Friday, September 25, 2015

In yesterday's post, I did an initial analysis of the State's CONSOLIDATED RESPONSE IN OPPOSITION TO PETITIONER’S MOTION AND SUPPLEMENT TO REOPEN POST-CONVICTION PROCEEDINGS in the Adnan Syed case. In this post, I am going to focus on the portion of the State's RESPONSE that has me more convinced than ever that the court will grant Adnan's motion to reopen.

Let's start by reviewing the standard that will be used to determine whether to reopen Adnan's postconviction proceeding. Adnan needs to prove that it is "in the interests of justice" to reopen the postconviction proceeding under Section 7-104 of the Maryland Code of Criminal Procedure, which states that

The court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.

In yesterday's post, I already discussed how Adnan's attorney cited to several on point cases in which a petitioner satisfied this standard while the State cited no cases to the contrary.

The second part of this analysis is that Adnan needs to establish that the court could reverse its prior ruling and grant him a new trial based upon the testimony of his alibi witness (and perhaps other evidence). To establish this fact, Adnan's attorney cited to the opinion of the Court of Appeals of Maryland in In re Parris W., 770 A.2d 202 (Md. 2001), and the four cases cited with approval in that opinion: (1) Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992) ("strikingly similar" case involving the same courts handling Adnan’s trial and appeal); (2) Grooms v. Solem, 923 F.2d 88 (8th Cir. 1991); (3) Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988); (4) Tosh v. Lockhart, 879 F.2d 412 (8th Cir. 1989).

Together, these cases hold that "[o]nce a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense." Specifically, the court in Griffin concluded that trial counsel cannot strategically decide against calling an alibi witness at trial when he has not contacted that witness to assess her credibility and importance.

As I noted yesterday, the State cited no countervailing cases in its RESPONSE. Perhaps even more significantly, the State didn't even address these cases or their holdings in the body of its RESPONSE. Instead, this analysis was relegated to a single footnote, footnote 3:

It should be noted that Syed’s continued reliance in his motion to reopen on cases that held that trial counsel failed to investigate alibi witnesses adequately is misplaced. Motion to Reopen at 5, n.2. Unlike those cases, there was ample evidence here of proactive pursuit of an alibi defense, and there were serious risks to expanding that defense to include an unpredictable and potentially contradictory witness. Put simply, Gutierrez’s team assiduously developed 80 alibi witnesses that would conform to the account provided by Syed to police. To demand that a skilled and seasoned trial attorney like Christina Gutierrez abandon — or risk compromising — one alibi strategy to chase after another is inconsistent with the constitutional guarantee of effective counsel. In response, Syed relies on the fact that Gutierrez did not contact McClain personally. Motion to Reopen at 3, 16. Speaking to McClain, however, is not the only way for Gutierrez to have assessed the value and veracity of the potential alibi. In fact, the evidence before this Court makes clear that other methods of inspecting the potential alibi existed. After all, the law clerk’s notes upon which Syed relied to show that the defense was aware of the McClain letters in the first place also reveal that, on the same date the McClain correspondence was discussed, the defense team obtained — presumably from Syed — his email account information and were made aware that the public library may have had surveillance cameras. See Defense Post-Conviction Exhibit 5. Syed himself indicated that he was "fairly certain" that use of his email account would have been the principal reason for this presence at the Woodlawn Library between the end of school and the start of track practice. (T. 10/25/12 at 30-32). Thus, by simply entering the login and password scribbled on the law clerk’s note, Gutierrez’s team could have swiftly evaluated the potential alibi by determining whether Syed’s email account had activity during the relevant timeframe. And where a seasoned defense attorney like Gutierrez generates a list of 80 potential alibi witnesses, it is reasonable to conclude that some inspection of this 81st alibi witness was performed.

Let's look at the arguments in each paragraph of the footnote:

Paragraph 1: Unlike the Attorneys in the Other Cases, Gutierrez Did Due Diligence

First, according to the State, unlike in the cases cited by Adnan's attorney, "there was ample evidence here of proactive pursuit of an alibi defense." The State has a real problem here, and it comes in the form of Montgomery v. Petersen, one of the cases cited in Adnan's motion to reopen. I did a whole post about the case here.

In Petersen, defense counsel not only proactively pursued an alibi defense; he called twelve alibi witnesses at trial, including many who covered at least some of the period of time when the subject crime was being committed. Nonetheless, the court still found that counsel was ineffective based on failing to contact a thirteenth alibi witness, a Sears sales clerk, even though the attorney did not have the clerk's name or address. Consistent with the legal standard above, the Seventh Circuit concluded that defense counsel could not write off this clerk as an alibi witness without first contacting the clerk:

Nor can we say that defense counsel's conclusory statement that he did not believe his client was an adequate basis for ignoring such an important lead. Indeed, if counsel had taken the few steps necessary to identify and interview the Sears clerk, he may well have formed a more favorable view of his client's veracity.

Second, according to the State, "there were serious risks to expanding that defense to include an unpredictable and potentially contradictory witness." One problem with this argument was that the alibi witness in question could not have been contradictory to any of the witnesses listed in Adnan's alibi notice. The witnesses listed on the notice were (1) track teammates; and (2) members of Adnan's Mosque. Track practice started at 3:30 or 4:00 P.M. and prayers at the Mosque started later in the evening.

We know from both the notes by Adnan's attorney and the notes by her clerk that Adnan communicated that this additional alibi witness had seen him before track practice. Therefore, contacting this additional alibi witnesses in no way would have caused trial counsel to "abandon — or risk compromising — one alibi strategy to chase after another is inconsistent with the constitutional guarantee of effective counsel." Instead, this additional alibi witness would have covered a completely different time frame from the time frames covered by the other alibi witness: the time frame when the murder was allegedly being committed.

What about the claim that the alibi witness was unpredictable? As Petersen and the aforementioned cases make clear, this might be a reason to refrain from calling an alibi witness but not a reason to refrain from contacting the alibi witness.

That leaves the claim that the defense team developed "alibi witnesses that would conform to the account provided by Syed to police." This is an allusion to the State's previous argument that Adnan told the police that he remained on the Woodlawn campus between the end of school and the start of track practice. It's also the one claim that I hope Judge Welch looks at under a microscope.

In his initial opinion, Judge Welch credited this argument by the State. It turns out, however, that the State created this claim out of cloth. Simply put, there is no documentary support for the State's claim that Adnan told the police he remained on campus until the start of track practice, as I noted in this post, under the heading "Adnan Said He Stayed at School Until Track Practice Began."* Of course, all of this assumes that there is even a meaningful distinction between the school campus and the Woodlawn Public Library.**

At one point, I thought it was possible that Judge Welch relied upon Adnan's alibi notice to conclude that Adnan claimed that he remained on the school campus until track practice. The State itself has admitted, however, that it only used the alibi notice to show the depth of the defense investigation, which coheres with Maryland precedent indicating that such notices are irrelevant for determining the defendant's version of events. This takes me to the second paragraph of the State's footnote.

Paragraph 2: Counsel Could Have Investigated the Alibi & There's Reason to Believe She Did

In the second paragraph, the State asserts that "where a seasoned defense attorney like Gutierrez generates a list of 80 potential alibi witnesses, it is reasonable to conclude that some inspection of this 81st alibi witness was performed." I also addressed this point in my prior post, and I will address it again here because it is right in my wheelhouse. Like its federal counterpart, Maryland Rule of Evidence 5-803(b)(7) provides an exception to the rule against hearsay

Unless the circumstances indicate a lack of trustworthiness, [for] evidence that a diligent search disclosed that a matter is not included in the memoranda, reports, records, or data compilations kept in accordance with subsection (b)(6), when offered to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind about which a memorandum, report, record, or data compilation was regularly made and preserved.

The alibi notice lists 80 people. Of these 80 people, only one -- Adnan's father -- was called as an alibi witness. Therefore, Gutierrez, for whatever reason, made the decision not to call the other 79 witnesses as alibi witnesses. Pursuant to Rule 5-803(b)(7), the absence of a person's name on this alibi notice would thus be strong evidence that the person was not investigated or pursued, even if ultimately rejected. In other words, black letter evidence law stands for the exact opposite proposition than the one advanced by the State. Thus, if the alibi notice is to be used at all, it should be used to buttress Adnan's case.

That said, I don't know how much faith we should put in the alibi notice. Adnan's track teammate Will is listed in the alibi notice, and, as I've noted before, he has said that he was never contacted by the defense despite the fact that he had the potential to tear apart the State's entire case. I hope that Judge Welch allows Adnan's attorney to call Will at a reopened PCR hearing because I think that the fact that the defense failed to contact him despite his exculpatory potential is strong circumstantial evidence of the failure to contact other alibi witnesses.

The other argument advanced in the second paragraph is, of course, complete conjecture. The State contends that the defense team could have investigated the library alibi by logging into Adnan's e-mail account to determine whether he had accessed his account on the afternoon of January 13th. There is, however, no evidence that such an effort was undertaken and no proof that such access could have been confirmed or dispelled by logging into a Hotmail account in 1999 months after the fact. Besides, does anyone really think an attorney should completely write off a potential alibi witness based solely upon accessing the defendant's e-mail account?

Conclusion

Judges like precedent. It allows them to support their conclusions and insulates their opinions from reversal. Adnan's attorney has cited on point precedent on both the "interests of justice" standard and the ineffective assistance of counsel standard. It would thus be easy for Judge Welch to reopen the postconviction review proceeding under Campbell or Curry and grant Adnan relief by citing to cases like Parris W., Griffin, and Petersen. Conversely, the State has cited no on point precedent on either standard and has relegated its discussion of the heart of Adnan's motion to reopen to a single footnote that cites no precedent and makes a key argument that runs directly contrary to the rules of evidence.

___________________

*Even if Adnan gave a different account to police, it was still ineffective assistance to fail to pursue a contradictory alibi witness put forward by the defendant.

**In an interesting twist of fate, the State's RESPONSE was written by a graduate of Woodlawn High School.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/09/in-yesterdays-post-i-did-an-initial-analysis-of-theconsolidated-response-in-opposition-to-petitioners-motion-and-suppleme.html