The Important New Ineffective Assistance/Alibi Case Cited by the Defense in the Adnan Syed Case

In its opening brief to the Court of Appeals of Maryland yesterday, the defense in the Adnan Syed case highlighted an especially interesting case decided less than a year ago. That case addresses the main argument being advanced by the State and is factually similar to Adnan's case. It is People v. Upshaw, 89 N.E.3d 1049 (Ill.App. 1st Dist. 2017).

In Upshaw, Micah Upshaw was convicted of two counts of attempted first degree murder, based on a shooting incident that occurred on February 23, 1996. After he was convicted, Upshaw brought an ineffective assistance of counsel claim. Upshaw supported this claim with his an own affidavit and an affidavit by Tyrone White, who

attested, in his affidavit, that on the evening of February 22, 1996, he was at his mother's house “at 6132 S. Champlain,” hanging out with Mr. Upshaw, his sister, and a girl named Monique Jackson. Mr. White stated that, at approximately 2 a.m. on February 23, he left the house to visit a friend and, at the time he left, Mr. Upshaw was asleep on the couch. He explained that he remembered “these events” because he passed the scene of what he “later learned was [the] shooting at 54th and Prairie and saw all of the police cars” and because he met a woman that night that he “ended up dating for several years.” He discussed the case with Mr. Upshaw prior to the trial and “discussed [his] being an alibi witness for [Mr. Upshaw].” Mr. White said in his affidavit that he would have been willing to testify at Mr. Upshaw's trial but that he was never contacted by Mr. Upshaw's trial counsel.

Upshaw did not call his trial counsel as a witness. In finding that Upshaw had proven his claim of ineffective assistance of counsel, the court began by noting that

"strategic decisions may be made only after there has been a ‘thorough investigation of law and facts relevant to plausible options.'"....Thus, this court ha[s] held that "'[t]he failure to interview witnesses may indicate actual incompetence [citation], particularly when the witnesses are known to trial counsel and their testimony may be exonerating.'"

Applying this law to the case at hand, the court held that

The affidavits of Mr. Upshaw and Mr. White attached to Mr. Upshaw's supplemental petition support a substantial showing that trial counsel was deficient for failing to contact Mr. White as a possible alibi witness, meeting the first prong of the Strickland test. Mr. Upshaw alleged in his affidavit that he was with Mr. White at Mr. White's home at the time of the shooting, that he provided his trial counsel with Mr. White's address and telephone number, and that he told trial counsel that Mr. White would be willing to serve as an alibi witness. Mr. White similarly attested in his affidavit that he and Mr. Upshaw were together on the night of the shooting, that he had reason to remember that night, and that he “saw all of the police cars” when he drove past 54th Street and Prairie Avenue at about 2 a.m. Mr. White also stated that he would have testified at Mr. Upshaw's trial but was never contacted by counsel. The record suggests no strategic reason that counsel may have decided not to investigate Mr. Upshaw's alibi or not to even interview Mr. White. Taking the facts presented in the affidavits as true, as we must at this stage..., Mr. Upshaw met his burden of making a substantial showing that his trial counsel was deficient.

A few points to note here. First, the facts in Upshaw are exceedingly similar to the facts in the Adnan Syed case. Both men were charged with murder, both presented their attorneys with the name and phone number of an alibi witness who covered the time of the crime, each alibi witness stated that there were two other people present at the time of the alibi, and defense counsel in both cases failed to contact the alibi witness. 

Second, the proof of failure to contact was similar in both cases: the statements of the defendant and the alibi witness. The defendant in neither case called trial counsel to testify that she didn't contact the alibi witness and/or explain her conduct. In Adnan's case, this was because his trial counsel was deceased; it is unclear why Upshaw didn't call his trial counsel. But it's clear that his failure to call trial counsel was not fatal to his claim as the State in the Adnan Syed case would have the court believe.

This takes to the third point, which is that courts do not require defendants to prove a negative in the ineffective assistance/alibi context. The State has claimed that the defense in the Adnan Syed case had to present affirmative evidence of why Cristinia Gutierrez failed to contact Asia McClain and that the court can presume possible strategic reasons for this failure without such evidence. But the Illinois court makes clear that the absence of evidence of a strategic reason to fail to contact an alibi witness is sufficient to prove ineffective assistance. This is because "'[t]he failure to interview witnesses may indicate actual incompetence [citation], particularly when the witnesses are known to trial counsel and their testimony may be exonerating.'" Upshaw and a few of the other new cases cited by the defense seem particularly compelling, and it will be interesting to see if/how the State addresses them.

-CM