EvidenceProf Blog

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

Monday, April 2, 2018

Does Judge Graeff's Test in Her Adnan Syed Dissent Ever Allow a Defendant to Prove IAC Against a Deceased Attorney?

In her dissenting opinion in the Adnan Syed case, Judge Graeff notes the following:

Here,...there was no testimony by trial counsel regarding why she did not contact Ms. McClain. Although this was because counsel was deceased at the time the post-conviction hearing occurred, this did not relieve Syed of his duty to satisfy the Strickland test....

The absence of testimony by trial counsel makes it difficult for Syed to meet his burden of showing deficient performance. As the court stated in Broadnax..., it is “extremely difficult” for a petitioner "to prove a claim of ineffective assistance of counsel without questioning counsel about the specific claim, especially when the claim is based on specific actions, or inactions, of counsel that occurred outside the record." Similarly, in Williams v. Head,...the court stated that, "where the record is incomplete or unclear about [counsel’s] actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment," noting that the "district court correctly refused to 'turn that presumption on its head by giving Williams the benefit of the doubt when it is unclear what [counsel] did or did not do.'"...

To be sure, there could be circumstances where the record is sufficient for the defendant to overcome the presumption that counsel acted reasonably, without questioning trial counsel. This case, however, does not present such circumstances. Syed has pointed to no evidence in the record indicating that trial counsel’s decision not to interview Ms. McClain was based on anything other than reasonable trial strategy, relying instead on his blanket assertion that it is unreasonable in every case for trial counsel to fail to contact a potential alibi witness identified by the defense.

Although possible reasons for counsel's decision have been discussed, we do not know if these were the reasons that counsel decided not to contact Ms. McClain (emphasis added).

As noted, Judge Graeff concluded that "there could be circumstances where the record is sufficient for the defendant to overcome the presumption that counsel acted reasonably, without questioning trial counsel." My question in this post is: What would those circumstances be? 

Let's start by reviewing the facts in the Adnan Syed case:

1. There are two notes in the defense files tending to indicate that Asia McClain and her boyfriend saw Adnan in the library adjacent to Woodlawn High School on the day Hae disappeared. The times associated with this event are 3:00 P.M. and 2:15-3:15 P.M.;

2. Asia was not a relative of Adnan Syed and didn't have a criminal record;

3. Asia was not believed to be connected to the murder of Hae Min Lee;

4. A mistrial was declared at Adnan's first trial after the State had laid out its timeline, meaning that the defense knew that the State would be arguing at trial #2 that Adnan had killed Hae at the Best Buy about a mile from Woodlawn Hugh School and made a call to Jay Wilds from a cell phone at the Best Buy at 2:36 P.M.;

5. Asia signed an affidavit the year after the trial indicating that she had seen Adnan at the library between 2:20-2:40 P.M. on the day that Hae disappeared; and

6. Asia offered testimony at the reopened PCR proceeding about (1) seeing Adnan in the library on the day disappeared; and (2) not being contacted by the defense team. Judge Welch found her testimony credible.

Nonetheless, according to Judge Graeff, this wasn't enough to prove that Cristina Gutierrez unreasonably failed to contact Asia because (1) Gutierrez was deceased and couldn't testify; and (2) there could be strategic reasons why Gutierrez didn't contact her.

So, what's the case Judge Graeff has in mind in which "there could be circumstances where the record is sufficient for the defendant to overcome the presumption that counsel acted reasonably, without questioning trial counsel"? Many of the cases Judge Graeff herself cites wouldn't seem to meet her standard.

It might be strategy not to contact an alibi witness who is a relative of a defendant because jury's tend to discount alibis by relatives due to their familial connections to defendants. Alibis by witnesses with criminal records can be problematic for obvious reasons, and alibis by people who might be involved in the crime at hand can be downright disastrous.

So, let's say take our best case scenario: An alibi witness who is not related to the defendant, has no criminal record, and is not a suspect in the crime at hand. Well, that witness is Asia McClain, and this leads to the seeming Catch-22 in Judge Graeff's dissent:

On the one hand, Judge Graeff notes that Asia's letters to Adnan didn't provide the precise time when she saw Adnan in the library, meaning that it's unclear whether she could be an alibi witness. On the other hand, Judge Graeff cites Weaver v. State, 114 P.3d 1039 (Mont. 2005), in which the Supreme Court of Montana found that trial counsel didn't have to contact possible witnesses when she already knew the gist of what those witnesses would say. She then concludes that "[t]he record here reflects that, as in Weaver, trial counsel knew the gist of Ms. McClain’s alibi," which might have been the reason she didn't contact her.

But, of course, that's a Catch-22 in the case of a deceased attorney. If the record shows that trial counsel had information indicating that a witness was a clear alibi witness (e.g., information that the witness saw the defendant at the precise time the crime was being committed), Judge Graeff's test would seem to say the defendant has failed to prove ineffective assistance of counsel because trial counsel already knew the gist of what that witness would say and didn't need to contact her. Conversely, if the record shows that trial counsel had information indicating that a witness merely might be an alibi witness (e.g., information that the witness saw the defendant at some point on the day of the crime), Judge Graeff's test would seem to say the defendant has failed to prove ineffective assistance of counsel because trial counsel might have thought this witness wouldn't be an alibi witness.

In other words, in any case with a deceased attorney, you could conjure up a possible strategic reason why defense counsel wouldn't have contacted a prospective alibi witness. Therefore, I don't see how Judge Graeff's test ever allows for a defendant to win on a claim of ineffective assistance of counsel based on his (now) deceased attorney's failure to contact an alibi witness. I would therefore say that this is an unfair and unworkable test, but I welcome comments by anyone with a hypothetical case that would satisfy the test.*


*I don't think a case in which the attorney gave testimony or a statement before she died indicating that the failure to contact was an erroneous admission would count. I'm looking for a case in which there is no such testimony or statement by the attorney before she died, i.e., a case where we're relying on something other than the attorney's own words to establish that the failure to contact was non-strategic.  



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In addition, Graeff seems to be applying the wrong test - she's jumping to evaluation of '[S]trategic choices made after thorough investigation of law and facts' when we're still at the 'reasonable decision not to investigate' stage, which comes with a 'heavy measure of deference to counsel's judgment,' but without the 'virtually unchallengeable' strategic decision test for trial decisions under Strickland. (Thanks to Unblissed for helping me understand this).

Posted by: Cupcake | Apr 2, 2018 7:31:21 AM

I can only think of one hypothetical situation, where the attorney wrote a contemporaneous note stating “I am aware of this potential alibi witness but am freely choosing to ignore it because I am a deficient counsel”

Though probably without a notary public verifying the notes timestamp, the defense still would fall short in the eyes of Judge Graeff

Posted by: Paul | Apr 2, 2018 9:21:41 AM

Cupcake: Yeah, it seems to be putting the cart before the horse.

Paul: Yeah, that's about the only set of facts that I really see meeting the test.

Posted by: Colin Miller | Apr 3, 2018 8:39:22 AM

It seems to me that Judge Graeff is *really* reaching hard to try to justify a dissenting opinion in this case. It makes me wonder why she’s so intent on it when she’s got to do all the same things the “guilters” have to do to believe Adnan is guilty—ignore mountains of clear and obvious evidence and then twist and torture whatever’s left and pull assumptions out of thin air to make a convincing “argument”. What would possess a judge to do that? I’d say political aspirations, but writing opinions that aren’t even justified by her own arguments doesn’t seem to be the way to do that. Any thoughts on that?

Posted by: Eric Wolff | Apr 3, 2018 9:23:46 AM

I find this post's review of "the facts" a bit disingenuous. On p. 13 of the dissent, Judge Graeff clearly lays out that trial counsel prepared an alibi defense that was based on Adnan's own claims and obviously not consistent with the library alibi (Adnan maintained that he remained at school up until the time he went to track practice, and then went to track practice). It's this fact that gives us a window into the dead counsel's trial strategy and likely reason for not pursuing McClain -- her "alibi" didn't match up with Adnan's own story and with the alibi theory they felt was stronger. This is a pretty important "fact" that supports the dissent.

Posted by: Joshua | Apr 3, 2018 12:53:07 PM

Doesn’t an alibi defense require a witness or preferably multiple witnesses Joshua? Where did Christina Gutierrez do that at trial? In fact the one witness she could have elicited an alibi from in that scenario, Debbi, she failed to actually ask about Adnan’s presence at school.

And all this of course ignores the fact that the public library WAS de facto part of the Woodlawn campus, something testified to by multiple people at the PCR hearing.

Posted by: Paul | Apr 3, 2018 3:39:39 PM

All that to say... theactuallydisingenuouspersonsayswhat?

Posted by: Paul | Apr 3, 2018 3:41:07 PM

Even if trial counsel had a strategy of following the timeline Adnan originally gave - any attorney worth the paper their degree is printed on would follow up with a potential witness. Preparing a full defense based on their timeline would run the risk of the State bringing forward this witness contradicting their timeline - it goes from being an alibi to being a smoking gun.

Posted by: Laura | Apr 3, 2018 5:12:07 PM

How’s this for a hypo:

It's clear from Attorney's notes that she wants Investigator to interview Dickinson. But Investigator's memo reflects an interview with Dickerson. The content of the report and the manner in which it's written are such that if Attorney doesn't catch that the memo's subject line refers to "John Dickerson" rather than "John Dickinson," she won't necessarily realize Investigator spoke to the wrong witness.

Nothing in the file indicates that Attorney realized the error or suggests a reason Attorney might have subsequently decided not to pursue the alibi.

Posted by: Ryan | Apr 4, 2018 11:39:33 AM

Ryan that hypo might be closer to reality than you think. I have long wondered about the typo Gutierrez made in an unrelated note when describing Aisha (as in Aisha Pittman) with the name incorrectly written as Asia. Makes me wonder if she thought Asia McClain and Aisha Pittman were the same person. Still wouldn’t explain telling your client that “i contacted her and the dates didn’t work out” but it makes your hypothetical especially relevant. Colin?

Posted by: Paul | Apr 4, 2018 6:28:44 PM

This is in response to all the people that keep repeating that Asia contradicted Adnan’s alibi or that Adnan could not remember or did not give a specific alibi. This is completely false and does not reflect the actual record of the case. This only comes from the opening of Serial. Serial got it wrong but planted this seed that has grown and refuses to die. The record clearly shows Adnan repeatedly said he was in the library with Asia. He told Gutierrez, he told Gutierrez’s law clerk and he followed up with Gutierrez at least twice that we know of. The first time she out right lied to him and the second she actually admitted she did not contact Asia. The opening of Serial was a masterful piece of framing a story in an engaging way, “How many of us can remember exactly what we were doing on a random afternoon weeks ago?” It got everyone hooked, it instantly created a sense of connection. It was also complete BS. Adnan knew he was in the library with Asia, he told his attorney, he gave her all the contact information, he followed up with his attorney and his attorney did nothing, then his attorney lied to him. It’s all in the record.

Posted by: Jeff P | Apr 5, 2018 8:32:19 AM

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