The State’s Brief, Take 5: More on the Duty to Independently Investigate & Interview Alibi Witnesses

Back in January, I started to compile a list of cases from around the country in which courts had found that it was (or could be) unreasonable for attorneys to fail to contact prospective alibi witnesses. These cases all had a common origin: Grooms v. Solem,  923 F.2d 88, 90 (8th Cir. 1991), which stands for the proposition 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.” 

Yesterday, I posted about the opinion of the Bryant v. Scott, 28 F.3d 1411 (5th Cir.1994), which was cited with approval by the Court of Special Appeals of Maryland (the same court handling Adnan’s appeal) in Mendes v. State, 806 A.2d 370 (Md.App. 2002). Bryant contains similar language that is perhaps even more favorable to criminal defendants claiming that they received the ineffective assistance of counsel:

“[A]n attorney must engage in a reasonable amount of pretrial investigation and ‘at a minimum,…interview potential witnesses and…make an independent investigation of the facts and circumstances in the case.”

Courts in 76 cases from around the country have cited this language. Today, let’s take a look at one of these cases in which the attorney claimed that he failed to contact alibi witnesses because he thought that they would perjure themselves.

That case is Johns v. State, 926 So.2d 188 (Miss. 2006). In Johns, Olive Johns was charged with shooting into a vehicle and aggravated assault; he was convicted of the latter crime. After he was convicted, Johns brought a petition for postconviction relief, claiming that his attorney, John Jackson, was ineffective based upon failing to interview prospective alibi witnesses. The PCR court denied the petition, finding that the Jackson failed to contact these witnesses due to the fear that they would perjure themselves, and the Court of Appeals agreed.  Thereafter, however, the Supreme Court of Mississippi granted Johns relief, ruling as follows:

Johns’s primary argument was that Jackson failed to interview the alibi witnesses that he provided Jackson before trial, which was, in effect, a claim that Jackson failed to perform the proper pre-trial investigation. “[A]t a minimum, counsel has a duty to interview potential witnesses and to make independent investigation of the facts and circumstances of the case.”…The decision not to interview witnesses, particularly your own, cannot be considered an effective strategic choice. When counsel makes choices of which witnesses to use or not to use, those choices must be based on counsel’s proper investigation. Counsel’s minimum duty is to interview potential witnesses and make an independent investigation of the facts and circumstances of the case….

Jackson did not meet the minimum duty required of him. Both Johns and his father agree Jackson was given the names and addresses of the alibi witnesses and was asked to contact those witnesses. In fact, they made several attempts to press him to do so. Johns testified Jackson told him the witnesses were not important, even though they remembered seeing Johns and his young daughter very close to the time the crime was committed. The Court of Appeals reasoned that “Johns’s attorney indicated that he had a very good reason for declining to interview these particular witnesses….he believed the witnesses testimony was perjured testimony, based on the information Johns gave his attorney.”…There is a question as to how Jackson could have believed the witnesses testimony was perjured when he never talked to them, and the only information Johns gave him was the names and addresses.

Jackson claims he talked to two people that Johns brought to him, but he could not remember who they were. Neither of the Johns’ ever says that they brought any witnesses to Jackson, only that they provided him with the names and addresses. Jackson testified he believed those two people were of no help and were going to provide perjured testimony. Based on that, he did not speak to any more witnesses. Those two witnesses had absolutely nothing to do with the three alibi witnesses. In fact, Jackson was unable to identify those alleged witnesses.

This is pretty strong precedent standing for the proposition that an attorney must seek to interview prospective alibi witnesses. If we were to consider this precedent in the context of the Adnan Syed case, you might on the one hand say that defense counsel had Asia McClain’s letters as opposed to just her name and phone number, which would allow her to draw some preliminary conclusions. On the other hand, Johns clearly stands for the proposition that “[C]ounsel’s minimum duty is to interview potential witnesses and make an independent investigation of the facts and circumstances of the case.” Indeed, as you can see above, the court actually italicized the word “independent.”

Thus, the line of cases flowing from Bryant v. Scott supports the conclusion that an attorney cannot simply rely on the information supplied by her client; instead, at a minimum, she must make some independent investigation that includes interviewing prospective witnesses.

-CM