Wednesday, May 16, 2018
"Indeed, if counsel had taken the few steps necessary to identify and interview the Sears clerk, he may well have formed a more favorable view of his client's veracity." Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988).
This single sentence might be the key to the Court of Appeals of Maryland denying certiorari to the State or affirming the opinion of the Court of Special Appeals of Maryland in the Adnan Syed case.
In deciding whether to grant certiorari, the Court of Appeals isn't just assessing whether the Court of Special Appeals got it wrong; the Court is also concerned with whether the Court of Special Appeals broke new ground with its opinion. You can see the State pushing both of these points in its petition for writ of certiorari. First, the petition notes that the Court of Special Appeals's
unprecedented holding was not based upon, as the majority opinion itself stated, any prior Maryland case: "Our research has revealed no Maryland case that has addressed directly the issue of a defense counsel’s failure to investigate a potential alibi witness in the context of an ineffective assistance of counsel claim." Opinion at 78.
Second, the petition (1) points out that the Court of Special Appeals cited to In Re Parris W. as the "closest Maryland case;" but then (2) argues that the federal cases cited in that opinion do not provide support for the Court of Special Appeals's opinion in the Adnan Syed case.
Factually speaking, the State is correct about two of these cases: Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), and Grooms v. Solem, 923 F.2d 88 (8th Cir. 1991). As the State's petition notes, (1) in Griffin, trial counsel didn't do any pre-trial investigation because he thought the defendant would plead guilty; and (2) in Grooms, there was no evidence that trial counsel "investigated and significantly developed a different alibi defense."
It's really the broad legal conclusions in these two cases that are helpful to Adnan. In Griffin, the Fourth Circuit (the federal judicial circuit covering Maryland) concluded that trial counsel
did not even talk to [the alibi witness], let alone make some strategic decision not to call him. Strickland and its progeny certainly teach indulgence of the on-the-spot decisions of defense attorneys. On the other hand, courts should not conjure up tactical decisions an attorney could have made, but plainly did not.
You can see the legal significance of this conclusion to Adnan's case: How could Cristina have made the strategic decision not to call Asia McClain when she didn't even talk to her?
And, in Solem, the Eighth Circuit held that
Once a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense.
Again, you can see the legal significance of this conclusion to Adnan's case: Once Adnan identified Asia McClain, it was unreasonable not to make some effort to contact her to ascertain whether her testimony would aid the defense.
The State, of course, tries to claim in its petition that these cases are circumscribed by their facts while the defense will try to claim that these cases announced generally applicable legal standards that cover the Adnan Syed case.
But then we have Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988), which I covered in more detail in this post. In Montgomery, Carl Montgomery was charged with burglaries committed in Moultrie County and Macon County, Illinois on September 9, 1983. Defense counsel in that case did investigate and present a substantial alibi defense, calling twelve alibi witnesses at trial.
Defense counsel, however, didn't contact or call a thirteenth alibi witness. Specifically, Montgomery gave his trial counsel a receipt was for the purchase of a bicycle at Sears on September 9, 1983. The receipt didn't list the sales clerk's name, but it did list his employee code. Montgomery's attorney would later say that his failure to contact this witness
was merely due to "inadvertence" on his part, as he was busy interviewing other potential witnesses. [His attorney] further stated:
"I was given just a receipt. I wasn't given a name so I didn't know who to interview until I found out who the witness was. But at that point, I simply didn't believe the defendant so I didn't think it happened."
Now, naturally, in its petition, the State tries to wave away Montgomery by claiming that it was a case of attorney inadvertence, which distinguishes it from Adnan's case, where Cristina Gutierrez might have had strategic reasons for not contacting Asia McClain. But a look at the Seventh Circuit's opinion reveals that the court also considered trial counsel's claim that he failed to investigate the alibi witness due to not believing his client:
Nor can we say that defense counsel's conclusory statement that he did not believe his client was an adequate basis for ignoring such an important lead. Indeed, if counsel had taken the few steps necessary to identify and interview the Sears clerk, he may well have formed a more favorable view of his client's veracity. There was nothing inherently suspect in the sales receipt. Whether the defendant had purchased a bicycle at Sears at a time when the state's witnesses placed him outside of Springfield was subject to independent verification.
This seems significant because, while we don't know exactly why Cristina Gutierrez's reason or lack of a reason for failing to contact Asia McClain, we do know the reasons hypothesized by the State and Judge Graeff in her dissenting opinion. And they all seem to fall in the same bucket as the rejected reason in Montgomery:
-Could Gutierrez have seen Asia's letters as an offer to lie? Maybe, but she may very well have formed a more favorable view of her as an alibi witness if she spoke with her;
-Could Gutierrez have thought Asia's letters weren't specific enough on timing to clearly constitute an alibi? Maybe, but she may very well have formed a more favorable view of her as an alibi witness if she spoke with her;
-Could Gutierrez have gotten all of the information she needed from Asia's alibi letters and simply thought that an alibi-by routine defense was preferable? Maybe, but she may very well have formed a more favorable view of her as an alibi witness if she spoke with her;
-Could Gutierrez have thought that Adnan and Asia were colluding on a fake alibi defense? Maybe, but she may very well have formed a more favorable view of her as an alibi witness if she spoke with her;
You get the point. One of the actual reasons given by trial counsel in Montgomery for not contacting an alibi witness -- disbelieving the defendant -- is similar to all of the hypothesized reasons given for Gutierrez not contacting Asia McClain. And, if Gutierrez's possible concerns about calling Asia McClain as a witness could have been quelled by contacting her, Montgomery would seem to stand for the proposition that the failure to contact was ineffective assistance.