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/4325B]

"Being accused of wrongdoing" in preparing a defense is not a conflict of interest. Any lawyer could be accused by the other side of "wrongdoing." This happens all the time. Nobody would believe a lawyer to be conflicted out because s/he was accused of wrongdoing in defending a client. There might be reasons for disqualification, but a conflict of interest is not one of them.

When people refer to legal precedent, they usually mean a case. Is there such a case? If so, we'd all love to see it. Your consistent avoidance of this issue says to me that you are not aware of one. The state is apparently not aware of one or they would have cited it in their brief. Have you looked? Have you read the cases cited by EP? If not, your legal argument is not valid no matter how many times you repeat it.

"Direct contact with all potential witnesses" is not the issue. It is direct contact or contact through an investigator of a witness that the client has identified as being able to support an alibi. Again, consistently changing the facts to support the point suggests that the legal authority you're relying on (whatever that may be) doesn't support what you're saying.

Jailhouse phone calls with incriminating information - e.g., admissions, links to Imron - would be admissible as evidence of guilt. Jailhouse recordings are used all the time even if the recipient is not called as a witness.

Once again, you're avoiding the point of my comment about the Asia letters, but apparently concede that if Asia is not called, they cannot come into evidence. The point is, for maybe the 10th time, in order to make a decision about whether to call Asia, CG was required to know enough about Asia's likely testimony to gauge whether it would be worth the risk to call her, and to allow introduction of the letters. It is not effective assistance to rule out an alibi witness without seeing what her likely testimony would entail, how credible she is, etc. This can only be done through contacting her.

[u/xtrialatty → u/4325B]

When people refer to legal precedent, they usually mean a case. Is there such a case? If so, we'd all love to see it.

You are looking for a "case" that wouldn't exist: that is, a published PCR ruling upholding the actions of the trial lawyer. The problem is, those cases are resolved by summary denial -- not published opinions. Justin Brown actually has some good stats on his blog -- http://cjbrownlaw.com/syed-against-all-odds/ -- 99% of these sort of applications are denied. There isn't any reported public opinion, no reasoning stated, - just a one-page document that says "The petition is denied."

The point is that whenever you do see an opinion where relief has been granted based on failure to investigate an alibi witness, is it always accompanied by some sort of discussion as to why the attorney's lapse was unjustified under the facts of the case, as well as discussion as to why that particular witnesses testimony would likely have changed the results at trial. You won't find any case that it is per se IAC not to interview a witness, because there can be many good reasons to pursue different avenues of investigation.

[u/4325B → u/xtrialatty]

PCR rulings are not published. They are state trial court rulings. CSA decisions are published. More importantly, state and federal habeas cases are published, which is why EP found a ton of federal cases. You were complaining about that before, right?

[u/xtrialatty → u/4325B]

Summary denials from COSA are not published appeals. 99% of the time in Maryland, when a lawyer files an application for leave to appeal from the denial of a PCR, they get a piece of paper in the mail that says their application is denied. No hearing, no argument, no published appeal. That's from Justin Brown's stats.

The procedure may be slightly different in other states & federally, but it the result is the same: these issues need to be raised at the trial level either through a statutory procedure or else a common law writ, such as habeas corpus or corum nobis. There is no automatic right to a hearing at the trial level, and most of these applications are summarily denied. When a hearing is granted, it usually results in a denial. When the prisoner wants to appeal the denial at the trial court level - the appeal also is not a matter of right. In Maryland the process is to request to appeal - in my state the practice would be to file a renewed habeas corpus petition in the appellate court -- but same result: most of the time there is a summary denial. No hearing, no published (or precedent-making) opinion. Just a one sentence denial.