5th Circuit: “[A]t a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation”

Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985), is another in a long line of cases establishing a near per se duty for defense counsel to interview alibi witnesses brought to their attention by defendants. According to the Fifth Circuit,

Although the scope of the required investigation is a function of the “number of issues in the case, the relative complexity of those issues, the strength of the government’s case and the overall strategy of trial counsel,” this circuit has recognized that, at a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case. This duty is reflected in the American Bar Association Standards for Criminal Justice, a proper guide for determining what is reasonable under the circumstances. These specific obligations inherent in counsel’s duty to investigate must temper the amount of deference we give Burdine’s on-the-spot actions in evaluating his performance.

So, what were the facts in Nealy?

In Nealy, 

Leo Davis was murdered in his grocery store located in Clay County, Mississippi, in 1976….

After the police discovered Davis’ body, they arrested Wiley Ewing and charged him with Davis’ murder. Ewing confessed  to the killing, and assisted the police in recovering a pair of gloves, a knife, and a sawed-off shotgun used in the murder. Ewing also admitted taking some money from Davis’ cash register and two $100 bills from his billfold. Ewing stated that he had travelled to and from Davis’ store in a car borrowed from Nealy, and that he had hidden the $100 bills in the hubcaps of Nealy’s car. Nealy was present when Ewing was arrested. He allowed the police to search his car, and two $100 bills were found inside a hubcap. Ewing did not implicate anyone else in the crime, and Nealy was not arrested at this time.

Several days later, however, after conferring with his attorney, Ewing gave a statement to the police in which he again confessed to the crime, but in addition, implicated both Nealy and T.L. Cunningham. According to Ewing, the three men had visited the home of Dorothy Belk where they stayed for five to fifteen minutes. From there, they set out in Nealy’s car, and, after beginning their ride, decided to rob Davis’ store. They parked approximately a quarter-mile from the store and walked to it, arriving between 8:00 and 9:00 p.m. Cunningham entered the store first in order to distract Davis. Ewing and Nealy then came in, and Nealy struck Davis across the face with the shotgun. After Davis fell to the floor, Ewing began to stab him, and, in the course of the melee, Nealy again struck Davis with the gun, Cunningham kicked him, and Ewing cut his throat.

This is a fairly detailed confession that seems to implicate not only Ewing but also Nealy and Cunngingham. Nealy, however, claimed that it was a lie. Nealy

claimed that the three men (Ewing, Cunningham, and he) went to Dorothy Belk’s home shortly after 8:00 p.m. and stayed for fifteen or thirty minutes. They left about 8:30 and went to Avant’s pool hall, arriving at approximately 9:00. He testified that other people were at Avant’s when he arrived, including Richard and “Duck” Jones. He stated that the three men and the two Jones brothers left together shortly after 9:20, and that, after he drove Cunningham and the Joneses home, he drove himself home and lent Ewing his car. He denied complicity in the crime.

But neither Belk nor the Jones brother testified at trial, and Nealy was ultimately convicted of murder. Nealy subsequently appealed, claiming that his trial counsel failed to contact these alibi witnesses despite the fact that Nealy had given him their names. This lead the Fifth Circuit to note the usual deference given to decisions by trial counsel, followed by the block quote that led this article.

The court did recognize that there can be specific circumstances where failure to interview an alibi witness is not ineffective, such as when “the defendant c[an] point to no specific evidence that would have been uncovered by a more thorough investigation.” But, the court found that, in this case,

Nealy has identified specific missing testimony, and has argued that there was no reason for Burdine not to have at least attempted to locate the Jones brothers or to contact Belk. Burdine did not testify that such efforts would have been fruitless, nor did he claim that the decision not to investigate was part of a calculated trial strategy. He simply failed to make the effort to investigate. Burdine, therefore, “did not choose, strategically or otherwise, to pursue one line of defense over another. Instead, [he] simply abdicated his responsibility to advocate his client’s cause.” Burdine’s failure to investigate thus resulted in a “factual vacuum” and cannot withstand sixth amendment scrutiny.

-CM