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.*

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*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.  

-CM