Tuesday, June 7, 2016
5th Circuit: "[A]t a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation"
Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985), is another in a long line of cases establishing a near per se duty for defense counsel to interview alibi witnesses brought to their attention by defendants. According to the Fifth Circuit,
Although the scope of the required investigation is a function of the “number of issues in the case, the relative complexity of those issues, the strength of the government's case and the overall strategy of trial counsel,” this circuit has recognized that, at a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case. This duty is reflected in the American Bar Association Standards for Criminal Justice, a proper guide for determining what is reasonable under the circumstances. These specific obligations inherent in counsel's duty to investigate must temper the amount of deference we give Burdine's on-the-spot actions in evaluating his performance.
So, what were the facts in Nealy?
In Nealy,
Leo Davis was murdered in his grocery store located in Clay County, Mississippi, in 1976....
After the police discovered Davis' body, they arrested Wiley Ewing and charged him with Davis' murder. Ewing confessed to the killing, and assisted the police in recovering a pair of gloves, a knife, and a sawed-off shotgun used in the murder. Ewing also admitted taking some money from Davis' cash register and two $100 bills from his billfold. Ewing stated that he had travelled to and from Davis' store in a car borrowed from Nealy, and that he had hidden the $100 bills in the hubcaps of Nealy's car. Nealy was present when Ewing was arrested. He allowed the police to search his car, and two $100 bills were found inside a hubcap. Ewing did not implicate anyone else in the crime, and Nealy was not arrested at this time.
Several days later, however, after conferring with his attorney, Ewing gave a statement to the police in which he again confessed to the crime, but in addition, implicated both Nealy and T.L. Cunningham. According to Ewing, the three men had visited the home of Dorothy Belk where they stayed for five to fifteen minutes. From there, they set out in Nealy's car, and, after beginning their ride, decided to rob Davis' store. They parked approximately a quarter-mile from the store and walked to it, arriving between 8:00 and 9:00 p.m. Cunningham entered the store first in order to distract Davis. Ewing and Nealy then came in, and Nealy struck Davis across the face with the shotgun. After Davis fell to the floor, Ewing began to stab him, and, in the course of the melee, Nealy again struck Davis with the gun, Cunningham kicked him, and Ewing cut his throat.
This is a fairly detailed confession that seems to implicate not only Ewing but also Nealy and Cunngingham. Nealy, however, claimed that it was a lie. Nealy
claimed that the three men (Ewing, Cunningham, and he) went to Dorothy Belk's home shortly after 8:00 p.m. and stayed for fifteen or thirty minutes. They left about 8:30 and went to Avant's pool hall, arriving at approximately 9:00. He testified that other people were at Avant's when he arrived, including Richard and “Duck” Jones. He stated that the three men and the two Jones brothers left together shortly after 9:20, and that, after he drove Cunningham and the Joneses home, he drove himself home and lent Ewing his car. He denied complicity in the crime.
But neither Belk nor the Jones brother testified at trial, and Nealy was ultimately convicted of murder. Nealy subsequently appealed, claiming that his trial counsel failed to contact these alibi witnesses despite the fact that Nealy had given him their names. This lead the Fifth Circuit to note the usual deference given to decisions by trial counsel, followed by the block quote that led this article.
The court did recognize that there can be specific circumstances where failure to interview an alibi witness is not ineffective, such as when "the defendant c[an] point to no specific evidence that would have been uncovered by a more thorough investigation." But, the court found that, in this case,
Nealy has identified specific missing testimony, and has argued that there was no reason for Burdine not to have at least attempted to locate the Jones brothers or to contact Belk. Burdine did not testify that such efforts would have been fruitless, nor did he claim that the decision not to investigate was part of a calculated trial strategy. He simply failed to make the effort to investigate. Burdine, therefore, “did not choose, strategically or otherwise, to pursue one line of defense over another. Instead, [he] simply abdicated his responsibility to advocate his client's cause.” Burdine's failure to investigate thus resulted in a “factual vacuum” and cannot withstand sixth amendment scrutiny.
-CM
https://lawprofessors.typepad.com/evidenceprof/2016/06/nealy-v-cabana764-f2d-1173-5th-cir-1985-is-another-in-a-long-line-of-cases-establishing-a-nearper-se-duty-for-defense.html
Comments
Clearly, given the amount of case law you've cited, counsel's failure to contact a potentially significant alibi witness should eventually result in a successful IAC claim. So what are the thorny issues at play in reaching a decision in this matter? Is it Brady? As someone else commented on a previous post, it might be interesting to shed some light on how judges draft rulings and why they take so much time. As an aside, it's a funny thing, justice: those who seek it seem to wait the longest to be served.
Posted by: streetwriter | Jun 7, 2016 2:11:23 PM
Seamus: As the case notes, “at a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case.” Nealy is a Fifth Circuit, but the Fourth Circuit said basically the same thing in Griffin. Thiru posed a lot of hypotheticals regarding an investigation that the defense might have done with regard to Asia and the library alibi. According to precedent from across the country, however, such possible investigation would be insufficient without an interview of Asia. As you note, it’s possible that Judge Welch could find Asia lacking in credibility and conclude that someone from the defense team did contact Asia. If that’s the case, he will not find ineffective assistance. Conversely, if he does find Asia credible and concludes that she was not contacted, my prediction remains that he will grant Adnan a new trial. The State cited no case where a court has found investigation of an alibi witness short of contacting her is sufficient, and I also haven’t seen anyone else point to such a case.
Streetwriter: Judge Welch is reviewing the PCR testimony, the exhibits, the briefs, the trial record, and pertinent precedent. With regard to the alibi/IAC claim, he basically has to answer three questions: (1) Was Asia contacted; (2) If not, was the failure to contact her reasonable; and (3) if not, was the error harmless? If Judge Welch answers all 3 questions in the negative, Adnan gets a new trial.
With regard to (2), we know that Judge Welch initially rejected Adnan’s IAC claim for 2/3 reasons: First, Asia’s alibi conflicted with Adnan’s alibi of school-track-mosque. Second, Asia’s letters failed to clearly indicate that she was potentially an alibi witness. Third, Asia’s letters could have been construed as an offer to lie.
On the first point, Judge Welch now has (1) Krista’s affidavit that the library was considered part of the school campus; (2) Asia’s testimony that the library was considered part of the school campus; (3) Justin Brown pointing out that there is no documentary evidence that Adnan said back in 1999/2000 that he remained on the school campus until track practice; and (4) an exhibit
https://www.coreworkflow.com/files/exzvd4lt (slides 18-21)
showing that the library was part of the school campus.
On the second point, Judge Welch now has notes in Gutierrez’ own handwriting showing that she knew that the Asia/Adnan encounter at the library was before track practice:
https://www.coreworkflow.com/files/exzvd4lt (exhibit 3; Judge Welch previously only had the clerk’s notes.
On the third point, Judge Welch now has Asia’s testimony. If he finds her lacking in credibility, it’s pretty much game over for the defense. Conversely, if he finds Asia to be credible, it’s pretty much game over for the prosecution.
Posted by: Colin Miller | Jun 8, 2016 6:55:47 AM
Thank you for the detailed response. It just seems to me that a finding with regard to Asia's credibility would be something that might happen more instinctively rather than through research or lengthy deliberation, and that if so much hinges on that decision we might have a ruling sooner rather than later. But clearly there is more to it.
Posted by: Jeffrey Street | Jun 8, 2016 7:44:43 AM
Jeffrey Street: Agreed. Judge Welch could easily have issued a quick decision denying Adnan relief. All he would have needed to do was conclude that Asia was lacking in credibility and from that conclude that failure to contact her did not cause prejudice regardless of whether the failure to contact was unreasonable. To do so, he would merely need to cite to Strickland. The same goes for the cell tower claim. Judge Welch could have quickly concluded that Agent Fitzgerald’s take on the cover sheet was the correct one, meaning that any issues with the State’s disclosures did not cause prejudice. To do so, he would merely need to cite to Brady. Both of these decisions would be pretty much immune-proof because it is Judge Welch judging live testimony.
Now, that’s not to say that a decision denying relief had to be issued quickly. But I think that the passage of time makes it less likely that Judge Welch’s opinion is premised upon these types of credibility determinations.
Posted by: Colin Miller | Jun 8, 2016 7:57:30 AM
“Thiru posed a lot of hypotheticals regarding an investigation that the defense might have done with regard to Asia and the library alibi.”
It was not a hypothetical. Thiru proved that the library alibi was investigated via the PI’s billing statement. If Thiru was incorrect about this, then Brown could have called Colbert and Flohr to rebut the assertion. He didn’t, so obviously Thiru’s interpretation of the billing statement was correct.
“Conversely, if he finds Asia to be credible, it’s pretty much game over for the prosecution.”
Well, no. What matters is what Gutierrez knew in 1999-2000. Welch originally ruled that “trial counsel could have reasonably concluded that Ms. McClain was offering to lie in order to help Petitioner avoid conviction.” Asia’s testimony in 2016 doesn’t change the fact that in 1999, she wrote a highly suspicious letter offering to account for some period between 2:15-8:00 (but only if she thought Adnan was innocent). If anything, Welch’s point here is bolstered by the evidence that the second letter was written later and then backdated – something Gutierrez would have caught immediately due to the anachronistic information.
On top of that, Welch wrote that “Strategic choices made after thorough investigation are ‘virtually unchallengeable.’” Given that he now has proof that the library alibi was investigated, Asia’s testimony is essentially irrelevant to the outcome.
Posted by: Seamus_Duncan | Jun 8, 2016 9:51:03 AM
Seamus: (1) Thiru established that Drew Davis billed for talking to Coach Sye and Officer Steve. That’s all we know conclusively. Davis could have talked to Steve about Adnan being at the library on January 13th, or he could have talked to Davis about whether there were external security cameras that could have captured Hae’s car leaving Woodlawn. Officer Steve himself testified at the reopened PCR proceedings that he did not recall his conversation with Davis.
(2) Even if Davis’s conversation with Officer Steve was in connection with the library alibi, it would be insufficient to discharge Gutierrez’s obligations under Strickland. I’ve cited to several cases where the defense team contacted some witnesses regarding an alibi but failed to contact other witnesses regarding that same alibi. The result is still ineffective assistance. For instance, in this case from earlier this year:
the defendant’s alibi was that he was playing video games at J & J Fish at the time of the crime. The defense called two alibi witnesses from J & J Fish and made reasonable attempts to contact to other witnesses from J & J Fish. But the defense’s failure to attempt to contact a fifth alibi witness from J & J Fish was deemed unreasonable.
(3) My conclusion is that Gutierrez couldn’t have dismissed Asia as a prospective alibi witness without someone from the defense team speaking to her. That is the minimum requirement in the case cited in this post and other cases, including cases originating in Maryland. This includes cases in which (1) the alibi witness was picked out a photo array by one of the victims as a perpetrator; (2) defense counsel had the sketchy police statements of the alibi witness; (3) the initial story of the defendant didn’t match the alibi story; and (4) there was evidence that the defendant was trying to procure a false alibi.
These cases are a pretty strong indicating that there’s a duty to interview a prospective alibi witness, even if there are strong reasons to doubt the veracity of that witness. And, if there’s not a duty, why has no one, including Thiru, been able to find a single case in which a court has found that an attorney acted reasonably by investigating but not contacting a prospective alibi witness?
Posted by: Colin Miller | Jun 8, 2016 10:20:57 AM
“Thiru established that Drew Davis billed for talking to Coach Sye and Officer Steve. That’s all we know conclusively.”
We know that Davis visited Sye to discuss Adnan’s track alibi. We know that, per your examination of the defense file, someone apparently removed or destroyed Davis’ report on this portion of his investigation. Brown refused to put Davis on the stand in 2012. Judge Welch will be able to put two and two together. Strickland calls for “a heavy measure of deference to counsel's judgments” and “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Brown can’t overcome that without someone from the defense explaining what happened.
“My conclusion is that Gutierrez couldn’t have dismissed Asia as a prospective alibi witness without someone from the defense team speaking to her.”
So in your opinion, even if Davis reviewed the security footage and the sign-in sheets from the library and determined that Adnan was not there on January 13, this issue would still be an automatic get out of jail free card for Adnan?
Posted by: Seamus_Duncan | Jun 8, 2016 12:04:24 PM
Seamus: (1) There are tons of important documents missing from Gutierrez’s file for Adnan’s case and several documents from other cases that are in Gutierrez’s file for Adnan’s case. It would be pretty difficult to ascribe any rhyme or reason to the absence of a document from the file.
(2) There is no requirement that someone from the defense testify at a PCR proceeding for the court to find ineffective assistance. I’ve written about a few cases where courts have granted relief without such testimony. See, e.g.,
Indeed, there is a case where this almost happened with Gutierrez. I discussed the Leon Green case on the podcast. At the time of PCR, Gutierrez was too ill to testify about why she didn’t contact two alibi witnesses. Despite Gutierrez not testifying, the court found her unreasonable for failing to contact them, but the court ultimately found no prejudice.
(3) We know that any security footage would have been taped over before Adnan was arrested. I would also say that sign-in sheets would not obviate the need for contacting Asia. I might conceive of some factual scenario where there would be no need to contact a prospective alibi witness, but there’s definitely not enough evidence to reach such a conclusion here. And, again, there does not seem to be a case where a judge has reached such a conclusion. You would think that if investigation without contact can suffice under Strickland that there would be at least one case where such conduct was found reasonable.
Posted by: Colin Miller | Jun 8, 2016 2:01:52 PM
“You would think that if investigation without contact can suffice under Strickland that there would be at least one case where such conduct was found reasonable.”
I would hope that most attorneys would be too honest to present a case where the record clearly shows an alibi was investigated and the only evidence to the contrary is financially motived testimony and blatant perjury from the convict.
Worth noting that per Strickland, “[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Judge Welch ruled that Gutierrez could reasonably have concluded Asia was offering to lie. And that was before the prosecution presented evidence of the backdated “March 2” letter and contact between Adnan and Asia. It was before the prosecution presented evidence that the PI investigated the library alibi. It was before Asia asked the judge if she could write a book, making it clear she planned to monetize her testimony. So I’m sort of at a loss to understand why you think Welch would change his opinion as a result of Asia giving inconsistent testimony about snow/no snow on January 13.
And all of this is apart from the prejudice prong, which has a zero percent chance of being satisfied based on a witness offering to cover a few minutes during a time period when the victim was likely still alive. Beyond that, the prosecution knew Adnan solicited a letter from Asia and could have easily impeached her testimony.
Posted by: Seamus_Duncan | Jun 8, 2016 4:26:48 PM
Seamus: (1) It’s entirely possible that Drew Davis spoke with Officer Steve without anyone from the defense ever contacting Asia. It’s just like Davis speaking to Coach Sye without anyone from the defense every contacting track teammate Will.
(2) You quote Strickland for the proposition that “[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Courts in several of the cases I’ve cited on the blog have quoted this language before concluding that trial counsel was ineffective for failing to contact an alibi witness. For instance, the Seventh Circuit cited it in Montgomery v. Petersen (cited with approval in Parris W. and Griffin) before concluding that defense counsel was ineffective for failing to contact a 13th alibi witness despite contacting 12 other alibi witnesses.
(3) I’m not reaching any determination about what Judge Welch will conclude concerning Asia’s credibility. I wasn’t in the courtroom for Asia’s PCR testimony, and I haven’t seen a transcript of that testimony. My conclusion is that Judge Welch will grant a new trial if he finds Asia credible. I don’t have enough information at this point to assess whether he will do so.
Posted by: Colin Miller | Jun 8, 2016 6:44:05 PM
Colin:
Under Strickland's what is the standard for credibility? Does the judge have to find beyond a reasonable doubt she is credible or only that it is probable a jury might find her testimony credible?
I ask because if the judge thought she couldn't get over a reasonable doubt threshold the first time around it's not likely that little bit more data will change his mind; on the other hand he might be much more likely to change his mind than if he only thought that it probable she was unbelievable.
Posted by: Daniel | Jun 8, 2016 8:09:05 PM
Dan: He only has to find that it is probable a jury might find her testimony credible.
Posted by: Colin Miller | Jun 9, 2016 4:45:01 AM
Seamus: This isnt reddit. Any chance you could take your obsession with the PI there? You ruin every single post with this same crap, which is refuted every time.
Posted by: Beth | Jun 10, 2016 6:43:44 PM
Does Seamus realize that his objections are silly to the point of straining credibility? Or does she think that she's bringing up show-stopping conundrums that the defense has no answer to?
I mean, everyone reading the exchange recognizes the desperate mental gymnastics routine being used to leave plausible hope that her original position isn't dead wrong--but does she realize it? I honestly don't know.
Posted by: Paul | Jun 13, 2016 5:17:37 PM
It strikes me that they key difference between this case and the Syed case is:
>Burdine did not testify that such efforts would have been fruitless, nor did he claim that the decision not to investigate was part of a calculated trial strategy. He simply failed to make the effort to investigate.
Thus the defense in this case actually did establish that Burdine made an error. In contrast, Brown failed to call any of the members of Syed’s defense team, and thus failed to establish that McClain wasn’t contacted, let alone that her story wasn’t INVESTIGATED. In fact, the prosecution produced documentation from the PI indicating that the library alibi WAS investigated. Brown has no chance of overcoming the deference given to trial counsel with just one witness who claims to suffer from “functional amnesia” and informed the judge that she planned to try to profit financially from her testimony.
Posted by: Seamus_Duncan | Jun 7, 2016 1:43:14 PM