Wednesday, January 9, 2019
How the Skakel & Gissendanner Cases Help Defendants Like Adnan Syed With Ineffective Assistance/Alibi Claims
On Monday, the United States Supreme Court denied certiorari in Connecticut v. Skakel, meaning that it will not hear the State of Connecticut's appeal from the Supreme Court of Connecticut opinion granting Michael Skakel a new trial.
Skakel is a nephew of Ethel Skakel Kennedy, the widow of Senator Robert F. Kennedy. In 2002, he was convicted of the October 30, 1975 murder of Martha Moxley, who was last seen spending time at the home of the Skakel family, across the street from her home in Belle Haven. Both Skakel and Moxley were 15 years old at the time. Skakel's cousin, Georgeann Dowdle, testified before the grand jury in the case "that she was at home with her young daughter and her 'beau' on the night of the murder and heard her brother and Skakel cousins talking, but, given the passage of so much time, she could not recall whether she actually saw them."
Defense counsel did not, however, contact Dowdle's "beau," and Skakel was eventually convicted of murder. Back in May, the Supreme Court of Connecticut found that this failure to contact Dowdle's "beau" was ineffective assistance of counsel. With the United States Supreme Court denying certiorari, the Supreme Court of Connecticut's opinion in Skakel becomes final and will not be disturbed. So, what's the combined effect of the Skakel opinion and the recent opinion of the Supreme Court of Alabama in the Gissendanner case? It means that it just became a lot easier for defendants like Adnan to establish ineffective assistance of counsel based on failure to contact an alibi witness.
I think the primary windfall to defendants from both of these cases is under the prejudice prong of the ineffective assistance of counsel test. As I've noted, pursuant to Strickland v. Washington, a defendant seeking to prove a claim of ineffective assistance of counsel must establish both (1) deficient performance by trial counsel; and (2) prejudice, i.e., that there would have been the reasonable probability of a different outcome (hung jury or acquittal) if trial counsel had performed reasonably. As I've also noted, there is clear precedent from across the country that failure to contact an alibi witness is always, or at least almost always, deficient performance.
Prejudice is a different matter. That's not to say that there is case law in which courts have found that defendants have failed to prove prejudice in the alibi context. It's just to say that courts typically follow a two step process to assess prejudice in "failure to contact" cases: (1) they note that the prejudice inquiry is a fact sensitive inquiry that looks at the circumstances of each case; and (2) they then find prejudice under the facts of the case at hand. Up until this point, then, defendants like Adnan have been able to point to these cases while acknowledging that the facts of each case are different.
The Gissendanner and Skakel cases, however, seem different. They seem to be saying that, as with deficient performance, the failure to contact an alibi witness will always, or almost always, be prejudicial. Here's the key quote from Gissendanner:
[T]here is nothing as dangerous as a poorly investigated alibi. An attorney who is not thoroughly prepared does a disservice to his client and runs the risk of having his client convicted even [when] the prosecution's case is weak.
Meanwhile, here's the key string citation from the Skakel case:
Before addressing the nature and strength of the evidence adduced by the state at the petitioner’s criminal trial, it bears emphasis that our research has not revealed a single case, and the respondent has cited none, in which the failure to present the testimony of a credible, noncumulative, independent alibi witness was determined not to have prejudiced a petitioner under Strickland’s second prong. There are many cases, however, in which counsel’s failure to present the testimony of even a questionable or cumulative alibi witness was deemed prejudicial in view of the critical importance of an alibi defense. See, e.g., Caldwell v. Lewis, 414 Fed. Appx. 809, 818 (6th Cir. 2011) (‘‘[The] [c]ourt has recognized that when trial counsel fails to present an alibi witness, [t]he difference between the case that was and the case that should have been is undeniable. . . . [The] [c]ourt has held that the failure to produce an alibi witness at trial was prejudicial under Strickland, even [when] the . . . [habeas] court said [that] the alibi witnesses would have been unconvincing, and there were other alibi witnesses presented at trial.’’ [Citation omitted; internal quotation marks omitted.]); Brown v. Myers, 137 F.3d 1154, 1155–56, 1157–58 (9th Cir. 1998) (petitioner suffered prejudice from counsel’s failure to present alibi witnesses even though their testimony ‘‘was vague with regard to time,’’ and three eyewitnesses identified petitioner as shooter); see also Davis v. Lafler, 658 F.3d 525, 541 (6th Cir. 2011) (‘‘[the] court has repeatedly found prejudice resulting from trial counsel failing to investigate or present favorable witnesses’’), cert. denied, 566 U.S. 947, 132 S. Ct. 1927, 182 L. Ed. 2d 788 (2012); Bigelow v. Haviland, supra, 576 F.3d 291 (when case turned on credibility of state’s witnesses, failure to produce alibi witness was prejudicial); Avery v. Prelesnik, supra, 548 F.3d 439 (‘‘[The] potential alibi witnesses coupled with an otherwise weak case renders the failure to investigate the testimony sufficient to undermine confidence in the outcome of the jury verdict. . . . [T]he jury was deprived of the right to hear testimony that could have supplied . . . reasonable doubt.’’ [Internal quotation marks omitted.]); Harrison v. Quarterman, 496 F.3d 419, 427 (5th Cir. 2007) (‘‘[o]ur sister circuits have held that counsel prejudices his client’s defense when [he] fails to call a witness who is central to establishing the defense’s [theory of the case]’’); Raygoza v. Hulick, supra, 474 F.3d 960, 964–65 (petitioner was prejudiced by counsel’s failure to present independent alibi witness who would have corroborated testimony of petitioner’s girlfriend that petitioner was thirty-five miles from crime scene at time of murder); Stewart v. Wolfenbarger, 468 F.3d 338, 359–61 (6th Cir. 2006) (petitioner prejudiced by counsel’s failure to call independent alibi witness to corroborate another alibi witness whose testimony was subject to impeachment); Alcala v. Woodford, 334 F.3d 862, 872–73 (9th Cir. 2003) (petitioner was prejudiced by counsel’s failure to investigate and corroborate petitioner’s alibi, insofar as prosecution’s evidence was ‘‘far from compelling’’ and eyewitness made ‘‘confident’’ but ‘‘not unimpeachable’’ identification of petitioner); Lindstadt v. Keane, 239 F.3d 191, 204–205 (2d Cir. 2001) (petitioner was prejudiced when trial counsel failed to present evidence that could have corroborated petitioner’s alibi claims); Montgomery v. Petersen, supra, 846 F.2d 415 (petitioner was prejudiced by counsel’s failure to call additional, disinterested alibi witnesses not subject to same impeachment as petitioner’s other alibi witnesses, all of whom were family members); Syed v. State, Docket Nos. 1396, 2519, 2018 WL 1530300, *3, *45–49 (Md. App. March 29, 2018) (when state’s case rested in part on testimony of witness who claimed to have helped petitioner dispose of victim’s body, petitioner was prejudiced by counsel’s failure to present testimony of independent alibi witness, inasmuch as ‘‘potential alibi witnesses coupled with an otherwise weak case render[ed] the failure to investigate the [alibi] testimony sufficient to undermine confidence in the outcome of the jury verdict’’ [internal quotation marks omitted]). The only cases to the contrary are ones in which the exculpatory evidence was found not to be credible, or, in addition to such a finding, there was conclusive physical evidence linking the petitioner to the crime. See, e.g., Moore v. New York, 357 Fed. Appx. 398, 401 (2d Cir. 2009) (undercover police officers observed petitioner committing crime); Hemstreet v. Greiner, 491 F.3d 84, 92 (2d Cir. 2007) (petitioner was not prejudiced by counsel’s failure to present additional alibi witness ‘‘of questionable veracity’’ when state’s case was based on ‘‘[o]verwhelming items of forensic evidence connect[ing] [the petitioner and his accomplice] to the murder . . . including [the victim’s] blood in [the petitioner’s] car’’), cert. denied sub nom. Hemstreet v. Ercole, 552 U.S. 1119, 128 S. Ct. 962, 169 L. Ed. 2d 763 (2008) (emphases added).
So, the Supreme Court of Alabama is saying it's hard to imagine anything more prejudicial than the poor investigation of an alibi witness, and the Supreme Court of Connecticut is saying that it has looked at precedent from across the country and hasn't found a single case where failure to contact an alibi witness has been found to be non-prejudicial. These are exactly the types of strong holdings that you'd expect to see defendants citing...and prosecutors trying to diminish.
And, indeed, prosecutor Thiru Vignarajah tried to dismiss the Skakel opinion during oral arguments in the Adnan Syed case, arguing that he had found cases in which courts found no deficient performance in the "failure to contact" context, meaning that the Supreme Court of Connecticut's research must have been lacking. What Vignarajah missed was that the Supreme Court of Connecticut was talking about the prejudice prong, nullifying his point.
Furthermore, the case he cited was the Broadnax case from the Court of Criminal Appeals of Alabama, and...to the extent that case ever helped the State, it has now been nullified by the Supreme Court of Alabama's opinion in Gissendanner.