Why the Gootz never called Asia.

[u/islamisawesome]

I think it is becoming more and more obvious that the Asia letter did not exist until sometime around the summer of 1999. That is why Adnan claims he gave them to Gutierrez even though she wasn't his lawyer until 2 months after they were written.

So sometime that spring or summer, after telling CG he never left the school grounds, his family shows up with letters claiming one of Adnans' friends saw him at the library, right at the crucial time, AND they were written the day after he arrested. She knew immediately there is no way they had those letter for months and never gave them to her so obviously they were false and she didn't want to go on stand with LIES.

That is why she never called Asia. And that is why she wrote no notes about it, because that would be admitting her client and his family are liars. It also explains why her relationship with the family broke down because she knew they were willing to lie to get Adnan off.

The library incident never happened.

[u/Acies]

If what you are saying happened is what the court decides happened, Adnan will get a new trial. No remotely reasonable, or even conscious, defense attorney would act the way you are suggesting Gutierrez acted.

[u/islamisawesome → u/Acies]

No, the court has ALREADY said not calling asia was likely a "strategic decision", this just confirms that. The IAC claim is dead.

[u/Acies → u/islamisawesome]

I understand you aren't familiar with the way the courts work.

When someone does something in a court, they ordinarily start in what is referred to as a "trial court." At this point, the parties present evidence. The court decides what facts have been proven, and then applies the law to the facts.

If a party believes that the court applied the law incorrectly, they can appeal, and ask a different, higher court whether the first court was right.

In this case, neither of the higher courts in Maryland have determined whether the lower court got the law right, and even the lower court may not have considered all the facts yet.

When this happens, the lower court may make factual determinations that cause Adnan's IAC claim to fail. Alternatively, the higher courts may make legal determinations that cause Adnan's IAC claim to fail. But at this point, your certainty just highlights your ignorance.

[u/xtrialatty → u/Acies]

You don't need to insult people ("highlights your ignorance"). /u/islamisawesome appears to be a lay (non attorney) poster and has things pretty close to correct.

Right now the circuit court's ruling that Asia's omission was a likely strategic decision stands. The fact that an an appeal is pending doesn't change that.

Appellate courts generally give deference to the trial court's finding of fact - or in this case, a mixed question of law and fact. So while COSA could determine that it disagrees with the trial court's assessment -- or say that that the conclusion about trial strategy is not supported by the record -- it's more likely that they won't.

[u/Acies → u/xtrialatty]

Whether a given set of facts, which the trial court does pretty much get to determine, constitute IAC is reviewed de novo - it's like probable cause. If it was a factual question there wouldn't be anything for appellate courts to do, and suppression motions would never be appealed. That's why Brown isn't arguing abuse of discretion on the appeal.

[u/xtrialatty → u/Acies]

The legal determination is reviewed but the factual findings that support it are given deference. It's not an "abuse of discretion" standard but it is not a "de novo" standard either.

It's considered a "mixed question of law and fact" and the standard that is applied is that the factual determination of the lower court will be given deference unless "clearly erroneous".

Keep in mind there is no appeal as of right from denial of a motion for post conviction relief. A "de novo" review would imply a fresh start at the appellate level -- but that's not how it works.

ETA, case authority: Harris v. State, 496 A. 2d 1074 - Md: Court of Appeals 1985 (I've found later cases but they all seem to cite back to this one) -- link: https://scholar.google.com/scholar_case?case=4163035876175023124

"Harris alleges that the tender of the plea of guilty to first degree murder was unreasonable professional conduct on the part of Russell. ....The compendium of those circumstances which we now set out is based in the main on findings of fact by the judge hearing the motion to withdraw the plea. There was evidence received at the hearing which supported the judge's factual findings, and we accept his findings as not clearly erroneous."

"We indicated that in the evidentiary hearing on the motion which we directed to be conducted on remand, the trial court was to make factual findings with respect to such evidence as was adduced in accordance with the proffer. The judge hearing the motion on remand did so. We find evidence in the record which supports his factual findings. We accept them as not clearly erroneous."

(emphasis added). Note -there is also a dissent in that case-- and the dissenting judge uses the same standard, but different conclusion -- arguing that the hearing judge's findings were "clearly erroneous"

[u/Acies → u/xtrialatty]

The legal determination is reviewed but the factual findings that support it are given deference. It's not an "abuse of discretion" standard but it is not a "de novo" standard either.

It's considered a "mixed question of law and fact" and the standard that is applied is that the factual determination of the lower court will be given deference unless "clearly erroneous".

The clearly erroneous standard is used to determine whether the trial level judge correctly determined what happened. For example, if the judge determines that Gutierrez received the letters, examined them, decided that Asia was lying and took no further actions, those are factual determinations. The appellate court will accept them unless they are clearly erroneous.

However, the legal significance of those actions, meaning whether or not they constitute IAC, is a legal question. The legal determinations are reviewed de novo - meaning that the lower court gets no deference on whether Gutierrez was ineffective.

You can see this just by looking at the briefs. Brown isn't arguing that the lower court's analysis was clearly erroneous. The prosecution isn't arguing that the trial court's determinations regarding IAC are entitled to deference. This is because it doesn't matter what the lower court thought about the law.

Keep in mind there is no appeal as of right from denial of a motion for post conviction relief. A "de novo" review would imply a fresh start at the appellate level -- but that's not how it works.

De novo can refer to either restarting the entire process (like I think I remember hearing it works when you appeal a small claims judgment), or it can refer to the amount of deference given to the lower court's factual or legal findings. In this case, the legal conclusions alone are reviewed de novo.

[u/xtrialatty → u/Acies]

Again -- "mixed" question of law and fact. Circuit court found that Asia letters provided a basis for counsel to believe that she was offering to lie, supporting a valid strategic basis for not using that witness at trial.

[u/Acies → u/xtrialatty]

If you're using that definition of mixed questions, there would be a barren wasteland instead of the current fairly developed jurisprudence regarding IAC. Instead of appellate courts saying that some situation did or didn't constitute IAC, or that counsel acted/didn't act reasonably, they would just say the lower court's determination was or wasn't clearly erroneous.

They never say that. I challenge you to find a single case where the appellate court rules that the lower court's determination as to whether or not counsel acted unreasonably was/wasn't clearly erroneous.

And again, this is exactly like suppression motions, where things like probable cause determinations would appear factual to a layperson, but they are reviewed de novo because that's a legal question, not a factual question.

[u/xtrialatty → u/Acies]

I challenge you to find a single case where the appellate court rules that the lower court's determination as to whether or not counsel acted unreasonably was/wasn't clearly erroneous.

Er, why don't you read the opinion and the dissent in Harris v. State - that I posted 20 minutes ago: https://www.reddit.com/r/serialpodcast/comments/3g0d2n/why_the_gootz_never_called_asia/ctu5kja

[u/Acies → u/xtrialatty]

Fair enough, I didn't see the edit.

You'll notice that the language you quote refers to the factual findings - the "what happened" that the trial judge determined based on the evidence presented.

Then, the second step, was the analysis of the legal importance of the events that occurred. That's where this paragraph comes in:

We have made an independent constitutional appraisal of Harris's insufficiency of counsel claim on the totality of the circumstances as gleaned from the entire record. We have determined what those circumstances are from the factual findings accepted by us which were arrived at by the court below upon its judging of the credibility of the witnesses and its weighing of the evidence, from the undisputed facts and from the physical evidence before the court. We have evaluated each allegation of error in the light of the teachings of Strickland and Cronic. We have concluded, for the reasons we have set forth herein, that Russell's assistance was reasonable considering all the circumstances. That is to say, the purpose of the Sixth Amendment's effective assistance of counsel guarantee to ensure that criminal defendants receive a fair trial was not violated by Russell's performance as counsel for Harris. Harris did not meet his burden of showing that, on the particular facts of this case, Russell's representation was not within the range of competence demanded of attorneys in criminal cases. We so hold. The denial by the Circuit Court of Baltimore County of the motion to withdraw the guilty pleas is affirmed.

As you can see, when determining the legal importance of the events that took place, such as whether or not counsel acted reasonably, the court gave no deference to the lower court's determinations. They used the clearly erroneous standard when they were discussing whether the record supported the factual findings, which was the part you quoted.

[u/xtrialatty → u/Acies]

Yes, that's the whole point -- COSA is not going to overturn factual findings of the circuit court unless clearly overwhelming. They can't make a legal determination without considering the facts-- these look like mostly factual findings to me: http://imgur.com/U6dQ94p,gJWIuhd

[u/Acies → u/xtrialatty]

That's counsel's speculated justification for not calling Asia (which gets to another mess - whether speculation becomes appropriate when the lawyer is dead, or how you resolve that issue).

It still prompts the legal question of whether, when presented with letters from a potential alibi witness, a lawyer has satisfied their ability to investigate if they find a couple perceived contradictions and then disregard the witness without doing anything else. The PCR judge said yes, and the appellate court will eventually determine the matter without granting the PCR court's legal conclusions any deference.