Florida Court Orders Hearing on Whether Defense Counsel Was Ineffective for Failing to Contact Alibi Witnesses

It’s an issue I researched extensively in connection with the Adnan Syed case: When does defense counsel’s failure to contact alibi witnesses constitute ineffective assistance. The latest example can be found in the recent opinion of the District Court of Appeal of Florida, Fourth District, in Emory v. State, 2025 WL 1318061 (Fla. App. 4th 2025).

In Emory, Akeem Emory was convicted of robbery with a firearm and possession of a firearm by a convicted felon.

The evidence showed that three men robbed a gas station. Each of them had their faces partially covered and one pointed a gun at the cashier. The cashier believed he recognized the gunman and identified him as Defendant. But the cashier also expressed some second thoughts about the identification.

At trial, “[r]ecorded jail calls between Defendant and his girlfriend referenced an alibi, and the girlfriend testified that Defendant was at his cousin’s house the night of the robbery. However, she was not there the entire night and could not provide a complete alibi.”

As such, on appeal, Emory claimed that defense counsel “should have investigated and called two alibi witnesses. According to Defendant, both witnesses could testify that Defendant was at his cousin’s house playing video games at the time of the robbery.” In reversing the lower court’s denial of relief and remanding for an evidentiary hearing, the court ruled as follows:

The State suggested reasons to question the witnesses’ credibility, and argued defense counsel’s failure to investigate and call the witnesses was a tactical decision. However, determining whether these witnesses are credible and whether the failure to call them is a reasonable tactical decision requires an evidentiary hearing….

Accordingly, we reverse the denial of claim three and remand for an evidentiary hearing. The court’s summary denial of the remaining claims is affirmed.

-CM