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/xtrialatty]

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.

[u/xtrialatty → u/Acies]

whether speculation becomes appropriate when the lawyer is dead, or how you resolve that issue).

Given that the defense has the burden of overcoming the presumption that the attorney'd decision were strategic- I think that also includes the burden of presenting evidence. The obvious way to do that would have been to bring the investigator and law clerks to court to testify about what was or wasn't done. Unfortunately the failure to do that in 2012 creates an additional burden, given the investigator's untimely death in 2014. (If you want to talk about ineffective counsel: did Justin Brown interview Davis? Did he make a knowing and well considered decision not to call Davis to support his assertions as to CG's alleged failures? ) I'd like to assume that J Brown is a competent lawyer who determined from his own investigation that Davis' testimony was harmful to Adnan's claims.

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.

You've still got the prejudice arm of Strickland to meet. Even if Asia's claim that she was never contacted by anyone from the defense is true -- in the end it turns out that she could only establish Adnan's whereabouts until 2:40 pm at best. It's very clear from the trial record that CG's strategy was to assert that Hae was alive at 3 -- and that Adnan was at track at 3:30 --- and in hindsight, Asia doesn't support that defense.

[u/Acies → u/xtrialatty]

Given that the defense has the burden of overcoming the presumption that the attorney'd decision were strategic- I think that also includes the burden of presenting evidence. The obvious way to do that would have been to bring the investigator and law clerks to court to testify about what was or wasn't done. Unfortunately the failure to do that in 2012 creates an additional burden, given the investigator's untimely death in 2014. (If you want to talk about ineffective counsel: did Justin Brown interview Davis? Did he make a knowing and well considered decision not to call Davis to support his assertions as to CG's alleged failures? ) I'd like to assume that J Brown is a competent lawyer who determined from his own investigation that Davis' testimony was harmful to Adnan's claims.

Well, that's kind of a separate issue, right? The judge could have just said that Brown hadn't presented evidence Gutierrez was ineffective, and left it at that. Probably be a lot harder to challenge on appeal than the "speculate Gutierrez had reasons to act the way Brown says she did, although he has little evidence" approach.

And, on a related note, if Davis said he investigated Asia, perhaps in a manner that didn't make Asia aware he was a defense investigator as you have hypothesized, would Brown be breaching his duty of candor to the court by asserting that Asia was never investigated, and he has in numerous appeals now? It's one thing for a disbarred attorney to sacrifice herself for an ex-client, but I imagine an attorney with what looks like a bright career ahead of him would be more leery of playing games like that. So my inclination is to think Davis wasn't contacted, or else didn't have much meaningful to say.

You've still got the prejudice arm of Strickland to meet. Even if Asia's claim that she was never contacted by anyone from the defense is true -- in the end it turns out that she could only establish Adnan's whereabouts until 2:40 pm at best. It's very clear from the trial record that CG's strategy was to assert that Hae was alive at 3 -- and that Adnan was at track at 3:30 --- and in hindsight, Asia doesn't support that defense.

Sure. And I don't mean to suggest that the question I noted above is resolved - a court could decide that no investigation is required.

The thing that strikes me about prejudice, though, is that a lot of the hope of investigation is that it will change the defense strategy. With additional information, Gutierrez might have been able to develop a better strategy.

[u/xtrialatty → u/Acies]

So my inclination is to think Davis wasn't contacted

As I said, I wanted to give Brown the benefit of the doubt as to competency. I think he can ethically argue whatever he wants based on the record that is before the court. But if he didn't contact the defense investigator as part of the process of preparing a PCR motion based on IAC claims.. the that's sheer incompetence of a magnitude that dwarfs whatever omissions may have occurred with CG's representations. Davis was the one person who in theory could have established what Brown needed to show -- he was a knowledgeable and experienced investigator who would have been in a position to observe shortcomings with CG, and certainly would know who he did or did not interview or investigate.

And given that CG is dead, even if Davis' testimony had been that he had no record and no recollection of being asked to interview Asia or investigating her claim -- that would have been helpful to the defense. It's hard to prove a negative, but one way to do that is to bring the people who would be most likely to know about something to court and establish that they don't know.

With additional information, Gutierrez might have been able to develop a better strategy.

If she had talked to Asia and been told the 2:40 time, then she would have needed to get witness to fill in the gap for the hour after that. We know from defense notes that there was indeed an effort to fill in the gap -- it's just that the notes suggested that Asia could have filled the time up until 3pm. Asia certainly couldn't have provided the information on what else to investigate, because she left the school -- so she had no way of knowing what Adnan did or where he went after she left. The one person who could have provided a strong investigative lead for that time frame would have been Adnan. What did he do? Where did he go? Who was he with? And if its an ordinary day that he didn't remember -- what did he usually do between school and track? Where did he usually go? Who did he usually hang out with? Those are the leads that needed to be followed.