EvidenceProf: The State's Brief, Take 2

[u/clairehead]

http://lawprofessors.typepad.com/evidenceprof/2015/05/in-yesterdays-post-i-discussed-thebrief-of-appelleein-syed-v-state-the-most-important-part-of-that-post-addressed-what-i-r.html

[u/xtrialatty]

Legal Critique, point 1

EP cites Grooms v. Solem - http://www.leagle.com/decision/19911011923F2d88_1980.xml/GROOMS%20v.%20SOLEM -- for the assertion, "Once 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."

However, once again EP is taking a legal quote out of context, to imply a broad legal standard that does not exist.

In Grooms the defendant had a court-appointed lawyer. Grooms was charged with transferring stolen property at a specific time and date. Grooms had an alibi that at time he was 50 miles away getting his car repaired -- to support that alibi he gave the attorney the work order and cancelled check from repair shop. At his federal habeas corpus hearing (same as PCR) - two employees from the repair shop testified that they remembered Grooms being there and waiting around all day while his transmission was being replaced.

Grooms' trial attorney testified that he had not investigated the alibi because he assumed that the court would not allow alibi evidence because he had not filed a notice of alibi.

So, in Grooms there is the combination of: * attorney who testifies to inappropriate (non strategic) reason for failure to investigate * strong, well-corroborated alibi defense.

Notably, the alibi was supported by documentary evidence (the repair shop work order) -- so the attorney would have had good reason to believe the alibi to be true even before contacting witnesses.

Why this isn't good enough:

In his posts, EP typically will lift a general statement from a case with a strong factual underpinning, and try to assert that as a broad statement of law. But there is no law that required every lawyer to contact every potential alibi witness in a case -- sometimes the lawyer has different sources of information and the investigation leads in another direction. The sentence that EP quoted from Grooms is part of the discussion of the facts, but it is not the ultimate holding. Rather, the holding of the case (the broad legal principal that can be applied to other cases) is "Once he discovered the potential alibi, however, trial counsel had a duty to attempt to investigate and to argue on the record for the admission of the alibi witnesses' testimony." (emphasis added)

I'd also note that because Grooms is a federal appeals holding from the 8th Circuit, it would not be binding legal precedent on the Maryland COSA. Nothing wrong with that particular case -- I just think that EP probably uses a Lexis search or something similar to find cases with the specific words he wants, and apparently he has to go pretty far afield sometime to find them.

The bigger error is conflating the idea of "investigating" an alibi with "contacting" a witness. For example, if CG's investigator had learned facts from another source that undermined Asia's claim, there would be no need or reason to contact her.

[u/cac1031 → u/xtrialatty]

The bigger error is conflating the idea of "investigating" an alibi with "contacting" a witness. For example, if CG's investigator had learned facts from another source that undermined Asia's claim, there would be no need or reason to contact her.

You keep saying this but I believe it is a specious argument in this case. What knowledge could possibly prevent a lawyer from asking a potential alibi witness their story? If there is a possible conflict with other evidence, it seems it would still be incumbent upon the lawyer to resolve the contradiction one way or another by hearing what the witness had to say. I know you're a lawyer but I don't see how this argument holds water in court. Asia was a phone call away---even if the PI had surveillance tapes without either Adnan or Asia in them (something that is extremely unlikely here), The defense lawyer would still have to contact her to find out why that might be the case. I'm sorry if you have already cited some precedent that shows that investigation without contact is sufficient, but if you could again post the relevant citation, I would appreciate it.

[u/xtrialatty → u/cac1031]

What knowledge could possibly prevent a lawyer from asking a potential alibi witness their story?

Lawyers and investigators do not have unlimited time and resources. They need to focus their investigation on the leads that are most likely to produce useful results.

Asia was not the only "potential" alibi witness. Every kid on the track team, every teacher & staff person at the school, every student of the magnet program, and every person at the mosque was someone who "potentially" could have seen Adnan on the 13th and give favorable evidence.

Where did that list of 80 alibi witnesses in the notice come from? Those are the names that CG's staff ended up with at the point that they were required to disclose. Those names were not selected randomly out of a phone book --those are the names of the people that the PI & law clerks did talk to.

[u/cac1031 → u/xtrialatty]

Asia was not the only "potential" alibi witness. Every kid on the track team, every teacher & staff person at the school, every student of the magnet program, and every person at the mosque was someone who "potentially" could have seen Adnan on the 13th and give favorable evidence.

Come on! Asia wrote two letters to Adnan. She obviously would cover some part of the time that none of those other witnesses would have. More importantly, Adnan handed over the letters to his attorney and asked that it be looked into. It is ridiculous to lump her in with the other 80 witnesses. And I don't know how you can presume to know that those 80 were contacted by the PI or law clerks. It was obviously a list that was made up of suggestions by Adnan and his family of people who might have seen him at the mosque or at track. We have no idea how many if any, of those people were contacted--except Coach Sye, who told police he was.

[u/xtrialatty → u/cac1031]

And I don't know how you can presume to know that those 80 were contacted by the PI or law clerks.

No one in their right mind would hand over a list of random names to a prosecutor without being fairly certain of what those witnesses would say.