EvidenceProf Blog

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

Monday, May 23, 2016

What Types of Attorney Behavior are Per Se Ineffective Assistance of Counsel?

Pursuant to the Supreme Court's opinion in Strickland v. Washington, a defendant establishes a claim of ineffective assistance of counsel by proving (1) that counsel’s performance "fell below an objective standard of reasonableness" as measured by "prevailing professional norms;" and (2) prejudice,i.e., "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." I've gotten a lot of questions about whether there are types of attorney conduct that per se constitute unreasonable performance under Strickland's first prong. The answer is a definite "yes."

Here are a few examples:

-"Counsel is per se ineffective if he fails to file a notice of appeal when instructed to do so." United States v. Lloyd, 633 Fed.Appx. 120 (4th Cir. 2016);

-"A per se violation requiring automatic reversal occurs...when trial counsel is either not authorized to practice law, or is implicated in the crime for which the petitioner stood trial." Wright v. United States, 2015 WL 7756109 (E.D.N.Y. 2015);

-"The Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding." United States v. Cronic, 466 U.S. 648 (1984); 

-"The Supreme Court has identified three circumstances under which a petitioner might prove a per se violation of the right to effective assistance of counsel: (1) complete denial of counsel at a critical stage of the case; (2) where 'counsel entirely fails to subject the prosecution's case to meaningful adversarial testing'; and (3) where circumstances are such that competent counsel 'very likely could not' render assistance." Duncan v. Carpenter, 2015 WL 1003611 (M.D.Tenn. 2015);

-"Padilla established the rule that failure to advise a defendant of deportation consequences of a guilty plea is per se ineffective assistance." Gonzalez v. United States, 2011 WL 1811655 (M.D.Fla. 2011);

-"It has been held that the Sixth Amendment right to counsel is not satisfied where the defendant was represented by a person who was never licensed to practice law, and in these circumstances, the defendant's deprivation of a licensed attorney is considered per se reversible error." Benford v. State, 54 S.W.3d 728 (Mo.App. 2001);

-"[W]e hold that Flores received ineffective assistance of counsel per se when his attorney failed to inform the State of Flores' acceptance of the plea offer prior to the expiration of such offer." Flores v. State, 784 S.W.2d 579 (Tx.App. 1990); and

-"A showing that a defendant was allowed to plead guilty upon the condition that another defendant represented by the same attorney also plead guilty is a per se showing of ineffective assistance of counsel which rises to the level of an unconstitutional deprivation of the right to counsel." Tarwater v. State, 383 S.E.2d 883 (Ga. 1989).

In addition to these per se examples, there are also cases where the Supreme Court has identified behavior that is generally unreasonable under Strickland's first prong, subject to certain possible exceptions. Probably the best example is the failure to communicate to a client a plea offer from the prosecution:

-"This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date." Missouri v. Frye, 132 S.Ct. 1399 (2012).

I would put failure to investigate/contact an alibi witness into this same category. As I've noted before, courts across the country (including the Court of of Appeals of Maryland and the Fourth Circuit) have approvingly cited to Grooms v. Solem, 923 F.2d 88, 90 (8th Cir. 1991), in which the Eighth Circuit held that "[o]nce a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense." 

Then, as I noted a week ago, the Superior Court of Pennsylvania held in Commonwealth v. Stewart that "[i]t can be unreasonable per se to conduct no investigation into known witnesses." In other words, failure to investigate/contact an alibi witness can be per se unreasonable, subject to certain possible exceptions.

So, what are some of those exceptions? I noted a major one in a prior post: It might be reasonable not to investigate/contact a cumulative alibi witness, especially if the attorney has limited resources. In other words, if the defendant's alibi is that he was at a Super Bowl party at the time of a murder, the failure to investigate/contact a 10th person at that party might be reasonable if the defense has already investigated/contacted 9 other people at that party and decided to call several of them as witnesses. By way of contrast, the failure to investigate/contact the one person who was allegedly watching the Super Bowl with the defendant would seem to be per se unreasonable.




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Hi Colin,

You quoted,

"[o]nce a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense."

I have been thinking about Asia a lot, like a lot of people. One thing I see as potentially differentiating Adnan's claims vs. others that you have posted about is this: CG had two written statements from Asia.

The question I have is, could review of these letters be considered a type of investigation of Asia's alibi for Adnan?

In 2012, Welch ruled that CG could have read the letters as an offer to lie as an example of a strategic decision that would have led CG to not follow up beyond reading the letters. That seems to imply to me that he considered review of the letter as a form of investigation that was sufficient to justify strategic decisions.

What do you think about that?

Posted by: bg1256 | May 23, 2016 9:55:54 AM

bg1256: I’m not aware of any precedent that would support such a conclusion. I am, however, aware of precedent that cuts the other way. In Holmes v. McKune, defense counsel gave the following excuse for not interviewing prospective alibi witnesses:

"... the witnesses had given statements to police. And I had read those statements and I was fully aware of what it was they were going to say anyway...."

Defense counsel also claimed that

“Mr. Holmes' ... recitation to me as to what these witnesses would say and what they eventually said were two very different things....”

Defense counsel said he thus became “somewhat disenamored with the quality of his (Holmes') alibi defense.”

According to the district court,

“On the record currently before the court, it cannot be found that counsel made a reasonable decision that further investigation of Holmes' alibi defense was unnecessary. Trial counsel's failure to investigate the alibi witnesses appears to have been more a matter of convenience than a tactical decision. [Defense counsel] testified that his failure was due to Holmes' not bringing the potential witnesses to his office. Counsel had a duty to contact the potential witnesses unless he made a rational decision that investigation was unnecessary. Montgomery v. Petersen, 846 F.2d 407, 413 (7th Cir.1988).”

I talked about Petersen here:


It’s the case in which defense counsel interviewed 12 alibi witnesses but was found ineffective for failing to contact a 13th. It’s been cited by both the Court of Appeals of Maryland and the Fourth Circuit.

I talked about Holmes v. McKune here:


The district court actually found unreasonable performance but not prejudice, followed by the Tenth Circuit finding prejudice.

Posted by: Colin Miller | May 23, 2016 10:24:05 AM

Again, Brown failed to establish that Asia wasn't contacted by the defense. Given Brown's refusal call any of the six or more people who worked to establish Adnan's alibi in either 2012 or 2016, it seems likely that Asia actually was contacted by PI Davis, and is simply lying in an effort to monetize her involvement in the case through her Blaze interview, book, etc. It has to be remembered that her original 2000 claim was specifically that “no attorney” contacted her.

That said, we know that Drew Davis investigated the library alibi. We also know Gutierrez was aware of the fact that Adnan asked Asia to type up and send him a letter (via the disclosure of the Ja’uan interview). Furthermore, she knew the prosecution knew about the contact between the defendant and this alleged witness. Asia would have been immediately discredited on the stand and her testimony would simply implicate Adnan further. The fact that the prosecution caught Adnan’s father offering a false alibi was likely devastating in the minds of the jurors.

Thus, even if the judge were to find deficient performance despite the investigation of the library and Asia’s lack of credibility, there is no prejudice here.

Posted by: Seamus_Duncan | May 23, 2016 1:11:12 PM

Seamus: 1. Again, I don’t think Judge Welch is even considering whether the defense team contacted Asia. His question was why the defense didn’t contact Asia, implying that he believes the defense failed to contact Asia. In the event, though, that he is addressing the issue, Asia testified that she was not contacted, and another defense witness was able to deduce from the records that Asia was not contacted.

2. The Ja’uan interview notes that reference Asia were not turned over to the defense prior to Adnan’s first and second trials. Moreover, the PCR defense presented Judge Welch with an affidavit by Ja’uan revealing that Thiru’s theory was not reality.

3. There is no evidence that there was ever contact between Adnan and Asia after his arrest, and Asia testified that there was no such contact. Instead, she was an alibi witnesses who was neither a relative nor a close friend. She was therefore a much better alibi witness than the alibi witnesses in many other IAC cases (e.g., Rondey Staples in Griffin, who was identified by one of the security guards as one of the perpetrators of the Rite-Aid robbery/shooting).

Posted by: Colin Miller | May 23, 2016 1:33:31 PM

Seamus, Why do you keep posting the same old things that are not supported by the facts? Either your brain is not functioning in reality or you have a very personal reason to continue your misleading PR campaign. Which is it?

Posted by: Deb | May 23, 2016 2:00:19 PM

“Again, I don’t think Judge Welch is even considering whether the defense team contacted Asia”

Whether or not the judge is taking this approach doesn’t change the fact that Brown failed to meet his burden of proof.

“and another defense witness was able to deduce from the records that Asia was not contacted.”

But the people who actually know the answer to this question were not called to testify. It’s frankly preposterous to assert that someone who did not work on this case is a credible source, when five people who actually know whether or not Asia was contacted are fully capable of testifying, and the sixth was capable of testifying in 2012.

“The Ja’uan interview notes that reference Asia were not turned over to the defense prior to Adnan’s first and second trials.”

The recording of the interview was turned over before the second trial.

“Moreover, the PCR defense presented Judge Welch with an affidavit by Ja’uan revealing that Thiru’s theory was not reality.”

Why don’t you just post the interview so we can judge for ourselves? We know you have it, since it was disclosed to the defense and played in Serial.

“There is no evidence that there was ever contact between Adnan and Asia after his arrest”

Yes there is. Ja’uan told the police that Adnan contacted Asia and affirmed this in his affidavit.

Posted by: Seamus_Duncan | May 23, 2016 2:29:16 PM

Seamus: 1. The defense has no burden of proof to satisfy if the judge has already determined that Gutierrez and her team failed to contact Asia. If the judge has not yet made that determination, Asia’s testimony alone about lack of contact is sufficient to satisfy the burden of proof. Sure, the judge could find that Asia is lacking in credibility, but that would mean that the IAC argument is a non-starter. But if the judge finds Asia credible, he’s going to find there was no contact.

2. Ja’uan was interviewed twice. One interview was recorded. The other interview as not recorded, but the police officer took notes. In his recorded interview, Ja’uan made no reference to Asia. This is the interview that was turned over to the defense between trials. The notes from the other interview, where Asia was mentioned, were not turned over to the defense in 1999/2000.

3. According to Ja’uan, “I recall telling police that Adnan talked about asking Asia to write a character letter. He my have asked her by letter (just like he did with me and Justin). I do not know if ever sent her the letter or not, nor do I know if she ever received it.” In other words, Ja’uan has no personal knowledge of whether Adnan ever did not contact Asia, and Asia testified that he never contacted her.

Posted by: Colin Miller | May 23, 2016 6:35:32 PM

We have PI Davis’s billing note that shows that he investigated the library only 3 days after Adnan was arrested, on the 3rd March.
My theory is that Adnan’s original defence looked into the library after Asia went to see Adnan’s family on the 1st March. PI Davis & Flohr, then go and see Adnan. I wonder if they found the signin sheet at the library and it shows that Asia and Adnan were at the library on the 7th January (the day before the first snow of the year – 4 inches fell in the early hours of the 8th January, so this was when Asia go snowed in).
PI Davis & Flohr tell Adnan that they found the signin sheet and ask Adnan if he was indeed at the library on the 13th January and he confesses to them that Asia has remembered the wrong day, that in fact he saw her at the library on the 7th January.
So there was no need for Adnan’s defence to ever speak to Asia about it because she was remembering the wrong day.
This would explain why Adnan’s current defence has never called anyone from Adnan’s original defence team prior to CG, in either the 2012 PCR (when Davis was alive) or the latest PCR hearing.
Thoughts on this theory?

Posted by: Ben | May 23, 2016 10:56:17 PM

Ben: So, under this theory, Adnan tells Flohr/Davis in early March that Asia saw him on January 7th, not January 13th, but then (1) he proceeds to tell both Gutierrez and her clerk on two separate occasions that Asia saw him at the library on January 13th; and (2) he tells Rabia after conviction that Gutierrez told him that Asia didn’t check out without any mention of what really happened. That doesn’t seem to make much sense to me.

Posted by: Colin Miller | May 24, 2016 3:22:30 AM

We have no evidence that Adnan proceeded to tell CG (just Adnan’s word, a convicted criminal). Yes we do have the law clerks notes but that could well just have been Adnan trying it on the law clerk. The law clerk then speaks to CG who tells the law clerk that she had spoken to PI Davis and Flohr and Asia is remembering the wrong day because Adnan had told them that and that she wasn’t going to be dishonest in the courts and / or it would be too risky as it could have easily backfired on them.
If my theory is correct then I am sure that Rabia is willing to lie for Adnan, like most of his family would be, so I take what Rabia says with a grain of salt.
If Rabia knew about the Asia alibi supposedly not being checked out back in 2000, then why did it take until 2012 to file the PCR? Why didn’t Rabia or Adnan’s defence at the time bring this up with CG at the time? Why didn’t Rabia speak to Asia’s boyfriend (of the time) and his friend back in 2000 and get affidavits from them? Why did they wait for CG to die before they brought anything to the courts – 12 years after Rabia had her ‘wow’ moment.

Posted by: Ben | May 24, 2016 4:57:25 AM

Ben: There are notes about Asia in Gutierrez’s handwriting that contain different times than the clerk’s notes (2:15-3:15 vs. 3:00) and additional information (e.g., “went to library often”). This tends to support the conclusion that this information came from Adnan as opposed to the clerk.

Posted by: Colin Miller | May 24, 2016 5:52:42 AM

Unless Adnan was committing perjury multiple times in 2012, there’s no reason for Asia to be mentioned in the clerk notes from 7/13. Adnan’s testimony is that he received the Asia letters while he was represented by Colbert and Flohr. Despite numerous misleading statements to the contrary, we also know that Colbert and Flohr, through Davis, were vigorously investigating Adnan’s alibi. The Asia alibi would have been confirmed or debunked long before Gutierrez even got involved in the case.

If you would be so kind as to post a full list of the information from the two prosecution disclosures in early July, I'm fairly confident we'll see why Asia makes her first appearance in the defense file around this time.

Posted by: Seamus_Duncan | May 24, 2016 9:14:02 AM

Seamus: The first mention of any of Adnan’s track teammates in the defense file is in a memo dated October 16, 1999. This is despite the fact that Adnan’s claim was always that he was at track practice on January 13, 1999 and despite the fact that Davis spoke to Coach Sye on March 3, 1999. So, why would it be at all strange for there to be no mention of Asia’s name in the defense files until July 13, 1999, more than 3 months before the first reference to Adnan’s track teammates? And, of course, this is putting aside the Gutierrez notes that reference Asia, which could have been taken at any point after she first met with Adnan.

Posted by: Colin Miller | May 24, 2016 10:16:59 AM

“So, why would it be at all strange for there to be no mention of Asia’s name in the defense files until July 13, 1999, more than 3 months before the first reference to Adnan’s track teammates?”

Adnan’s story is that he received the letters within the first week of being arrested. As you say, we have records of Davis investigating Adnan’s track alibi and his library alibi, as well as detailed reports on his other investigations from this time period. If, in fact, the letters are genuine, then there would be similar records relating to Asia from the time before Gutierrez was hired. Unless you want to suggest that Colbert and Flohr provided ineffective assistance, then it must be concluded that Adnan lied repeatedly under oath.

“And, of course, this is putting aside the Gutierrez notes that reference Asia, which could have been taken at any point after she first met with Adnan.”

Given the references to Asia (mentioned in the 7/13 notes) and the memorial service (extensively discussed in the 8/21 notes), it’s pretty clear the Gutierrez notes were written between those two interviews. That said, Gutierrez’s first meeting with Adnan was April 16, which is more than a month after Adnan claimed he received the letters. If the letters actually were written March 1 and 2, then the Asia story already would have been investigated by Colbert/Flohr/Davis.

Of course, there's really no evidence at all that the letters were ever given to the defense, which is another problem entirely.

Posted by: Seamus_Duncan | May 24, 2016 11:54:59 AM

Seamus: 1. Again, (1) we know that Adnan’s claim from before his arrest was that he went to track practice on January 13th; (2) we know that Davis interviewed Coach Sye on March 3rd; and (3) we know that there is no reference to Adnan’s track teammates in the defense file until October 16, 1999. Why, then, would it be strange that the first dated reference to Asia in the defense files is July 13th? If anything, it might have made more sense to prioritize the teammates. Before trial, the State had given every indication that they would claim that Debbie saw Hae, still at school, at 3:00 P.M. Under this timeline, establishing Adnan’s presence at track practice could have been seen as more important than establishing his presence at the library until 2:40 P.M. or 3:00.

2. IIRC, Gutierrez didn’t visit Adnan in prison between July 10th and September 17th. This would then strongly imply that the Gutierrez notes are from before July 13th unless we think that they were taken September 17th or later.

Posted by: Colin Miller | May 24, 2016 12:14:03 PM

Seamus (and Ben, currently) - Have you ever questioned why you are so fixated on proving Adnan's guilt? Any of us can dream up lists of "ifs" and "it’s possible that" and "that person might be lying" and create all sorts of random scenarios where Adnan *could* have done it.

But to do that, you always have to disregard mountains of established evidence that he *didn't* do it. Adnan could have had a secret identical twin that went to track practice while the other twin murdered Hae and drove around and made phone calls with Jay. That’s a plausible scenario, too, if you’re making up theories based on nothing.

You recently made the claim that *JAY’S* stories never changed and should be considered reliable because of it. Seriously????? JAY’S stories?? Never changed?? Good lord. His stories have never *stopped* changing!! Every time he opens his mouth he has a different version of his stories. He was still making up new versions last year when he gave his Intercept interview. And you find him reliable?? Wow.

Doesn’t it seem odd to you that you’re so obsessed with proving Adnan’s guilt despite zero evidence of it? I have to tell you, as someone with more than thirty years’ experience as a counselor, I know *I* certainly find it odd. At the very least.

Posted by: Eric Wolff | May 24, 2016 12:15:58 PM

“Before trial, the State had given every indication that they would claim that Debbie saw Hae, still at school, at 3:00 P.M.”

Are you suggesting that Colbert and Flohr had already decided that everything prior to 3:00 pm was irrelevant by the time Adnan supposedly received Asia's letters in the first week of March, just a few days after he was arrested?

As for the track teammates, Sye indicated that Adnan did not participate in practice during Ramadan. He just jogged off to the side on his own. So there’s no reason to believe Adnan would have made an impression on his teammates on January 13. In contrast, Adnan’s testimony is that he received two written offers of an alibi from Asia during Colbert and Flohr’s representation. So why would Colbert and Flohr dispatch Davis to investigate Adnan’s alibi via Sye and Officer Mills, but not bother to contact a supposed witness who provided multiple contact phone numbers and addresses? Someone is clearly lying here.

Posted by: Seamus_Duncan | May 24, 2016 1:21:02 PM

Seamus: 1. I’m not saying that Colbert and Flohr decided that everything prior to 3:00 P.M. was irrelevant. I’m just saying that they were ostensibly aware of the oft repeated claim that Debbie saw Hae at school at 3:00 P.M., meaning that the track alibi was potentially more important than a pre-3:00 alibi before the State pivoted at trial 1.

2. Coach Sye did not say that he sent Adnan off to the side to run on his own. He said he would send him to walk or jog on the track and that, on a rare warm practice day towards the end of Ramadan, he was walking on the outdoor track with Adnan when he asked him about Ramadan. A quick weather check would have made it clear that the day referenced only could have been January 13th. Therefore, if any track teammate remembered Adnan walking around the outdoor track the one time the team practiced outside in early or mid-January, they could have been a great alibi witness. Therefore, I don’t see any issue with Asia only appearing in the defense files on July 13th (although the undated Gutierrez note was likely earlier) when Adnan’s track teammates don’t appear until October 16th.

Posted by: Colin Miller | May 24, 2016 1:31:51 PM

"I’m just saying that they were ostensibly aware of the oft repeated claim that Debbie saw Hae at school at 3:00 P.M., meaning that the track alibi was potentially more important than a pre-3:00 alibi before the State pivoted at trial 1."

How would they have been aware of this in the FIRST WEEK Adnan was arrested? That’s when Adnan claims he got the Asia letters. Furthermore, if they decided the pre-3pm timeline was irrelevant, why did they send Davis to the library?

To cut to the chase, is it more likely that three or four experienced lawyers, multiple clerks, and an experienced PI investigated portions of the defendant’s alibi and ignored two written alibi letters? Or is it more likely that a convicted murderer and a woman seeking to turn a profit from a murder trial are willing to lie?

“A quick weather check would have made it clear that the day referenced only could have been January 13th.”

The fact that Adnan immediately dispatched his PI to research his first in-depth conversation with the track coach, which he just happened to remember occurred on this “normal day,” is really solid corroboration for Jay’s statement that Adnan was trying to be seen at track as an alibi.

Posted by: Seamus_Duncan | May 24, 2016 4:00:05 PM

Seamus: (1) On February 14th, Debbie told O’Shea that she had seen Hae at 3:00 P.M. on January 13th. Adnan and Debbie were friends, they had class together, they spent most lunch periods together in the library, and they planned Hae’s memorial together. As such, there seems to be a good chance that Adnan was aware of Debbie’s 3:00 claim. Also, TV news stories and newspaper articles, including the article on Adnan’s arrest, mentioned Hae being last seen at school at 3:00 P.M. Therefore, it seems clear that Adnan and his initial attorneys would have been aware of the 3:00 timeline.

(2) I never said the defense concluded that the pre-3:00 timeline was irrelevant. I simply said it’s easy to see why an attorney might have prioritized the track alibi over the library alibi given the State’s seeming 3:00 timeline before trial.

(3) What was the current PI’s testimony at the reopened PCR? I think it was that he contacted 41 of the people listed on Adnan’s alibi notice, with 37 saying they were not contacted by the defense and 4 saying they were contacted but not asked about providing an alibi? Given that, I find the failure to contact Asia completely unsurprising.

(4) Coach Sye was a great character witness for Adnan, which is why he was called at trial despite Gutierrez not realizing that he was also an alibi witness. It made all the sense to talk to him early.

Posted by: Colin Miller | May 24, 2016 5:24:23 PM

“mountains of established evidence that he didn't do it”
Please. There is a reason why Adnan was convicted.
Adnan requested a ride from his ex girlfriend. He told the police officer on the evening of the 13th that he did in fact request a ride but that he never got one because he got held up and she must have gotten tired of waiting for him. Then we have Adnan change his tune and start lying that he never did request a ride.
We also have Adnan who somehow has amnesia for the evening of the 13th and can’t remember where he was. But we have his cell logs showing that he was down at Cathy’s house (as well as Cathy’s testimony) around 6pm, he then heads up near woodlawn, and then the phone pings the vicinity of Leakin Park, and then it pings the vicinity of where Hae’s car was found. A 2hour period that Adnan can not account for even when he has the cell logs in front of him only 6 weeks after the fact.
Then we have Jay’s testimony and Jen’s testimony which was the big killer blow. Jay to this day who is adamant that Adnan killed Hae and does not back away from his story.
Yes there were issues with Jay’s story and how it changed but that was only because he was protecting his friends and himself. If Jay had of told the whole truth then he would have been charged with accessory BEFORE the fact, and Jay knew that so he lied about some details. Jay told his friends that Adnan killed Hae weeks before Adnan was arrested. Jay knew specific details about the burial and the car (where it was parked, that there was a broken lever, etc).
Jay isn’t a victim of police coercion / corruption. Jay is a criminal who knows that he should have served jail time for what he did. I think it is disgusting that he never served jail time, but that was the judge’s decision.

Posted by: Ben | May 24, 2016 9:25:57 PM

Ben: Those are two separate things, though. Whatever your view of the strength of the evidence of Adnan's guilt, there is plenty of evidence of his innocence ("something else" to do, Asia, lividity, etc.).

Posted by: Colin Miller | May 25, 2016 5:47:07 AM

"What was the current PI’s testimony at the reopened PCR?"

If the prosecution had refused to call Jay, and instead called a PI who talked to several people that Jay talked to, how quickly would the case have been dismissed? With no testiomony from Davis, Colbert, Flohr, Rita, Ali, or Michael, the appeal is dead in the water.

There's no evidence of Adnan's innocence. No credible alibi witness for 2:40-4:00 or 6:00 and later. No alternate suspects. He blocked DNA testing. The lividity argument isn't valid until you show your expert the full set of photos.

Posted by: Seamus Duncan | May 25, 2016 6:22:04 AM

Seamus: (1) If the State refused to call Jay and instead merely called people who talked to Jay, the case would have been dead in the water very quickly because testimony by these witnesses would have been inadmissible hearsay. The testimony by Adnan’s current PI is different. First, the defense didn’t have the PI testify about alibi testimony that these alibi witnesses themselves could have provided. Instead, he testified that almost all of these witnesses were never contacted by the defense. Therefore, there is no hearsay issue. Second, in any event, the rules of evidence don’t really apply at Maryland PCR proceedings. Third, even if they could have applied here, the State didn’t object to this testimony. The judge wanted to know why the defense didn’t contact Asia. Testimony that 37 alibi witnesses on the alibi notice were never contacted and another 4 were contacted but not asked about providing an alibi is pretty strong evidence that failing to contact Asia could have been the result of negligent alibi investigation.

(2) The Court of Appeals of Maryland has repeatedly said that closing arguments are the best way to assess prejudice. In closing arguments, the State claimed that Adnan had killed Hae by 2:36 P.M., whereupon he called Jay, who met him at the Best Buy. Asia testified that she saw Adnan at the library until 2:40 P.M. There are numerous cases in which courts have granted relief to defendants when uncontacted alibi witnesses testified on appeal that they saw those defendants at the same time the crime was allegedly being committed. Some of those cases come from Maryland (Parris W.) and the Fourth Circuit (Griffin). There are seemingly no cases to the contrary, and the State certainly cited no such cases at the hearing or in its appellate briefing.

Posted by: Colin Miller | May 25, 2016 7:18:40 AM

Notice how nobody is talking about Per Se IAC anymore, just Reddit-grade talking points stated as fact. Well done, Seamus, another thread successfully hijacked.

Posted by: carnotbrown | May 25, 2016 9:05:46 AM

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