EvidenceProf Blog

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

Monday, May 30, 2016

Seventh Circuit Finds Defense Counsel Unreasonably Failed to Contact Additional Alibi Witness in Murder Case

My initial prediction was that Judge Welch would issue his opinion in the Adnan Syed case between June and August. With two days left in May, that would mean we are about to enter the three month period when I would expect his ruling. I've already written about the nine cases used by the defense to establish that Cristina Gutierrez was ineffective in failing to contact prospective alibi witness Asia McClain. Just last week, though, the Seventh Circuit issued an opinion that Judge Welch might also find useful. That opinion is Blackmon v. Williams, 2016 WL 3007212 (7th Cir. 2016).*

In Blackmon, at about 4:30 P.M.

On the Fourth of July in 2002, Tony Cox was standing outside a restaurant when he was gunned down by two men. The gunmen fled, but two women driving cars near the scene saw the murder and the shooters' faces. Not quite two months later, both women independently chose petitioner Eric Blackmon's photograph out of arrays, identifying him as the second shooter. They repeated those identifications at a live line-up and then again at trial. Primarily on the strength of their testimony, Blackmon was convicted of first-degree murder and sentenced to sixty years in prison.

Blackmon was convicted despite his proffered alibi, which was that he was at a barbecue at the time of the murder.

To support his alibi, he offered testimony from two witnesses, Tomeka Wash and Selena Leavy. Wash testified that on July 4, 2002, she had hosted a barbecue in the lot across the street from her home. At about 1:00 p.m., she had seen Blackmon at the barbecue firing up the grill, and by 2:00 p.m., between twenty and forty people had arrived at the picnic, with guests coming and going throughout the afternoon. About half an hour before the murder took place, Wash said, Blackmon was still at the picnic playing chess and barbecuing. She said that she stayed until 10:00 p.m. that night and never saw Blackmon leave. According to Wash, she was close to Blackmon throughout the picnic and could see him “all the time.”

Leavy testified that she attended the same barbecue, arriving about 2:45 or 3:00 p.m. When she arrived, she saw Blackmon at the barbecue cooking and she said that at approximately 4:00 p.m., Blackmon had fixed her a plate of food. She also said that between 3:00 and 4:00 or 4:30 p.m., Blackmon was at the picnic playing dominos or chess with his friends and that he never left the barbecue at any time between her arrival and her departure around 8:00 p.m. Finally, she testified that Blackmon's car did not leave the barbecue, either: the attendees had been using its radio for music and so presumably would have noticed if someone had driven it away.

Thereafter, "[o]n cross-examination, the prosecution brought out that Wash had two felony convictions and that Leavy was Blackmon's cousin."

After he was convicted, Blackmon appealed, claiming that he received the ineffective assistance of counsel based upon his trial attorney's failure to contact additional barbecue attendees who were potential alibi witnesses. After he was unsuccessful in state court, Blackmon brought a habeas claim in federal district court, with that court denying relief without an evidentiary hearing.

Blackmon then appealed to the Seventh Circuit. On appeal, the Seventh Circuit reversed. Under the reasonableness prong, the court began by noting that

On this record, the State must concede, at least for purposes of this appeal, that counsel did not interview any of the additional alibi witnesses whom Blackmon identified, but the State argues it was enough that counsel “learned the substance” of their testimony from interviews with Blackmon and his family members. Blackmon's affidavit, which the State cites for support, says only that Blackmon informed his counsel he was at the barbecue, that plenty of people could vouch for his presence, and that he eventually provided his counsel with names, addresses, telephone numbers, and as much information as he could on potential alibi witnesses. This does not mean that counsel knew the substance of those witnesses' testimony. Counsel had no way of knowing, for example, if any of the witnesses could definitively place Blackmon at the barbecue at 4:30 p.m. Such testimony could have provided Blackmon with a much stronger alibi. Nor does it appear that counsel or the state court considered the benefits of alibi testimony from disinterested witnesses who, as far as we know (and unlike Wash and Leavy, who did testify for Blackmon), had no family ties to Blackmon and no felony convictions. (emphasis added).

The Seventh Circuit then found that

Counsel's failure to investigate undermines the state court's analysis, which appears to assume that counsel knew, somehow, that the additional alibi witnesses would offer purely cumulative testimony. If counsel never learned what the witnesses would have said, he “could not possibly have made a reasonable professional judgment that their testimony would have been cumulative.”...The unreasonableness of counsel's failure to investigate is further bolstered by the significant potential benefits of obtaining alibi testimony from witnesses unimpaired by family ties to Blackmon or prior convictions, another point the state court apparently did not consider. (emphasis added).

The court then addressed another argument by the State:

The State also argues that the individual alibi witnesses would themselves have had vulnerabilities. That's possible, of course, but counsel could not have known those vulnerabilities without doing at least some investigation of the witnesses and the testimony they could provide. There is also no indication he considered the effect all the witnesses might have had in combination, any individual weaknesses notwithstanding. (emphasis added).

All of this led to the court's conclusion that

the record provides no support to treat as reasonable a decision not to investigate further the available alibi witnesses from the barbecue. Blackmon's location at 4:30 p.m. was the pivotal issue for the defense. Additional disinterested and credible alibi witnesses could have made a significant difference in the viability of Blackmon's defense, especially given the problems with the alibi witnesses who did testify....Nothing in the record shows that investigating those witnesses would have been “fruitless or harmful,”...and the benefits could have been enormous. Just one witness might have been able to give Blackmon a true alibi. At a minimum, all of them could have bolstered his claim of being at the barbecue all afternoon. It is not reasonable strategy to leave such possible testimony unexplored under these circumstances. So even giving both counsel and the state court the substantial deference they are due under Strickland and AEDPA, respectively, the state court's finding with respect to trial counsel's performance was, on this record, unreasonable. (emphases added).

There are a number of important takeaways from the Seventh Circuit's reasonableness analysis: (1) it is imperative to interview prospective alibi witnesses who aren't encumbered by prior convictions or familial relationships with the defendant; (2) talking with other people about an alibi witness does not obviate the need to contact a prospective alibi witness herself; (3) even one witness can provide a defendant with a true alibi; and (4) counsel can't make reasonable decisions regarding prospective alibi witnesses without first talking with them.

This then takes us to the Seventh Circuit's prejudice analysis. The court could not complete this analysis without the testimony of the uncontacted alibi witnesses, so it remanded in order for such testimony to be received. In other words, the court did exactly what the Court of Special Appeals of Maryland did in Adnan's case. In doing so, though, the court made some interesting observations:

The alibi witnesses' testimony is not definitive, of course. Maybe they are honestly mistaken or even lying. It's also possible that everyone who would testify that Blackmon was at the barbecue all afternoon missed seeing him leave during the critical window of time. No one can testify specifically to seeing him close to the critical time of 4:30 p.m., though Sheryce Crowder, the mother of Blackmon's daughter, claimed she was near him all afternoon. All of the witnesses are vulnerable to attacks on their memory at this point. Many of them did not know until years after the barbecue that Blackmon had been arrested for murder. At the time, they would have had no reason to consider the barbecue or Blackmon's presence at it of any particular importance.

These are fair criticisms. But to establish prejudice, Blackmon does not have to prove actual innocence; he does not even have to show that counsel's errors more likely than not altered the outcome in his case....He must show only a reasonable likelihood that the outcome would have been different—that is, a likelihood that is “substantial, not just conceivable.”... Given the weakness of the State's case—the complete lack of any motive, the dearth of physical evidence, and the heavy reliance on the eyewitness identifications of two strangers who saw the killers for only seconds—we conclude that on this record, it is “substantially likely that [Blackmon] could have raised at least a reasonable doubt and had a different outcome at trial” if counsel had provided adequate representation.

In other words, the Seventh Circuit is noting that there will likely be reasons to question the future testimony of the alibi witnesses but that, even with such reasons, there is a good chance that their testimony will create the reasonable likelihood that their testimony would have created reasonable doubt at trial. And that's all it will take for Blackmon to get a new trial.


*This is a Seventh Circuit case, which means that it's not controlling in Maryland. But, given that the Maryland precedent (Griffin and Parris W.) is unequivocally in Adnan's favor, this opinion by a federal court of appeal is as good as any other should Judge Welch look beyond the Terrapin state for support for his conclusions.



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"That's possible, of course, but counsel could not have known those vulnerabilities without doing at least some investigation of the witnesses and the testimony they could provide."

Two key differences here in the Syed case. First, the library alibi actually was investigated by Drew Davis on March 3, so Asia’s story could be been discredited via the computer sign-in sheet. Davis’ report on the library alibi seems to be “mysteriously” absent from the defense file, and Davis wasn’t called to testify in 2012 when Asia no-showed, so the logical conclusion is that his investigation debunked this story.

Secondly, assuming Adnan did actually give the letters to his defense as he testified, Gutierrez would have immediately known about the vulnerabilities of Asia’s testimony. The letters clearly looked like an offer to lie and all the evidence suggests the second letter was backdated after contact with Adnan. She described contact with the murderer's friends and family. Furthermore, Gutierrez knew the prosecution had a witness who said Adnan sent Asia a letter he wanted her to type up, so her testimony would have immediately been impeached.

And again, given the failure by the defense to present any of the six or more defense team members who know the true story, Brown failed to meet his burden of proof. All he has is one witness saying she wasn’t contacted as part of an effort to profit financially from her testimony.

Posted by: Seamus_Duncan | May 30, 2016 4:57:42 PM

Very interesting post, it sure has tangents to Adnan's case.

But would you agree that the 'lack of any motive' in the Blackmon case is quite different from Adnan's case? Wasn't motive an important factor for the judge and the jury?
(this is aside from my/your personal opinion if he had motive or not)

Posted by: Martin | May 31, 2016 6:10:14 AM

Seamus: (1) In Blackmon, the defense did investigate the barbecue alibi. Indeed, the defense actually called two alibi witnesses from that barbecue. The problem was that the defense did not fully investigate the barbecue alibi by contacting other people who attended that barbecue.

The same applies for Adnan. Davis did talk to Officer Steve. We don’t know exactly what they discussed, but we do know that Asia says she was never contacted by the defense, which is required, as per the Seventh Circuit’s opinion.

(2) First, as I’ve noted before, the State didn’t turn over the notes from the Ja’uan interview in which he mentioned Asia. Second, in addition to Kanwisher’s testimony on the subject, Asia testified that she was not contacted by the defense. If the judge believes Asia, that’s enough to prove she wasn’t contacted. And, if the judge believes Asia, that’s enough to create the reasonable probability that her testimony would have led to reasonable doubt at trial. It’s up to the judge to make a credibility determination, and we’ll see how he rules.

Martin: Yes, that’s a difference. That said, there were two independent eyewitnesses who identified Blackmon. I’ve often talked about the problems with eyewitness testimony, but those problems are less worrisome when there are multiple eyewitnesses. As the Blackmon court noted:

“The State had matching independent identifications from Reece and McDowell. We have repeatedly recognized high rates of error in eyewitness identifications of strangers….But we have also recognized that those findings ‘have only limited application when multiple witnesses identify the same person.’”

All of which goes to say that the cases against Blackmon and Adnan were both weak, but in different ways.

Posted by: Colin Miller | May 31, 2016 6:43:00 AM

“First, as I’ve noted before, the State didn’t turn over the notes from the Ja’uan interview in which he mentioned Asia.”

But they turned over the recording, so I’m not sure what your point is.

As to Asia’s credibility, consider this. Several months ago you posited that Jay may have falsely confessed to involvement in a homicide as part of some scheme to obtain a reward for the purchase of a motorcycle. You made this claim even though there is no proof whatsoever that any reward money was paid out, let alone paid out to Jay. Now, we have proof that Asia is attempting to monetize her involvement in the case via her book deal. Considering that you questioned Jay’s credibility based on a CrimeStoppers payout that probably never happened, how does Asia’s proven effort to profit from her testimony influence your opinion as to her motives and credibility?

Posted by: Seamus_Duncan | May 31, 2016 8:47:16 AM

Seamus: (1) Ja’uan didn’t mention Asia in his recorded interview. He mentioned Asia in his unrecorded interview. The police notes from that unrecorded interview were not turned over to the defense in 2000.

(2) As I’ve noted before, we have written documentation from Metro CrimeStoppers that the reward of $3,075 was paid out in this case. If Asia had come out of the woodwork in 2014/2015/2016 with a claim about seeing Adnan in the library on 1/13/99, I would feel a lot differently. But Asia wrote her letters and signed her first affidavit over a decade before Serial was even an idea.

Posted by: Colin Miller | May 31, 2016 12:12:25 PM

"(1) Ja’uan didn’t mention Asia in his recorded interview"

Can we hear it?

" As I’ve noted before, we have written documentation from Metro CrimeStoppers that the reward of $3,075 was paid out in this case."

Can we see it?

Posted by: Seamus_Duncan | May 31, 2016 12:42:38 PM

Seamus: (1) WRT Ja'uan's interview, maybe you can get it from Serial if you ask nicely.

(2) WRT CrimeStoppers, maybe you can get it from Metro CrimeStoppers if you ask nicely.

Posted by: Colin Miller | Jun 1, 2016 6:07:15 AM

Do you teach your students that "I have evidence, but I won't show it to you, just trust me" is a persuasive argument in a court of law?

Posted by: Seamus Duncan | Jun 1, 2016 6:18:02 AM

Seamus: I'm not making an argument in a court of law. If the CrimeStoppers issue is ever raised in a court of law, the documentation will be introduced.

Posted by: Colin Miller | Jun 1, 2016 7:04:26 AM

Am I correct in positing that the claim has now been waived since Brown declined to address the issue? Also, why does the claim have to be raised in court before you offer any proof?

What if I were to tell you I have actual proof of a witness in the Syed case making a significant investment shortly after a related participant in the case received a significant amount of cash? What conclusion would you draw?

Posted by: Seamus_Duncan | Jun 1, 2016 7:53:01 AM

Seamus: No, it has not been waived. We know that a payout was made. We don't know who was paid. If and when we find out who was paid, a Brady claim can be made.

Posted by: Colin Miller | Jun 1, 2016 9:03:32 AM

Do you think it's ethical to publically accuse Jay and the prosecution of wrongdoing while refusing to offer any evidence?

Posted by: Seamus_Duncan | Jun 1, 2016 10:44:18 AM

Seamus: (1) There would be nothing wrong with Jay giving the CrimeStoppers tip or receiving the CrimeStoppers reward. (2) There would be something wrong with the State failing to turn over the fact that someone received the $3,075 reward, regardless of whether that person was Jay or someone else.

Posted by: Colin Miller | Jun 1, 2016 2:13:41 PM

Game, set and match to the man with manners.

Posted by: WLJ | Jun 1, 2016 2:27:19 PM

Actually, accomplices are not supposed to collect money from CrimeStoppers, so you ARE implying Jay is guilty wrongdoing.

Regarding the prosecution, again, you have presented no evidence a tip was paid out. Is it ethical to accuse someone of wrongdoing without any proof?

Posted by: Seamus_Duncan | Jun 1, 2016 4:20:42 PM

It seems as if, at least in the Seventh Circuit, Syed’s IAC claim is in good shape. In the Blackmon ruling the Court seems to be affirming that defense counsel is required to investigate the client’s alibi. Syed’s counsel not only failed to investigate Syed’s alibi, but failed to even make contact with an alibi witness who came forward on her own. Given this ruling, without the fact that a specific alibi witness was ignored, would there have been be an IAC case to be made that the defense did not investigate Syed’s alibi?

It does strike me that defense attorneys will, ironically, have the most trouble defending an innocent person because of the way many US police and prosecutors tend to withhold or obfuscate as much information about the case as possible for as long as possible. It must be difficult to refute a crime about which you are ignorant. For what time do you need an alibi? How was the crime committed? What kind of evidence are they looking for?

A few things random things: Blackmon’s original trial was a bench trial? Is that not unusual? I was amused/horrified that the trial judge found the eyewitness evidence of strangers who saw the shooter briefly and from a distance more credible than the witnesses who knew Blackmon and saw him at the barbeque because the shooting witnesses seemed so confident on the stand. Yikes. I found it interesting that the court specifically called out how Blackmon seemed to appear in the investigation out of nowhere. Oh, and there was a tip in this case, too. Except the investigation of the information stemming from the tip disappeared, to be replaced by Blackmon.

Posted by: A nonny nonny | Jun 1, 2016 4:51:27 PM

Seamus: (1) An accessory after the fact is not an accomplice. See, e.g., http://www.leagle.com/decision/1985627304Md323_1600/OSBORNE%20v.%20STATE. (2) I have no problem stating that a $3,075 reward was paid by CrimeStoppers when I have written documentation from CrimeStoppers.

A nonny nonny: Yes, under Seventh Circuit law, Adnan has a great claim. Luckily for Adnan, there’s another great Seventh Circuit case on the issue that has been cited with approval by Maryland’s highest court:


Posted by: Colin Miller | Jun 1, 2016 6:07:41 PM

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