jay in most instances. Jenn and Jay disagree about about pretty much everything. Cathy says she wasn’t even home at the time when Jay says he was smoking weed with her at her place. Jay’s (now changed) burial story is flatly contradicted by the lividity evidence. And there are a lot of questions about Jay and the car that are still being sorted out.

By way of contrast, Asia has consistently maintained that she saw Adnan on 1/13 and was never contacted by the defense. Why didn’t the defense present additional witnesses to testify that Asia was never contacted? Again, I don’t even think that this is an issue the judge is considering, and there was limited time at the proceeding. Moreover, unless every possible person who might have contacted Asia could definitively say they didn’t contact her, such an attempt wouldn’t really prove much.

Posted by: Colin | May 16, 2016 4:27:31 PM

That's the problem with proving a negative right? More overs the judge already cut short the presentation of evidence?

Posted by: Dan | May 16, 2016 10:51:49 PM

Colin - your continued patience with Seamus is commendable. He's clearly reeling from being banned on the DS for doing exactly what he's doing here...trolling.

Posted by: tms8 | May 17, 2016 10:23:34 AM

As an additional note, if there were all these people that could have testified that
Asia had been investigated, the state would have called them as witnesses for the prosecution and that it was Gutierrez's decision not to call her at trial.

Posted by: Mote | May 17, 2016 2:46:02 PM

"By way of contrast, Asia has consistently maintained that she saw Adnan on 1/13 and was never contacted by the defense."

Jay has consistently maintained that Adnan murdered Hae and buried her in a shallow grave with Jay's assistance. Could you please explain why Jay's consistent story, corroborated by the Nisha call, the LP pings, etc., isn't credible, but Asia's story, corroborated by literally nothing, and told with the goal of profiting from a book deal, is?

Posted by: Seamus_Duncan | May 17, 2016 6:28:06 PM

Seamus: 1. The lividity evidence contradicts Jay’s burial story. 2. Since her first police statement, Nisha says the Jay call occurred when Adnan was visiting Jay at his job, with Jay having no job on January 13th. 3. Jay himself now says the burial was after/closer to midnight, making the Leakin Park pings irrelevant. 4. Since her first letter on March 1, 1999, Asia has consistently said she saw Adnan in the library on January 13th.

Posted by: Colin | May 18, 2016 3:14:24 AM

Thank you Seamus for continuing your bad faith & dishonest posts. Each one is a red flag that is showing your hand. Getting imposible to not think you are Urick or being paid by him.

Posted by: Deb | May 19, 2016 6:47:58 AM

Seamus: Unlike you, I don’t know Asia so I cannot refute your inside knowledge that ‘the recent revelation that McClain is attempting to profit from her testimony via a book shows a financial motivation to lie.’ But I can say that, unlike me, you have never had a book published. Publishers’ lawyers go through the text of a soon to be published manuscript with a level of detail you clearly do not comprehend. Asia will have signed legal documents that she has written the truth. She will have been required to substantiate any contentious content. She will have been warned by the publisher’s lawyers that any dishonesty on her part will be dealt with both in the courts and with severe financial sanction. If there is one iota of evidence out there that Asia was contacted by the defence and she writes in her book that she was not, any financial gain she may receive from book sales will be eaten up by legal fees and financial reparations to the publisher and any other damaged party who chooses to take legal action. You, Seamus, don’t publish under your name and are not held to account for anything you say. No company is spending thousands of dollars publishing your work and putting their reputation on the line for the veracity of your statements. Asia is being held to a much higher standard. If, as you say, she has lied and is writing a book for the sole purpose of financially benefiting from that lie, she will be exposed. There is too much interest in this case for her not to be. But I wouldn’t hold your breath.

Posted by: FarFarAway | May 19, 2016 7:59:37 PM

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