EvidenceProf Blog

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

Saturday, May 20, 2017

The Disinterested Alibi Witness and the Adnan Syed Appeal

In its its Reply Brief of Appellee/Cross-Appellant in the Adnan Syed case, the defense makes an important point about Asia McClain that bears upon prejudice, i.e., whether Cristina Gutierrez's failure to contact/call her as an alibi witness undermines our confidence in the jury's verdict. According to the Reply Brief,

-regardless of the other evidence presented at trial, alibi testimony from a disinterested witness that would have placed Syed far from the victim at the time of the murder is sufficient to undermine confidence in the verdict;

-McClain was a disinterested witness whose testimony would have provided Syed with an alibi for the entire period when, according to the State, the murder took place; and

-the prosecution's argument that the evidence was so strong that an alibi witness wouldn't have mattered

requires the assumption that testimony from a credible and disinterested witness4 that Syed could not have committed the crime because he was with her when it supposedly occurred would not have been enough to sow any doubt with the jury.

So, what's the significance of Asia simply being Adnan's classmate and not a family member or close friend?

As Judge Welch noted in his opinion granting a new trial, the key ineffective assistance/alibi case in Maryland is In re Parris W., in which defense counsel actually did call the defendant's father as an alibi witness. Nonetheless, according to Judge Welch, "[t]he Maryland Court of Appeals held that counsel rendered deficient performance when she failed to issue subpoenas with the correct date for uninterested witnesses that could have corroborated the alibi defense, which ultimately prejudiced the juvenile's defense."

And, indeed, in Parris W., the Court of Appeals of Maryland cited to 

-Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988), in which "[t]welve...witnesses, all relatives or close friends of Montgomery, also testified to observing him in Springfield on the day of the robbery, including at his son's birthday party that evening. Montgomery's trial counsel failed, however, to call the single disinterested witness who could have placed him in Springfield on the day of the burglary-the store clerk who remembered selling a child's bicycle to the Montgomerys that afternoon."

-Grooms v. Solem,  923 F.2d 88, 90 (8th Cir. 1991), in which "[t]he testimony of [the two mechanics] at the state court's habeas corpus hearing established that they would have been available to testify if they had been called and that their testimony, if believed, would have supported Grooms' alibi defense. Thus, there is a reasonable probability that had these witnesses been called, the outcome of the trial ... would have been different, given the arguably plausible motivation [the informant] had to be less than a disinterested, objective witness against Grooms.

Other courts have reached similar conclusions. See, e.g., Commonwealth v. Carter, 2016 WL 1098847 (Pa. 2016) ("We do not necessarily agree with the trial court's characterization of the proposed testimony as merely cumulative, as the allegedly disinterested alibi witnesses identified by Carter may be qualitatively different from the alibi witnesses, namely his mother, sister and brother, that he actually presented at trial."); Bigelow v. Williams, 367 F.3d 562 (6th Cir. 2004) ("All three witnesses were completely disinterested, as none of them had any previous connection to Bigelow."); Covington v. Mills, 2005 WL 2204976 (M.D.Tenn. 2005) (citing Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir.1991) as a case where "counsel [was] ineffective for failing to call a disinterested alibi witness).

Will this same analysis take the day in Adnan's appeal? We'll see.



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Having a disinterested reliable witness makes all the difference in the outcome of any case, large or small. Please citizens, stop and give your name and number when you see an event.

Posted by: Linnette garber | May 21, 2017 11:08:11 AM

I still can’t get away from the fact that the State’s star witness (whom the jury believed overwhelmingly to convict Adnan in 2 hours) testified that the come and get me call happened at approximately 3.45pm and Jen testified that Jay left at around 3.30 – 3.45pm.

The jury knew that the state was only speculating as to the time of the come and get me call, that the state didn’t know exactly how the murder went down – they could only speculate on it.

Both Jay and Jen were remembering the times of the call and when Jay left many weeks after the actual incident. Remember Adnan doesn’t remember much from that day (he clearly doesn’t remember what happened between 6 – 8pm), so how can place so much weight on the time that Jay and Jen were remembering the call and when Jay left?

What is important is that Jay and Jen’s memory of the time is very similar. Maybe Jay received the call at 3:15pm and left around 3:20pm which isn’t far off what Jen was saying.

With the examples that you are giving, I wonder if there was conflicting evidence from a star witness as to the potential time of the murder? Was there a Jay type testimony in those scenarios’s which changed the time of the murder’s ?

The bottom line is the jury believed Jay and Jen and the state was only speculating as to what might have happened.

Posted by: ben | May 21, 2017 9:21:27 PM

Linnette garber: Agreed.

ben: (1) Jay testified that Adnan was supposed to call him at 3:45 (or 3:30?). Then, when 3:45 came and went, he drove to Jeff G.’s house, followed by Adnan calling him. So, it’s not as if Jay was just arbitrarily guessing about the time of the call. If we believe Jay, then, it’s pretty clear that the call came after 3:45. (2) I agree that Jay and Jenn having a similar memory about the time of the call is important, but maybe not for the same reason as you. It makes me believe that the two came up with the same story together, a story that was not true. (3) Judge Welch has concluded that there’s no way the State’s case works with a 3:15 “come and get me” call. I agree with his analysis. (4) I wouldn’t be surprised if there were additional conflicting timelines given by Jay. I can’t imagine that the State was too comfortable with Jay saying the “come and get me” call came more than an hour after 2:36, especially when there was no incoming call on Adnan’s cell phone at or around 3:45.

Posted by: Colin | May 22, 2017 4:25:59 AM

Regarding Ben's comment and Colin's response... this is a thing that has always bothered me about the case. The state is arguing as if the vagueness around the timeline evidence and Jay's known propensity to lie actually bolster its case. That just seems wrong. Jay would be easier to challenge if he had less of a known habit of lying? The state not knowing precisely the time of the murder (yet arguing that they did) somehw helps it prove its case? That, should it hold up, just seems reprehensible - it incentivies the state not to investigate any more than the bare minimum necessary to build a case.

Posted by: Michael | May 22, 2017 6:31:18 AM

Michael: Yes, I would argue that In re Parris W. supports the proposition that vagueness in the State's timeline helps the defense in an IAC/alibi appeal. We'll see how COSA rules.

Posted by: Colin | May 22, 2017 7:43:15 AM

@ Colin

‘Judge Welch has concluded that there’s no way the State’s case works with a 3:15 “come and get me” call. I agree with his analysis.’

I think COSA may disagree with Welch’s conclusion there. We’ll see.

Posted by: ben | May 22, 2017 10:04:09 PM

- lack of certainty or distinctness.
"Sue worries about the vagueness of the plans"
lack of preciseness in thought or communication.
"the vagueness of terms does nothing to aid understanding"

Dictionary definition;

for any court, to take away the liberty of a 17 year old, based on a vague timeline, or recollection of a in-credible witness, without any other evidence, is puzzling in itself.

Posted by: Lee Whitley | May 23, 2017 7:07:46 AM

ben: Given the number of events that Jay claims occurred between the "come and get me" call and the 3:21 P.M. call to Jenn, how do you suppose that COSA would overrule Judge Welch on this point?

Lee Whitley: Agreed. In some cases, a vague timeline might be okay. But in this case, in which the State placed so much importance on the times for the calls on Adnan's call logs, it shouldn't have been enough.

Posted by: Colin | May 23, 2017 11:14:25 AM

What about the girl who was the other wrestling score keeper/helper who says it couldn't have happened when they said it did because she was talking to her at school?

Posted by: Aninymous | May 23, 2017 11:38:29 AM

@aninymous I think that evidence came to light proving that was not the same day.

Posted by: Jeff | May 23, 2017 7:53:34 PM

Aninymous and Jeff: Yes, Summer was ostensibly remembering the day of the Randallstown wrestling match, which was on January 5th,

Posted by: Colin Miller | May 24, 2017 8:13:30 AM

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