My Second Post on the State's New Brief in the Adnan Syed Case

In yesterday's post, I covered the State's Reply Brief of Petitioner/Cross-Respondent in the Adnan Syed case and its allegation that the defense was engaging in a bait-and-switch. Specifically, 

the State is claiming that (1) the defense's bait is to claim that Cristina Gutierrez was deficient because she merely had to pick up the phone and call alibi witness Asia McClain; and (2) the defense's switch is then to claim that Adnan Syed was prejudiced based upon Gutierrez's failure to use Asia McClain as an alibi witness at trial. In other words, the State is claiming that contacting Asia McClain wouldn't have necessarily led to Gutierrez calling her at trial.

In yesterday's post, I noted how the Fourth Circuit's opinion in Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), belies this claim. I used Griffin because it is a Fourth Circuit case originating out of Baltimore, but it turns out the one of my favorite IAC/alibi cases -- Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988) -- makes things even clearer.

I've covered Montgomery a few times on this blog, most recently in "The One Case the State Can't Seem to Distinguish in its Cert Petition in the Adnan Syed Case." Montgomery is such a helpful case because defense counsel did interview twelve alibi witnesses in that case but was found deficient due to failure to contact a thirteenth alibi witness, a Sears clerk who sold the defendant a bicycle.* After finding that the failure to contact this thirteenth alibi witness was deficient performance, the Seventh Circuit did the same prejudice analysis that the defense is asking the Court of Appeals to conduct. 

Specifically, the Montgomery court cited to its prior opinion in United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir.1987), where it held that

The focus of the inquiry must be on what information would have been obtained from such an investigation and whether such information, assuming its admissibility in court, would have produced a different result. Under usual circumstances, we would expect that such information would be presented to the habeas court through the testimony of the potential witnesses.

The court then noted the clerk's credible habeas testimony and found that it would have provided an alibi, undermining the court's confidence in the jury's verdict and leading to a new trial.

Of course, this is the exact same analysis that the defense suggests (and that the Court of Special Appeals conducted) in Adnan's case. First, Adnan established deficient performance based on Gutierrez's failure to contact alibi witness Asia McClain. Second, Asia McClain testified at the reopened PCR hearing about seeing Adnan between about 2:20 and 2:40pm on the day that Hae Min Lee disappeared. Third, the Court of Special Appeals found that such information, assuming its admissibility, i.e., assuming that Asia had testified at the original trial, would have produced a different result.

In other words, what the State labels as a bait-and-switch is actually the standard analysis that courts utilize in IAC/alibi cases.

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*According to defense counsel, “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.”

-CM