EvidenceProf Blog

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

Friday, May 19, 2017

My First Take on the Defense's Reply Brief in the Adnan Syed Case

Today, the defense filed its Reply Brief of Appellee/Cross-Appellant in the Adnan Syed case. This is the last brief that will be filed before oral arguments in the Court of Special Appeals of Maryland on June 8th. In the Reply Brief, the defense repeatedly points to the lack of precedent cited by the State on the question of whether Cristina Gutierrez was ineffective based upon failure to contact prospective alibi witness Asia McClain. Specifically, the defense notes that the State only cited two cases on the prejudice prong of this issue, the prong that focuses on whether contacting and calling Asia as an alibi witness would have created the reasonable probability of a different outcome at trial: (1) Lockhart v. Fretwell, 506 U.S. 364 (1993) which dealt with trial counsel's failure to make an objection during a sentencing hearing; and Nix v. Whiteside, 475 U.S. 157 (1986), which dealt with trial counsel refusing to suborn perjury. The defense, of course, argues that Fretwell "has no bearing whatsoever on whether the failure to investigate an alibi witness is prejudicial." So, what about Whiteside?

In Whiteside, Emanuel Whiteside was charged with second-degree murder. Whiteside and two companions had gone to Calvin Love's apartment in Cedar Rapids, Iowa, seeking marijuana. According to Whiteside, during this visit, he believed that Love started pulling out a pistol from underneath a pillow on his bed, prompting Whiteside to fatally stab him

Until shortly before trial, Whiteside consistently stated to [his attorney Gary] Robinson that he had not actually seen a gun, but that he was  convinced that Love had a gun in his hand. About a week before trial, during preparation for direct examination, Whiteside for the first time told Robinson and his associate Donna Paulsen that he had seen something "metallic" in Love's hand. When asked about this, Whiteside responded:

"[I]n Howard Cook's case there was a gun. If I don't say I saw a gun, I'm dead."

Robinson told Whiteside that such testimony would be perjury and repeated that it was not necessary to prove that a gun was available but only that Whiteside reasonably believed that he was in danger.

Whiteside eventually testified at trial and "admitted that he had not actually seen a gun in Love's hand." After he was convicted, Whieside appealed, claiming that he had been deprived of a fair trial by Robinson's admonitions not to state that he saw a gun or "something metallic."

In rejecting Whiteside's claim of ineffective assistance of counsel, the Supreme Court noted that the American Bar Association standards provide guidance as to what constitutes reasonable professional conduct and cited one of these standards for the proposition that

"No client, corporate or individual, however powerful, nor any cause, civil or political, however important, is entitled to receive nor should any lawyer render any service or advice involving disloyalty to the law whose ministers we are, or disrespect of the judicial office, which we are bound to uphold, or corruption of any person or persons exercising a public office or private trust, or deception or betrayal of the public....He must...observe and advise his client to observe the statute law...."

Applying this standard, the Court concluded that Robinson's refusal to suborn perjury was reasonable. It then found as a matter of law that refusal to suborn perjury cannot be prejudicial as a matter of law.

The State would like for Whiteside to apply to Adnan's case, despite the fact that (1) Robinson spoke to Whiteside, who admitted that he planned to perjure himself, while Gutierrez never contacted Asia; and (2) Judge Welch concluded that Asia credibly testified that she saw Adnan in the library after school on January 13th.

So, have courts applied Whiteside in a case like Adnan's case or distinguished it? Let's take a look at the opinion of the Sixth Circuit in Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). In Blackburn, William Blackburn was convicted of an armed robbery in Michigan at about 10:00 A.M. on February 17, 1976. After he was convicted, Blackburn appealed, claiming that he received the ineffective assistance of counsel. Specifically,

Blackburn testified at the evidentiary hearing that he gave [his attorney Mr.] Girard names of three potential alibi witnesses: "Bill" the bartender at the Camelot Bar, Guy Reed, and William Campbell. He also told Girard that his mother would help with an alibi defense. Girard testified that he contacted Blackburn's mother, but that she was not able to provide names of potential witnesses. Girard stated that he made one short, unsuccessful trip to the Camelot Bar, but, feeling unsafe there, left shortly after he arrived with no new information. Girard testified that he did not recall the name of Reed or Campbell in connection with his investigation. However, Girard's file contained a letter from Blackburn dated May 31, 1977, setting forth Campbell's name and address. The file also contained a handwritten note on a letter dated November 2, 1977, stating: "Have Bill Campbell called...." We also note the fact that Campbell testified at Joe May's trial one year earlier. At the evidentiary hearing Campbell testified that he was walking his dog about 10:30 a.m. on the date of the robbery and saw Blackburn at that time

In finding this performance to be unreasonable, the court concluded that

Although Girard did make one trip to the Camelot Bar to investigate possible defenses, he for no apparent reason failed to investigate a known and potentially important alibi witness. Under Strickland "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."...Further, American Bar Association standards, which provide guidance as to what constitutes "reasonable" professional conduct, see Nix v. Whiteside, 475 U.S. 157...also mandate counsel's duty to investigate all leads relevant to the merits of the case. ABA Standard for Criminal Justice 4–4.1, 4.54–4.55 (1980). Viewing Girard's omission under the circumstances present at that time, and with deference to his professional judgment, we believe the failure to locate and question Campbell constituted ineffective representation outside the wide range of professionally competent assistance. Counsel did not make any attempt to investigate this known lead, nor did he even make a reasoned professional judgment that for some reason investigation was not necessary.

In other words, while the ABA Standards preclude defense counsel from suborning perjury, they also require defense counsel to investigate all leads relevant to the merits of the case. Therefore, while defense counsel cannot suborn perjury from a witness he has interviewed, he cannot avoid investigating an alibi witness. Therefore, Gutierrez, like Girard, acted unreasonably.

This takes us to the prejudice prong and another point in Adnan's Reply Brief of Appellee/Cross-Appellant. The State had claimed that the defense made a new "cumulative error" claim on appeal, asking the Court of Special Appeals to consider the combined prejudice of Gutierrez failing to contact Asia and failing to use the AT&T disclaimer. In its Reply Brief, the defense responds that it is not making an independent "cumulative error" claim; instead, it is arguing that Judge Welch "failed to apply the correct legal standard in evaluating the prejudice prong of his claim of ineffective assistance of counsel," which is consideration of  "the cumulative effect of all errors" by counsel.

Blackburn provides support for this claim. In Blackburn, Girard made two other error in addition to the alibi error. This led the court to conclude that

We cannot escape the conclusion that counsel's errors, in combination, effectively deprived Blackburn of a meaningful defense....Due to the combined errors of counsel, Blackburn was unable to subject the prosecution's case to "'the crucible of meaningful adversarial testing'—the essence of the right to effective assistance of counsel."...The errors rendered the adversarial process and resulting conviction unreliable.




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Is it realistically possible that COSA will decide on its own initiative -- or sua sponte, or however it should be phrased -- that the failure to get the limiting instruction given constitutes a free-standing additional error for the purposes of a cumulative-error analysis?

Posted by: pluscachange | May 19, 2017 11:56:06 AM


The limiting istruction issue sounds to me like a waived claim. Since it is based wholly on the trial record, it seems like it should have been raised on direct appeal. Then again, my law degree is wholly imaginary.

Posted by: Michael | May 19, 2017 3:49:11 PM

In this blog, there are a lot of cases cited where IAC has been found. My question is what happens, if anything, to an attorney once they are found to have provided the IAC?

Posted by: Jeff | May 19, 2017 4:09:07 PM

And to my idee fixe: I was a bit surprised that Syed’s team did not take an overt swipe at the prosecution’s summation argument that Jay and cell phone equals cumulative support for beyond a reasonable doub. Asia plus no cell phone sort of add up to cumulative prejudice, it seems to me with prosecution arguments at the end of trial. if there is such a thing? Or is this totally off any legal mark? I mean it is implicit in Syed’s various arguments: this layperson would just like to see the metaphorical mallet descending on TV’s head a few times driving obvious points home. I suppose that’s not a sign of a legal, much less judicial, temperament, however.

Posted by: Hal | May 19, 2017 4:14:18 PM

Michael brings up a good point: how did that failure get missed during Adnan'a direct appeal? Isn't that the kind of thing that's ripe for such an appeal?

I must assume that it was simply misssd--which brings up another question. Why are these things that clearly nobody was aware of until they get discovered, being considered "waived and knowing"? Seems more accurate to call it "should have noticed earlier" if we are calling a spade a spade.

Posted by: Paul | May 20, 2017 6:51:24 AM

And if failing to notice something earlier is in fact grounds for it to be off-limits to bring up in court, why don't we just call it that? The whole "knowing and waived" concept never seems to be about an issue that was actually known and waived.

Posted by: Paul | May 20, 2017 6:56:09 AM

It was the State that raised the issue of the limiting instruction that CG supposedly "won", so I don't see any waiver issue. Justin simply responded to the State's argument by pointing out the emperor had no clothes.

Posted by: FormerAgent | May 21, 2017 9:20:45 AM

Colin, I'm surprised that Justin made no reference to Wearry v Cain in his final brief, as it is a recent Supreme Court case that would seem directly on point to whether CG's failure to pursue the Asia alibi was prejudicial (her testimony would directly contradict the State's theory as to the time of the murder; the cell phone pings were, in theory, only supportive of the alleged burial). Any theory as to why? Preserving a future appeal, if needed?

Posted by: FormerAgent | May 21, 2017 9:32:38 AM

Actually, thinking about it more, I'm not sure that it could have been raised on direct appeal, because CG did not object to the lack of an instruction. Maybe it is still an issue for post conviction?

Posted by: Michael | May 21, 2017 1:56:49 PM

pluscachange: Anything is possible, but I think it’s likelier that COSA uses this fact in its IAC/cell tower ruling instead of considering it as a separate issue.

Michael: Yes, I think this needed to be raised on direct appeal.

Jeff: Usually nothing. Lawyers are very rarely disciplined.

Hal: I think the defense argued this in its first brief.

Paul: After a brief review of case law, it looks like it’s really tough to win on a freestanding IAC/limiting instruction claim.

FormerAgent: The defense is not precluded from arguing the issue, but it’s likely part of the current IAC/cell tower claim and not a separate issue. As for Wearry v. Cain, Justin raised it in his first brief, and the State didn’t address it. There are word limits on these briefs, and he presumably preferred to address the points that the State did attempt to rebut.

Michael: But it was clear from the record that she didn’t object, so it probably had to be raised on direct appeal.

Posted by: Colin | May 22, 2017 4:16:15 AM

Had she objected, they could not raise it on direct appeal? This is where the law gets too confusing for those of us who aren't lawyers.

Posted by: Michael | May 22, 2017 6:25:56 AM

Michael: If she objected, Adnan could have argued on direct appeal that the trial judge erred in not giving a limiting instruction.

Posted by: Colin | May 22, 2017 7:44:22 AM

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