Seventh Circuit Finds Defense Counsel Unreasonably Failed to Contact Additional Alibi Witness in Murder Case

My initial prediction was that Judge Welch would issue his opinion in the Adnan Syed case between June and August. With two days left in May, that would mean we are about to enter the three month period when I would expect his ruling. I’ve already written about the nine cases used by the defense to establish that Cristina Gutierrez was ineffective in failing to contact prospective alibi witness Asia McClain. Just last week, though, the Seventh Circuit issued an opinion that Judge Welch might also find useful. That opinion is Blackmon v. Williams, 2016 WL 3007212 (7th Cir. 2016).*

In Blackmon, at about 4:30 P.M.

On the Fourth of July in 2002, Tony Cox was standing outside a restaurant when he was gunned down by two men. The gunmen fled, but two women driving cars near the scene saw the murder and the shooters’ faces. Not quite two months later, both women independently chose petitioner Eric Blackmon’s photograph out of arrays, identifying him as the second shooter. They repeated those identifications at a live line-up and then again at trial. Primarily on the strength of their testimony, Blackmon was convicted of first-degree murder and sentenced to sixty years in prison.

Blackmon was convicted despite his proffered alibi, which was that he was at a barbecue at the time of the murder.

To support his alibi, he offered testimony from two witnesses, Tomeka Wash and Selena Leavy. Wash testified that on July 4, 2002, she had hosted a barbecue in the lot across the street from her home. At about 1:00 p.m., she had seen Blackmon at the barbecue firing up the grill, and by 2:00 p.m., between twenty and forty people had arrived at the picnic, with guests coming and going throughout the afternoon. About half an hour before the murder took place, Wash said, Blackmon was still at the picnic playing chess and barbecuing. She said that she stayed until 10:00 p.m. that night and never saw Blackmon leave. According to Wash, she was close to Blackmon throughout the picnic and could see him “all the time.”

Leavy testified that she attended the same barbecue, arriving about 2:45 or 3:00 p.m. When she arrived, she saw Blackmon at the barbecue cooking and she said that at approximately 4:00 p.m., Blackmon had fixed her a plate of food. She also said that between 3:00 and 4:00 or 4:30 p.m., Blackmon was at the picnic playing dominos or chess with his friends and that he never left the barbecue at any time between her arrival and her departure around 8:00 p.m. Finally, she testified that Blackmon’s car did not leave the barbecue, either: the attendees had been using its radio for music and so presumably would have noticed if someone had driven it away.

Thereafter, “[o]n cross-examination, the prosecution brought out that Wash had two felony convictions and that Leavy was Blackmon’s cousin.”

After he was convicted, Blackmon appealed, claiming that he received the ineffective assistance of counsel based upon his trial attorney’s failure to contact additional barbecue attendees who were potential alibi witnesses. After he was unsuccessful in state court, Blackmon brought a habeas claim in federal district court, with that court denying relief without an evidentiary hearing.

Blackmon then appealed to the Seventh Circuit. On appeal, the Seventh Circuit reversed. Under the reasonableness prong, the court began by noting that

On this record, the State must concede, at least for purposes of this appeal, that counsel did not interview any of the additional alibi witnesses whom Blackmon identified, but the State argues it was enough that counsel “learned the substance” of their testimony from interviews with Blackmon and his family members. Blackmon’s affidavit, which the State cites for support, says only that Blackmon informed his counsel he was at the barbecue, that plenty of people could vouch for his presence, and that he eventually provided his counsel with names, addresses, telephone numbers, and as much information as he could on potential alibi witnesses. This does not mean that counsel knew the substance of those witnesses’ testimony. Counsel had no way of knowing, for example, if any of the witnesses could definitively place Blackmon at the barbecue at 4:30 p.m. Such testimony could have provided Blackmon with a much stronger alibi. Nor does it appear that counsel or the state court considered the benefits of alibi testimony from disinterested witnesses who, as far as we know (and unlike Wash and Leavy, who did testify for Blackmon), had no family ties to Blackmon and no felony convictions. (emphasis added).

The Seventh Circuit then found that

Counsel’s failure to investigate undermines the state court’s analysis, which appears to assume that counsel knew, somehow, that the additional alibi witnesses would offer purely cumulative testimony. If counsel never learned what the witnesses would have said, he “could not possibly have made a reasonable professional judgment that their testimony would have been cumulative.”…The unreasonableness of counsel’s failure to investigate is further bolstered by the significant potential benefits of obtaining alibi testimony from witnesses unimpaired by family ties to Blackmon or prior convictions, another point the state court apparently did not consider. (emphasis added).

The court then addressed another argument by the State:

The State also argues that the individual alibi witnesses would themselves have had vulnerabilities. That’s possible, of course, but counsel could not have known those vulnerabilities without doing at least some investigation of the witnesses and the testimony they could provide. There is also no indication he considered the effect all the witnesses might have had in combination, any individual weaknesses notwithstanding. (emphasis added).

All of this led to the court’s conclusion that

the record provides no support to treat as reasonable a decision not to investigate further the available alibi witnesses from the barbecue. Blackmon’s location at 4:30 p.m. was the pivotal issue for the defense. Additional disinterested and credible alibi witnesses could have made a significant difference in the viability of Blackmon’s defense, especially given the problems with the alibi witnesses who did testify….Nothing in the record shows that investigating those witnesses would have been “fruitless or harmful,”…and the benefits could have been enormous. Just one witness might have been able to give Blackmon a true alibi. At a minimum, all of them could have bolstered his claim of being at the barbecue all afternoon. It is not reasonable strategy to leave such possible testimony unexplored under these circumstances. So even giving both counsel and the state court the substantial deference they are due under Strickland and AEDPA, respectively, the state court’s finding with respect to trial counsel’s performance was, on this record, unreasonable. (emphases added).

There are a number of important takeaways from the Seventh Circuit’s reasonableness analysis: (1) it is imperative to interview prospective alibi witnesses who aren’t encumbered by prior convictions or familial relationships with the defendant; (2) talking with other people about an alibi witness does not obviate the need to contact a prospective alibi witness herself; (3) even one witness can provide a defendant with a true alibi; and (4) counsel can’t make reasonable decisions regarding prospective alibi witnesses without first talking with them.

This then takes us to the Seventh Circuit’s prejudice analysis. The court could not complete this analysis without the testimony of the uncontacted alibi witnesses, so it remanded in order for such testimony to be received. In other words, the court did exactly what the Court of Special Appeals of Maryland did in Adnan’s case. In doing so, though, the court made some interesting observations:

The alibi witnesses’ testimony is not definitive, of course. Maybe they are honestly mistaken or even lying. It’s also possible that everyone who would testify that Blackmon was at the barbecue all afternoon missed seeing him leave during the critical window of time. No one can testify specifically to seeing him close to the critical time of 4:30 p.m., though Sheryce Crowder, the mother of Blackmon’s daughter, claimed she was near him all afternoon. All of the witnesses are vulnerable to attacks on their memory at this point. Many of them did not know until years after the barbecue that Blackmon had been arrested for murder. At the time, they would have had no reason to consider the barbecue or Blackmon’s presence at it of any particular importance.

These are fair criticisms. But to establish prejudice, Blackmon does not have to prove actual innocence; he does not even have to show that counsel’s errors more likely than not altered the outcome in his case….He must show only a reasonable likelihood that the outcome would have been different—that is, a likelihood that is “substantial, not just conceivable.”… Given the weakness of the State’s case—the complete lack of any motive, the dearth of physical evidence, and the heavy reliance on the eyewitness identifications of two strangers who saw the killers for only seconds—we conclude that on this record, it is “substantially likely that [Blackmon] could have raised at least a reasonable doubt and had a different outcome at trial” if counsel had provided adequate representation.

In other words, the Seventh Circuit is noting that there will likely be reasons to question the future testimony of the alibi witnesses but that, even with such reasons, there is a good chance that their testimony will create the reasonable likelihood that their testimony would have created reasonable doubt at trial. And that’s all it will take for Blackmon to get a new trial.

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*This is a Seventh Circuit case, which means that it’s not controlling in Maryland. But, given that the Maryland precedent (Griffin and Parris W.) is unequivocally in Adnan’s favor, this opinion by a federal court of appeal is as good as any other should Judge Welch look beyond the Terrapin state for support for his conclusions.

-CM