Thursday, May 17, 2018
In a comment on yesterday's post, Jayne asked "Do you see similarities with the Michael Skakel case? Both involve failure to contact an alibi." Jayne is referring to the recent opinion of the Supreme Court of Connecticut in Skakel v. Commissioner of Correction, 2018 WL 2104577 (Ct. 2018). Having now looked at this case (which cites the Court of Special Appeals's opinion in the Adnan Syed case three times), I can now say that this is a very important opinion for Adnan's case.
Skakel is a nephew of Ethel Skakel Kennedy, the widow of Senator Robert F. Kennedy. In 2002, he was convicted of the October 30, 1975 murder of Martha Moxley, who was last seen spending time at the home of the Skakel family, across the street from her home in Belle Haven. Both Skakel and Moxley were 15 years old at the time. Skakel's cousin, Georgeann Dowdle, testified before the grand jury in the case "that she was at home with her young daughter and her 'beau' on the night of the murder and heard her brother and Skakel cousins talking, but, given the passage of so much time, she could not recall whether she actually saw them."
Dowdle later gave similar testimony at trial, providing a partial alibi for Skakel. But, despite Dowdle's testimony about her "beau" being present, defense counsel never sought to contact him to bolster this alibi defense. After Skakel was convicted, he appealed, claiming that this was ineffective assistance of counsel. This claim was bolstered by the fact that the beau, Dennis Ossorio, was later tracked down and
testified that he was at the Terrien home on the evening of October 30, 1975, visiting Dowdle, with whom he had a personal relationship. According to Ossorio, the petitioner and two of his brothers were also there that evening, watching television with [Skakel's cousin James] Terrien, and he joined them in the television room periodically when Dowdle was otherwise occupied with her daughter. Ossorio recalled leaving the Terrien residence at about midnight and was not sure whether the Skakels had left before him. Ossorio further stated that he was living in Greenwich at the time of the petitioner's criminal trial and would have been available to testify, but no one from Sherman's office or the office of the state's attorney ever contacted him.
Under the "deficient performance" prong of the ineffective assistance of counsel test, Connecticut's highest court concluded that, inter alia,
it could hardly have been easier for Sherman to have ascertained that Ossorio had critical alibi testimony to offer, such that even the most rudimentary of inquiries would have led Sherman directly and immediately to Ossorio....Upon reading Dowdle's grand jury testimony and learning that her beau was with her at the Terrien residence on the evening of October 30, 1975, all Sherman had to do was pick up the telephone and ask Dowdle—one of the petitioner's own alibi witnesses—to identify her beau. And, then, after learning that her beau was Ossorio, it would have been easy for Sherman to locate and speak to him—indeed, a look in the telephone listings and another telephone call would have sufficed—because he lived just a few miles from Sherman's office. As in all criminal cases that involve the issue of defense counsel's failure to interview a potential witness to ascertain what he or she has to say, counsel has no absolute obligation “to actually track down” the witness, “only that he put in a reasonable effort to do so.”...In the present case, the most elementary and obvious of inquiries by Sherman or his investigator would have revealed that Ossorio was a critical alibi witness, and Sherman's unwillingness to take even those modest steps unreasonably deprived the petitioner of Ossorio's crucial trial testimony.
You could basically map this reasoning right onto the Adnan Syed case, except for the fact that it was even easier for Cristina Gutierrez to contact Asia McClain given that she had her name and phone number. And, indeed, as support for its conclusion, the Supreme Court of Connecticut cited to several of the same cases cited by the Court of Special Appeals in the Adnan Syed case, including Montgomery v. Petersen, which I discussed yesterday.
In terms of the "prejudice" prong, the court also cited to several of these opinions as the well as the recent Court of Special Appeals opinion in the Adnan Syed case. The most pertinent citation was as part of one of the most beautiful string cites I've ever seen in a court opinion. I spent several months researching cases across the country for this blog and didn't find a single case in which a court rejected an ineffective assistance of counsel claim based on failure to contact an alibi witness under the "prejudice" prong. In oral arguments before the Court of Special Appeals, Adnan's attorney Justin Brown made the same argument. In its Skakel opinion, Connecticut's highest court found the same thing:
Before addressing the nature and strength of the evidence adduced by the state at the petitioner’s criminal trial, it bears emphasis that our research has not revealed a single case, and the respondent has cited none, in which the failure to present the testimony of a credible, noncumulative, independent alibi witness was determined not to have prejudiced a petitioner under Strickland’s second prong. There are many cases, however, in which counsel’s failure to present the testimony of even a questionable or cumulative alibi witness was deemed prejudicial in view of the critical importance of an alibi defense. See, e.g., Caldwell v. Lewis, 414 Fed. Appx. 809, 818 (6th Cir. 2011) (‘‘[The] [c]ourt has recognized that when trial counsel fails to present an alibi witness, [t]he difference between the case that was and the case that should have been is undeniable. . . . [The] [c]ourt has held that the failure to produce an alibi witness at trial was prejudicial under Strickland, even [when] the . . . [habeas] court said [that] the alibi witnesses would have been unconvincing, and there were other alibi witnesses presented at trial.’’ [Citation omitted; internal quotation marks omitted.]); Brown v. Myers, 137 F.3d 1154, 1155–56, 1157–58 (9th Cir. 1998) (petitioner suffered prejudice from counsel’s failure to present alibi witnesses even though their testimony ‘‘was vague with regard to time,’’ and three eyewitnesses identified petitioner as shooter); see also Davis v. Lafler, 658 F.3d 525, 541 (6th Cir. 2011) (‘‘[the] court has repeatedly found prejudice resulting from trial counsel failing to investigate or present favorable witnesses’’), cert. denied, 566 U.S. 947, 132 S. Ct. 1927, 182 L. Ed. 2d 788 (2012); Bigelow v. Haviland, supra, 576 F.3d 291 (when case turned on credibility of state’s witnesses, failure to produce alibi witness was prejudicial); Avery v. Prelesnik, supra, 548 F.3d 439 (‘‘[The] potential alibi witnesses coupled with an otherwise weak case renders the failure to investigate the testimony sufficient to undermine confidence in the outcome of the jury verdict. . . . [T]he jury was deprived of the right to hear testimony that could have supplied . . . reasonable doubt.’’ [Internal quotation marks omitted.]); Harrison v. Quarterman, 496 F.3d 419, 427 (5th Cir. 2007) (‘‘[o]ur sister circuits have held that counsel prejudices his client’s defense when [he] fails to call a witness who is central to establishing the defense’s [theory of the case]’’); Raygoza v. Hulick, supra, 474 F.3d 960, 964–65 (petitioner was prejudiced by counsel’s failure to present independent alibi witness who would have corroborated testimony of petitioner’s girlfriend that petitioner was thirty-five miles from crime scene at time of murder); Stewart v. Wolfenbarger, 468 F.3d 338, 359–61 (6th Cir. 2006) (petitioner prejudiced by counsel’s failure to call independent alibi witness to corroborate another alibi witness whose testimony was subject to impeachment); Alcala v. Woodford, 334 F.3d 862, 872–73 (9th Cir. 2003) (petitioner was prejudiced by counsel’s failure to investigate and corroborate petitioner’s alibi, insofar as prosecution’s evidence was ‘‘far from compelling’’ and eyewitness made ‘‘confident’’ but ‘‘not unimpeachable’’ identification of petitioner); Lindstadt v. Keane, 239 F.3d 191, 204–205 (2d Cir. 2001) (petitioner was prejudiced when trial counsel failed to present evidence that could have corroborated petitioner’s alibi claims); Montgomery v. Petersen, supra, 846 F.2d 415 (petitioner was prejudiced by counsel’s failure to call additional, disinterested alibi witnesses not subject to same impeachment as petitioner’s other alibi witnesses, all of whom were family members); Syed v. State, Docket Nos. 1396, 2519, 2018 WL 1530300, *3, *45–49 (Md. App. March 29, 2018) (when state’s case rested in part on testimony of witness who claimed to have helped petitioner dispose of victim’s body, petitioner was prejudiced by counsel’s failure to present testimony of independent alibi witness, inasmuch as ‘‘potential alibi witnesses coupled with an otherwise weak case render[ed] the failure to investigate the [alibi] testimony sufficient to undermine confidence in the outcome of the jury verdict’’ [internal quotation marks omitted]). The only cases to the contrary are ones in which the exculpatory evidence was found not to be credible, or, in addition to such a finding, there was conclusive physical evidence linking the petitioner to the crime. See, e.g., Moore v. New York, 357 Fed. Appx. 398, 401 (2d Cir. 2009) (undercover police officers observed petitioner committing crime); Hemstreet v. Greiner, 491 F.3d 84, 92 (2d Cir. 2007) (petitioner was not prejudiced by counsel’s failure to present additional alibi witness ‘‘of questionable veracity’’ when state’s case was based on ‘‘[o]verwhelming items of forensic evidence connect[ing] [the petitioner and his accomplice] to the murder . . . including [the victim’s] blood in [the petitioner’s] car’’), cert. denied sub nom. Hemstreet v. Ercole, 552 U.S. 1119, 128 S. Ct. 962, 169 L. Ed. 2d 763 (2008) (emphases added).
Given this exhaustive research by the Supreme Court of Connecticut, it's really hard to see the Court of Appeals of Maryland reversing in the Adnan Syed case on the "prejudice" prong.