THE Most Important Case for the Alibi Issue in the Adnan Syed Case

In a comment on yesterday's post, a reader asked me to comment on Cullen v. Pinholster, 563 U.S. 170 (U.S. 2011), the Supreme Court case the State cites extensively in its brief in the Adnan Syed case. Pinholster is what I would regard as a garden variety ineffective assistance of counsel case. Scott Pinholster was convicted of first-degree murder. During Pinholster's sentencing hearing,

[d]efense counsel did not call a psychiatrist, though they had consulted Dr. John Stalberg at least six weeks earlier. Dr. Stalberg noted Pinholster's “psychopathic personality traits,” diagnosed him with antisocial personality disorder, and concluded that he “was not under the influence of extreme mental or emotional disturbance” at the time of the murders.

After he was given the death penalty, Pinholster claimed that the failure to call a psychiatrist at sentencing was ineffective assistance of counsel, and the Ninth Circuit Court of Appeals partially granted him relief. The Supreme Court, however, reversed, concluding that

[t]he Court of Appeals was required not simply to “give [the] attorneys the benefit of the doubt”...but to affirmatively entertain the range of possible “reasons Pinholster's counsel may have had for proceeding as they did.”

The State claims that the courts in Maryland are similarly required to affirmatively entertain the range of possible reasons Cristina Gutierrez might not have contacted Asia McClain. I would contend, however, that this reasoning is wrong. This is the analysis that applies when trial counsel has done the necessary investigation.

In Pinholster, trial counsel consulted with an expert -- Dr. John Stalberg -- before making the strategic decision not to call him at the sentencing hearing, meaning that the courts needed to entertain the range of reasons why trial counsel might not have called him. Similarly, there are manifold cases in which trial counsel contacts a prospective alibi witness and decides against calling him/her at trial, with the courts thereafter having to entertain the range of reasons why trial counsel might have decided not to call the alibi witness. In both of these cases, trial counsel did the legwork needed to make such a decision.

These cases stand in stark contrast to cases like Adnan's case in which trial counsel fails to make initial contact with the alibi witness. In these cases, the courts aren't required to entertain the range of possible reasons why trial counsel didn't contact the alibi witness; instead, “it is unreasonable not to make some effort to contact [alibi witnesses] to ascertain whether their testimony would aid the defense.” Grooms v. Solem, 923 F.2d 88, 90 (8th Cir.1991).

But let's say that the Court of Appeals of Maryland does apply Cullen v. Pinholster. I did a Westlaw search of adv: "Cullen v. Pinholster" and alibi, and the first result after Cullen itself was Foster v. Wolfenbarger, 687 F.3d 702 (6th Cir. 2012), and it's pretty much the perfect case for Adnan.

In Foster, Demetrius Foster was charged with first-degree murder in connection wit the death of Bobby Morris in Detroit, Michigan at about 2:45 P.M. on November 17, 1998.

Prior to trial, Arthur Daniels sent a letter to Foster's trial counsel, claiming that Foster was at his home from 2:15 to 6 a.m. on the day of the shooting. Foster's trial counsel eventually spoke to Daniels over the telephone for roughly fifteen to twenty minutes. Daniels was not called as a witness during trial.

At the close of trial, the jury deadlocked on the first-degree murder charge and convicted Foster on the lesser included charge of second-degree murder (which, unlike first-degree murder, doesn't require proof of premeditation).

After he was convicted, Foster appealed, claiming that he received the ineffective assistance of counsel. At a hearing on that claim, 

trial counsel stated that he decided not to pursue the alibi defense based on his interview of Daniels. Trial counsel testified that he found Daniels's testimony to be "vague," and was concerned that Daniels would be a poor witness.

Foster's appeal eventually reached federal district court, which

concluded that counsel's ineffectiveness turned not on whether trial counsel's conclusion regarding Daniels was a reasonable strategic judgment, but rather on whether it was reasonable not to further investigate possible support for an alibi defense in light of Daniels's testimony. Foster v. Wolfenbarger, No. 04–73794, 2010 WL 3341534, at *1 (E.D.Mich. Aug. 24, 2010)  (unpublished). “If trial counsel truly believed that the witness's testimony sounded ‘vague,’ he should have done more to investigate the alibi.” Id. Since it is undisputed that trial counsel did not perform any additional investigation beyond briefly interviewing Daniels, the district court concluded that trial counsel was deficient:

 

As counsel did not perform a thorough investigation into the alibi, his decision not to present the alibi cannot be considered sound trial strategy. Trial counsel should have investigated further, including ascertaining whether any other individual was present who could support the alibi.

In reviewing this decision, the Sixth Circuit began by analyzing the applicable law:

“The duty to investigate derives from counsel's basic function, which is to make the adversarial testing process work in the particular case.” Towns v. Smith, 395 F.3d 251, 258 (6th Cir.2005) (quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)) (internal quotation marks omitted). “This duty includes the obligation to investigate all witnesses who may have information concerning his or her client's guilt or innocence.” Id. at 258. “A purportedly strategic decision is not objectively reasonable when the attorney has failed to investigate his options and make a reasonable choice between them.” Id. (internal quotation marks omitted). In fact, “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052).

Applying this law to the facts at hand, the court was easily able to conclude that trial counsel was ineffective:

Here, trial counsel's only investigation with regard to the alibi defense was to question Daniels, over the telephone, for approximately fifteen to twenty minutes. Even crediting trial counsel's conclusion that Daniels would make a poor witness, that does not represent a full investigation of the alibi defense under the circumstances. While Daniels might have been a poor witness, trial counsel did nothing to investigate the other two individuals at the home with Daniels who might have information concerning Foster's alibi theory.[2] Either of these two individuals, or all three of the witnesses collectively, might have overcome any deficiencies in Daniels's testimony and demeanor. Trial counsel did nothing to explore these possibilities.

[2] Trial counsel could not recall whether anyone told him that there were two other people at the home with Daniels during the hours in question. This does not affect the outcome of this appeal. Even if Daniels did not volunteer the names of the other two individuals at the home, trial counsel should have asked about potential corroborating witnesses. The fact that trial counsel did not ask such an obvious and common-sense question demonstrates the lack of investigation by trial counsel.

The Sixth Circuit then turned aside the State's argument that trial counsel could have decided not to further pursue the alibi because it would have conflicted with some other trial strategy, concluding that

the alibi defense was completely consistent with, and in fact complimentary to, trial counsel's theory of mistaken identification. The fact that one or more individuals would place Foster in a different location at the time of the shooting supports the premise that Hollins misidentified Foster. In fact, trial counsel admitted this during the Ginther hearing. Thus, this is not a situation where defense counsel is required to choose between two different avenues and pick the theory of the case that counsel believed was stronger. Instead, trial counsel chose not to investigate an avenue that potentially could have bolstered the defense that counsel was already pursuing.

Finally, the Sixth Circuit gave great deference to the trial court's opinion regarding Daniels's credibility in finding that trial counsel should have further pursued his alibi claim:

Finally, we note that the trial court concluded that Foster's counsel was deficient. We give due deference to the conclusions of the trial judge on the effectiveness of counsel, because “[t]he judge, having observed the earlier trial, should have an advantageous perspective for determining the effectiveness of counsel's conduct and whether any deficiencies were prejudicial.” Massaro v. United States, 538 U.S. 500, 506, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). The trial judge here heard the testimony of both Foster's counsel and Daniels, and based on that testimony found that Foster's counsel should have pursued the alibi theory. While the trial court's ruling is not a dispositive basis for granting relief, it provides support for the district court's rationale and our own conclusion. See Leonard v. Michigan, 256 F.Supp.2d 723, 732 (W.D.Mich.2003) (giving deference to the state trial court's findings on trial counsel's deficiencies and deeming the state appellate court “unreasonable” for not doing the same).

It's hard to imagine a stronger case for Adnan:

-Demetrius Foster and Adnan Syed were both charged with murder;

-In Foster, a prospective alibi witness -- Arthur Daniels -- sent trial counsel a letter. In Adnan's case, a prospective alibi witness -- Asia McClain -- sent Adnan two letters that he showed to trial counsel;

-In Foster, the alibi letter did not mention two other witnesses to the same alibi, and trial counsel couldn't recall whether anyone had mentioned these two other witnesses before trial. In Adnan's case, Asia's first alibi letter said, "My boyfriend and his best friend remember seeing you [at the library] too;"

-In Foster, trial counsel called the prospective alibi witness, talked to him for 15-20 minutes, and decided not to further pursue the alibi defense based on believing that the alibi witness was "vague" and would be a bad witness. In Adnan's case, trial counsel didn't call the prospective alibi witness;

-In Foster, the prospective alibi witness later testified and was deemed credible by the trial court. In Adnan's case, the prospective alibi witness later testified and was deemed credible by the trial court (Judge Welch).

In other words, Foster is the mirror image of Adnan's case except for the facts that (1) Cristina Gutierrez didn't even call her prospective alibi witness; and (2) it is unclear whether Foster's counsel was aware of the two other prospective alibi witnesses while it is 100% clear that Gutierrez was aware of at least one other prospective alibi witness (defense notes; defense notes).

Moreover, the State in Foster made some of the same arguments that the State is making in Adnan's case: that the alibi witness was too vague, that the alibi witness wouldn't be a good alibi witness, that the alibi witness would have contradicted the defense's trial strategy. The Sixth Circuit, however, turned all of these arguments aside. Given that Gutierrez did even less than defense counsel in Foster, there's an exceedingly strong argument that she was ineffective.

-CM