The State’s Brief, Take 2: The Failure to Contact/Call an Alibi Witness Based on Conflicts with the Defendant’s Own Alibi

In yesterday’s post, I discussed the Brief of Appellee in Syed v. State. The most important part of that post addressed what I regard to be the key holding of the Baltimore City Circuit Court in denying Adnan’s claim of ineffective assistance of counsel based upon his trial attorney’s failure to contact potential alibi witness Asia McClain: that Asia’s story about seeing Adnan at the library until 2:40 P.M. on January 13, 1999 contradicted Adnan’s “own stated alibi that he remained on the school campus from 2:15 p.m. to 3:30 p.m.” (page 11). In yesterday’s post, I detailed how Adnan never claimed that he remained on the school campus from 2:15 to 3:30 P.M. on January 13th.

Let’s assume for the sake of argument, however, that Adnan did claim that he remained on the school campus from 2:15 to 3:30 P.M. on January 13, 1999. Would that justify the decision of Adnan’s trial attorney not to contact Asia McClain? According to a key case that has been cited by both the Court of Special Appeals of Maryland and the Fourth Circuit, the clear answer is “no.”

I’ve cited to Grooms v. Solem a number of times on the blog. It’s the source of the following legal principle that has been cited by courts across the country: “Once 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.” Both the Court of Appeals of Maryland and the Fourth Circuit have cited to Grooms in finding that defendants received the ineffective assistance of counsel based upon the failure to contact/call alibi witnesses. Grooms also seems to support the proposition that Adnan’s trial attorney was per se ineffective in failing to contact Asia McClain.

That said, the Baltimore City Circuit Court gave three reasons for why Adnan’s trial attorney could have reasonably decided not to contact Asia McClain. As I noted yesterday, the strongest reason given by the court was that Asia contradicted Adnan’s own stated alibi. That decision, however, seems to contradict clear precedent to the contrary.

In Grooms, the court cited two cases as support for the proposition that an attorney must make some effort to contact a potential alibi witness identified by a defendant. One of these cases was Lawrence v. Armontrout, 900 F.2d 127 (8th Cir. 1990). Armontrout, however, actually wasn’t a case about failing to contact an alibi witness.

In Armontrout, the defendant was charged with murder and told his attorney that his girlfriend would provide an alibi. The defendant’s attorney then interviewed the girlfriend, “but decided not to use her as a witness because her version of the alibi differed somewhat from [the defendant’s]” version. At trial, defense counsel raised a misidentification defense, but the defendant was ultimately convicted of murder. After he was convicted, the defendant appealed, claiming that he received the ineffective assistance of counsel based upon his attorney’s failure to call his girlfriend as an alibi witness.

In finding that trial counsel acted unreasonably, the Eighth Circuit concluded that

trial counsel’s assertion that she intended to defend [the defendant] on a theory of misidentification does not excuse her failure to investigate all potential alibi witnesses. Testimony from alibi witnesses would bolster rather than detract from a defense of misidentification by negating the inference raised by an eyewitness identification that the defendant had been present at the scene of the crime. A tactical decision to rely on a misidentification defense in no way forecloses the concurrent use of alibi witnesses.

Although trial counsel stated at the 27.26 hearing that [the girlfriend]’s version of what she and [the defendant] had done on the evening of the murders was “similar [to] but different” from the alibi [the defendant] gave her, she acknowledged that [the girlfriend] was a willing and supportive alibi witness. The record does not indicate what the differences between their respective versions were. Because she did not intend to have [the defendant] testify at trial, however, there was little danger of exposing the jury to conflicting alibis. 

As I noted above, Armontrout has been cited by the Court of Special Appeals of Maryland, the court currently handling Adnan’s appeal. It has actually cited the case twice, both times to support a finding that an attorney acted unreasonably by failing to pursue/present a defense that bolstered rather than detracted from the defendant’s defense: Evans v. State, 827 A.2d 157, 166 (Md.App. 2003), and State v. Johnson, 794 A.2d 654, 666 (Md.App. 2002). Perhaps more importantly, the Fourth Circuit cited Armontrout twice in support of its finding of ineffective assistance based on failure to contact alibi witnesses in the key case, Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992).

So, what does Armontrout tell us about Adnan’s case? Could Asia testimony have hurt Adnan’s case? No, because Adnan did not have any witnesses testify concerning his whereabouts between 2:15 and 3:30 P.M. Moreover, as in Armontrout, because Adnan’s trial attorney did not intend to have Adnan testify, there was little/no danger of exposing the jury to conflicting alibis. Finally, even if we are acknowledging that Adnan ever said he remained on the school campus between the end of school and the start of track practice, that at worst makes Asia’s version “similar [to] but different from the alibi [Adnan] gave to” defense counsel. The Eighth Circuit doesn’t note the differences between the stories by the defendant and his girlfriend in Armontrout, but it’s hard to imagine those differences being less significant than the .01 miles between Woodlawn High School and the Woodlawn Public Library.

Simply put, even if Adnan and Asia had somewhat conflicting versions of his alibi, the differences between their two versions shouldn’t have justified defense counsel’s failure to contact Asia.

-CM