EvidenceProf Blog

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

Monday, June 27, 2016

Michigan Court Denies Alibi/IAC Claim Because Defense Counsel Rejected Alibi Witness After Contacting Her

I've written before about the key distinction between failing to contact a prospective alibi witness and "failing" to call a prospective alibi witness at trial. While courts have invariably found that the former failure is unreasonable for purposes of a claim of ineffective assistance of counsel, courts routinely find that the latter "failure" can be, and frequently is, reasonable. The latest example of this can be found in the recent opinion of the United States District Court for the Eastern District of Michigan in Gaines v. Burt, 2016 WL 3444042 (E.D.Mich. 2016).

In Gaines, Deondre Gaines was convicted of attempted murder and related crimes in connection with the shooting of Patrick Price and Jimahle Donald, which occurred on January 3, 2006 at about 6:20 P.M. After he was convicted, Gaines appealed, claiming, inter alia, that he received the ineffective assistance of counsel based upon his trial counsel failing to produce "his alibi witness, Nicole Riley, who would have testified that [Gaines] was with her on the afternoon of January 3, 2006, and until 8:00 p.m. that day."

In addressing this issue, the court cited to three cases that stand for the proposition that failing to contact alibi witnesses generally constitutes ineffective assistance. Bigelow v. Williams, 367 F.3d 562, 570 (6th Cir. 2004); Blackburn v. Foltz, 828 F.2d 1177, 1183 (6th Cir. 1987); Pillette v. Berghuis, 408 Fed.Appx. 873, 884 (6th Cir. 2010)

According to the court, however, the case before it was fundamentally different from these cases. The key difference was that Gaines's attorney did contact Riley, allowing him to make the strategic decision not to call her as a witness at trial:

[Gaines] states that he informed trial counsel about Ms. Riley, but he also states that counsel spoke with Ms. Riley in his office and then informed [Gaines] that Riley would not make a good witness because she appeared to have been drinking and that her appearance and demeanor would not be helpful to the defense. [Gaines] further alleges that his mother spoke with defense counsel about [Gaines]'s alibi and that counsel told his mother he was uncertain about Ms. Riley's character and did not think she would be a good witness....In light of these allegations, it is obvious that trial counsel investigated [Gaines]'s alibi defense and made a strategic decision not to call Ms. Riley.




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Can you please find a case where reading a letter doesn't count as communication?

Posted by: Monstimal | Jun 29, 2016 9:13:32 AM

monstimal: I posted about a case in which reading a police interview of an alibi witness didn’t count as communication. If Judge Welch finds that CG reading Asia’s letter(s) was a communication, I will search for one, but I don’t see him reaching that conclusion.

Posted by: Colin Miller | Jun 29, 2016 11:45:41 AM

His first decision pretty clearly considers the letters as communication since he says they give CG reasons not to contact Asia.

I'm not aware of any definition of communication that would not include that.

Posted by: Monstimal | Jun 30, 2016 12:38:01 PM

Well, his opinion today says CG didn't contact Asia and that this failure to contact her was unreasonable. He didn't, however, find prejudice.

Posted by: Colin Miller | Jun 30, 2016 2:25:32 PM

I find it hilarious that after all the blustering and arguing, even though Judge Welch denied the Asia issue, the reasoning he used didn't overlap with ANY of the reddit Guilters' arguments whatsoever.

The opinion is an excellent read, in fact, largely because he goes through and destroys all of the repeated arguments they've been harping on the last four months. None of Ex-trialatty or Seamus Duncan's absurd legal lets-call-them-arguments held any water whatsoever with the judge.

From my reading, he basically said despite all these arguments amounting to nothing but hot air, he points out that Jay and Jenn's testimony itself destroys the 2:36 timeline. Basically, if that un-evidenced nonsensical contradictory timeline didn't sway the jury, then probably an alibi witness further contradicting it wouldn't have swayed them either.

I don't know if I agree with that, seeing as I think the jury was unaware of the contradictions due to the prosecution claiming otherwise throughout the trial, and that defense counsel harping on an alibi witness would have drawn their attention successfully, but I sorta see his point.

And it's absolutely hilarious just how far removed from reality the Guilters legal arguments turned out to be--at least in the eyes of Judge Welch.

Posted by: Paul | Jul 1, 2016 11:32:12 PM

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