The State’s Brief, Take 4: The Duty to Independently Investigate & Interview Alibi Witnesses

Today, I am continuing my series of posts about ineffective assistance of counsel/alibi opinions cited by Maryland courts. One of these opinions is 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 isn’t really factually similar to Adnan’s case, but it illustrates some key principles about the need of trial counsel to interview/contact prospective alibi witnesses.

In Bryant, R.L. Bryant was convicted of armed robbery and sentenced to life imprisonment. After Bryant unsuccessfully appealed his conviction in the Texas state court system, he brought a habeas petition, claiming that he received the ineffective assistance of counsel based upon his trial attorney’s failure to interview/contact prospective alibi witnesses. The district court denied him relief, but the Fifth Circuit reversed and remanded, finding that Byrant’s trial attorney acted unreasonably in failing to interview/contact these prospective alibi witnesses.

Interestingly, the Fifth Circuit reached this conclusion despite finding that Bryant was not forthcoming with information about these prospective alibi witnesses, despite telling his attorney that he wanted to raise an alibi defense. Specifically, the Fifth Circuit credited the claim by Bryant’s attorney that “Bryant refused to divulge the names or addresses of any potential alibi witnesses” when they first met on January 12, 1983. Indeed, the Fifth Circuit concluded that Bryant’s attorney didn’t learn the names of these prospective alibi witnesses until Bryant stated these names at a pretrial hearing on March 18, 1983, three days before trial. That alone still wouldn’t have been enough for Bryant to be able to contact these witnesses, but their addresses and phone numbers were listed in police investigation notes. According to the Fifth Circuit, this was enough for Bryant’s attorney to put 2 & 2 together and contact these witnesses.

In fact, according to the court,

Even if [defense counsel] had first learned of the alibi witnesses on the first day of trial, he “nevertheless should have contacted the witnesses and made his record to the trial court as to the significance of the alibi and the fact that it was newly discovered.”

Bryant is obviously an important case because it shows the obligation of defense counsel to seek to contact/interview prospective alibi witnesses even if the client is less than forthcoming, there is late notice of such witnesses, and it takes some leg work to track down such witnesses. By way of contrast, we know from notes by Adnan’s attorney and her clerk that Adnan was forthcoming about Asia McClain months in advance of trial, with Asia’s phone number listed prominently in one of her letters.

Bryant is also important because it makes clear that an attorney must attempt to interview/contact a prospective alibi witness and not simply rely on the information provided by the client (e.g., Asia’s letters) or other sources to decide whether to call such a witness. Here are the relevant quotes by the Fifth Circuit:

-“[W]hen alibi witnesses are involved, it is unreasonable for counsel not to try to contact the witnesses and ‘ascertain whether their testimony would aid the defense.’

‘”Since [defense counsel] was aware of Bryant’s interest in pursuing an alibi defense, and was given enough information to contact Woods in California, it was incumbent upon Moore to at least try to contact Woods in California.

-Moore knew of three alibi witnesses before trial and should have made some effort to contact or interview these people in furtherance of Bryant’s defense.

-[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.”

What’s also interesting is that the Fifth Circuit concluded that the defense counsel’s duty was higher than a typical case given the severity of punishment that Bryant faced and received:

Bryant is serving a sentence of life imprisonment for his participation in the robbery, and given the seriousness of the offense and the gravity of the punishment, counsel should have tried to investigate the potential alibi witnesses.

I think this is a pretty sound argument and one that the Court of Special Appeals of Maryland should consider given that Adnan is serving life +30.

There’s one more interesting thing to note about Bryant: after finding that Bryant’s attorney acted unreasonably in failing to interview/contact these alibi witnesses, the Fifth Circuit remanded on the issue of prejudice.

The district court thereafter held a hearing and reviewed the entire record in light of the new evidence presented at the hearing. The court found that the alibi witnesses were unworthy of belief because their deposition testimony was riddled with inconsistencies and improbabilities. The court issued a meticulous memorandum opinion and order detailing its findings and conclusions rejecting Bryant’s claim of prejudice and dismissing his petition.

On appeal, the Fifth Circuit later agreed with this conclusion. Would the same thing happen if Adnan’s case were remanded so that Asia could testify? It’s possible, but it’s also possible that Asia would give consistent testimony. The point is that, as in Bryant, a remand should happen so that such a credibility determination can be made.

-CM