My 2nd Take on the State's Brief of Appellant in the Adnan Syed Case

Following up on yesterday's post, the second case cited by the State in its Brief of Appellant in the Adnan Syed case in the ineffective assistance/cell tower claim was Henry v. State, 772 S.E.2d 678 (Ga. 2015). Let's start with the obvious: This is a Georgia state case, so it is persuasive precedent, which the Court of Special Appeals of Maryland could apply or ignore. So, why did the State cite the Henry case? 

Here's the pertinent portion of the State's brief:

Judge Welch found that Cristina Gutierrez was ineffective in failing to cross-examine the State's cell tower expert with the AT&T disclaimer, and the State is clearly claiming that decisions regarding cross-examination are strongly presumed to be reasonable.

Henry is one of fourteen cases in which courts have used this language indicating that "decisions about what questions to ask on cross-examination are quintessential trial strategy." In all fourteen cases, the court using this language was the Court of Appeals of Georgia or the Supreme Court of Georgia. No court outside of Georgia has cited this language.

More importantly, each of these fourteen cases concerned trial counsel's decisions regarding cross-examination of a lay witness as opposed to an expert witness. For instance, Henry was a murder case in which Brandon Henry allegedly fatally shot John Golden. After he was convicted, Henry claimed that he received ineffective assistance of counsel because his attorney failed to cross-examine two witnesses for the prosecution about their family relationships with Golden. The Supreme Court of Georgia disagreed, crediting defense counsel's claim, inter alia, that the didn't think the jury would find this information relevant to the witness' credibility. In other words, it was a judgment call.

By way of contrast, it seems as if Georgia courts are much more concerned with attorneys failing to cross-examine expert witnesses at trial and much more readily find ineffective assistance in this context. Here are but a few examples:

1. In Ottley v. State, 752 S.E.2d 92 (Ga.App. 2013), Winfred Ottley was charged with various sex crimes, and the Court of Appeals of Georgia found ineffective assistance in large part because

Ottley's trial counsel failed to test the medical witnesses' testimony at trial in any way. He did not cross-examine Cooley at all and asked Dr. Mansfield only two questions simply to ascertain whether the victim's hymen was intact.

2. In Goldstein v. State, 640 S.E.2d 599 (Ga.App. 2007), Gary Goldstein was charged with child molestation and sexual battery, and the Court of Appeals of Georgia found ineffective assistance because trial counsel presented no expert witnesses and merely weakly cross-examined the State's experts.

3. In Darst v. State, 746 S.E.2d 865 (Ga.App. 2013), Roger Darst was charged with aggravated child molestation, and the Court of Appeals of Georgia found ineffective assistance because the State's expert presented key testimony against the defendant, and "Darst's trial counsel failed to address any of these issues in his cursory cross-examination of the forensic examiner."  

It makes sense that all three of these cases involved sex crimes because expert testimony is often the key to these cases. Of course, in the Adnan Syed case, Judge Welch similarly found that the "Leakin Park pings" were part of the "crux" of the State's case against Adnan. And, in such cases, it becomes incumbent upon defense counsel to conduct an effective cross-examination of the State's expert.

But the Court of Special Appeals of Maryland doesn't need to go all the way to Georgia to reach this conclusion. As I've noted before, there's a case out of the Fourth Circuit (the federal judicial circuit that covers Maryland) reaching the same conclusion: Elmore v. Ozmint, 661 F.3d 783 (4th Cir. 2011) 

In Elmore, the Fourth Circuit noted that, in some cases, failure to full cross-examine and challenge the State's expert witnesses and testimony might be reasonable, but that, in the case before it,

forensic evidence was always and obviously vital to the State's case, which otherwise relied on James Gilliam's account of Elmore's spontaneous jailhouse confession and Elmore's guilty demeanor and lack of a corroborated alibi for Saturday night. As such, the defense did not risk “making a central issue out of [the forensic] evidence,” because the State was already certain to do so....Rather, the circumstances necessitated that the defense work to engender doubt about the forensic evidence. Elmore's lawyers attempted as much in their cross-examinations of the State's witnesses, but, because the lawyers had twice squandered opportunities to investigate the forensic evidence (prior to the 1982 and 1984 trials), they were unarmed for the battle.

In other words, when the State presents important expert testimony that is vital to the State's case, defense counsel is ineffective when he fails to properly cross-examine and challenge it.

-CM