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.

-CM