EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, December 2, 2018

My Fourth Post on the Oral Arguments in the Adnan Syed Case: Objective vs. Subjective

This is my fourth post on Thursday's oral arguments in the Adnan Syed case. This one covers the two points upon which the State a defense agreed: (1) there is fixed factual finding in this case that nobody from Cristina Gutierrez's team contacted prospective alibi witness Asia McClain before trial; and (2) the test for determining whether trial counsel was ineffective under Strickland v. Washington is an OBJECTIVE test, not a SUBJECTIVE test. So, what does this distinction mean, and why is it so important to the defense?


First, why is there agreement between the State and the defense that the ineffective assistance of counsel test from Strickland v. Washington is objective rather than subjective? The answer is that the case law is clear. As the Supreme Court noted in Harrington v. Richter,  "Strickland, however, calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind."

So, assume that Dana is charged with arson and Tracy, her trial counsel, interviews:

-Alice, a redheaded alibi witness who was convicted of perjury 2 years ago; and

-Erica, an arson expert with a degree from Harvard and a methodology that has been determine to be "junk science" in another case.

Tracy decided to call neither of these witnesses, and Dan is convicted. Dana later brings an ineffective assistance of counsel claim against Tracy. At the hearing on that claim, Tracy testifies that (1) she didn't call Alice because she doesn't trust redheads; and (2) she didn't call Erica because Tracy got rejected when she applied to Harvard and has animosity toward anyone who hold a Harvard degree.

If courts applied a subjective test, Dana would win on her claim of ineffective assistance because her own personal reasons for failing to call Alice and Erica as witnesses are ridiculous and would easily constitute deficient performance. But, as noted, courts apply an objective test. And what this means is that Dana's claim is going to fail. This is because we don't care about why Tracy herself failed to call Alice and Erica as witnesses. Instead, we ask whether an objectively reasonable person would have called Alice and Erica as witnesses. And the answer would be "no" due to Alice's perjury conviction and Erica's "junk science."

This ties into a point that Cate Stetson made during oral arguments: We know that the trial team didn't contact Asia McClain, and we know the information that the trial team had about Asia and her alibi. The one thing we don't know is the one thing that doesn't matter: Why Gutierrez didn't contact Asia McClain.

Of course, the reason why this doesn't matter is that the subjective reason that Gutierrez might have had for not contacting Asia is irrelevant. All the Court of Appeals judges should be asking themselves is whether an objectively reasonable attorney in Gutierrez's shoes would have contacted Asia given all of the information we have from the appellate record.

This is important because the State is claiming that Adnan has not proven his case of ineffective assistance because there is a "silent record" and a lack of testimony from Gutierrez explaining her thinking. But given that the Strickland test is objective, this shouldn't matter.



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You may have discussed this previously, but why is the defense not allowed to bring up CG disbarment and health issues?

Posted by: Kristina | Dec 2, 2018 2:39:45 PM

Yes. That nails it!

Posted by: Linnette garber | Dec 3, 2018 6:03:14 AM


I'm curious where you would draw the line on the degree of communication required between an attorney and a prospective alibi witness.

Let's say such a witness wrote a detailed statement, later notarized and submitted as an affidavit to a defense attorney. The attorney did not call the witness on the phone but had all pertinent information available via the statement. Still IAC?

Posted by: Jonathan | Dec 3, 2018 7:52:35 AM

Kristina: Judge Welch did not allow that evidence to be admitted, so it’s not part of the appellate record.

Linnette garber: Thanks!

Jonathan: Yes. Let’s assume facts similar to the Adnan Syed case: State says the victim is killed 1 mile away from the school between 2:15 and 2:36pm. Alibi witness writes a detailed, notarized alibi statement saying that she saw the defendant at the library next to the school from 2:20-2:40pm. The defense team sees this notarized statement but does not contact the alibi witness. Trial counsel doesn’t call the alibi witness at trial. Defendant is convicted. At PCR, the alibi witness gives testimony that the PCR judge deems credible. That seems like clear IAC to me.

Posted by: Colin Miller | Dec 3, 2018 8:48:12 AM


Would it still be IAC in your opinion if the attorney did contact the prospective witness but did not call them to testify?

Posted by: Jonathan | Dec 3, 2018 9:21:34 AM

Jonathan: No. Case law makes clear that contacting and then making the decision not to call an alibi witness is reasonable. It's making the decision w/out contacting the witness that is IAC.

Posted by: Colin Miller | Dec 3, 2018 9:45:36 AM


It's that distinction that you're making there - the magic of "contacting" - that I don't follow.

The duty to contact is the duty to understand what the witness might say and whether they're willing to testify, yes? If the attorney has gained that information through other modes of communication, e.g. written affadavit, what's the difference?

The IAC line of reasoning vis-a-vis "no contact" seems blurred with the argument that Syed should get a new trial because he had a *bad* lawyer. I don't see how that's a good argument. No one is constitutionally guaranteed a good lawyer, only a competent lawyer.

Posted by: Jonathan | Dec 3, 2018 11:33:08 AM

Jonathan: I think courts view contacting an alibi witness the same way they view a hearing judge’s factual findings. Higher appellate courts give great deference to a hearing judge’s credibility determinations because the hearing judge saw the witness’s demeanor, composure, etc. when they testified. A higher appellate court judge can see the transcript of what the witness said, but they weren’t there to experience that testimony. I think the same goes with trial counsel and alibi witnesses. If trial counsel says that she contacted an alibi witness and found her lacking in credibility, courts will declare that finding reasonable because they will trust counsel’s credibility determination (and lack the ability to hear what trial counsel heard). Conversely, if trial counsel merely reads a statement written by a prospective alibi witness, she (1) doesn’t have enough information to determine how she would fare at trial; and (2) doesn’t have superior information to the court, which could read the same statement about make its own determination. Indeed, if that alibi witness ends up testifying at a PCR hearing (as in Adnan’s case), the hearing judge will have superior information to trial counsel when she made the decision not to call her.

I would also say that the strength of this distinction doesn’t matter in Adnan’s case. Asia’s letter(s) mentioned two other potential alibi witnesses (and the possibility of video cameras). This required follow-up in the form of contact.

Posted by: Colin Miller | Dec 3, 2018 12:36:28 PM

I don’t think the “magic distinction” being made here is Colin’s, but rather is that of a ton of prior precedent.

Posted by: Paul | Dec 3, 2018 7:33:53 PM

Certainly there is a large body of precedent "adjacent" to this issue, but the reason this case has been elevated all the way to the top appellate court in Maryland is this is an issue of first impression. The Maryland courts have not ruled on this precise issue before.

Thanks for indulging my questions. It's an interesting argument, that direct interaction with a prospective witness is viewed as superior to indirect interaction, to the point that solely using indirect interaction constitutes incompetence.

Let's say that's so, arguendo. How is that not arguing for a per se rule?

Posted by: Jonathan | Dec 4, 2018 6:56:18 AM

Jonathan: Let's say that Adnan told Gutierrez, "I was with my friend Chris in California, Al in Alaska, or Brian in Brazil on the afternoon of January 13, 1999. Give him a call." I would not find the failure to contact one of the witnesses IAC. Gutierrez enough evidence that Adnan was in Baltimore on that afternoon to make any of these alibis implausible.

Posted by: Colin Miller | Dec 4, 2018 8:16:25 AM

Adding to what Colin just said, if there was a "per se" rule, then CG would be found deficient based on "I was with my friend Chris in California, Al in Alaska, or Brian in Brazil on the afternoon of January 13, 1999. Give him a call." It wouldn't matter that there was record evidence that Adnan was in none of those places, she was on notice to call those people and she didn't.

Posted by: Michael | Dec 4, 2018 4:35:04 PM

Of course, 100% agree.

But that trivial example doesn't reflect my argument or the argument made by the State, which is:
The defense is arguing that not *verbally* contacting a plausible alibi witness is per se incompetence. The attorney can take possession of a detailed affidavit but that does not satisfy their duty.

Conversely, once an attorney has verbally contacted a plausible alibi witness, their duty is satisfied no matter the quality of that conversation or how poor the outcome was given the judgement of the attorney to not call that witness.

Posted by: Jonathan | Dec 5, 2018 9:13:20 AM

Jonathan: I think the State is trying to claim that this is the defense dichotomy, but I don’t think this is what the defense is arguing. First, I think that looking at the affidavit COULD be enough. If Adnan produced an alibi affidavit from Carl in California, I think it would be reasonable for Gutierrez not to contact her given the evidentiary record we have in this case. Second, assume that Gutierrez did talk to Asia for 5 minutes and quickly dismissed her because she thought (at the time) that the State would argue that Hae didn’t leave school until after 3:00pm (as per Debbie). In that case, it could be IAC not to call Asia as a witness given that Gutierrez saw at trial #1 that the State’s timeline was oriented around a 2:36pm Best Buy call. I think this is supported by the State’s citation to Foster v. Wolfenbarger, where contact with an alibi letter writer was not enough: https://www.leagle.com/decision/infco20120720110

In summation, I think the defense is arguing that failure to contact an alibi witness is often, but not, always IAC while contacting and then not calling an alibi witness is often, but not always, reasonable.

Posted by: Colin Miller | Dec 5, 2018 9:36:57 AM

Doesn’t not contacting a witness foreclose the possibility of calling them to testify? No matter how much investigation has been done, if witness is contacted there is an option to have them testify and of the witness hasn’t been contacted that option is off the table.

Posted by: Michael | Dec 5, 2018 10:13:09 AM

Michael: I think it's theoretically possible to call an alibi witness you haven't contacted, but I wouldn't recommend it.

Posted by: Colin Miller | Dec 5, 2018 12:01:43 PM

Whenever you revisit the IAC issue, I always wonder whether Gutiérrez just conflated Asia and Aisha. Did she think she had answered the mail by talking to Aisha, who obviously wasn’t helpful regarding the library alibi? I seem to remember CG spelling one of their names wrong in her notes. Obviously we’ll never know what actually transpired, but that’s my theory of how the failure to contact Asia happened.

Posted by: Meredith | Dec 5, 2018 12:11:57 PM

@Jonathan --

Contact by letter or email *is* verbal contact. And anyway, the distinction isn't between oral contact/communication and written contact/communication. It's between contact via which it's possible to determine whether a witness who represents a plausible alibi comes across as credible and contact that tells you nothing beyond that such a witness exists.

Posted by: pluscachange | Dec 9, 2018 4:39:04 PM

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