In its cert petition in the Adnan Syed case, the State picked up on Judge Graeff's citation to Broadnax v. State in her dissent, but I just realized that her citation was very...creative.
Quote 1: “It is extremely difficult, if not impossible, to prove a claim of ineffective assistance of counsel without questioning counsel about the specific claim, especially when the claim is based on specific actions, or inactions, of counsel that occurred outside the record.”
She then follows w/"This is because '[c]ounsel’s competence...is presumed, and the [petitioner] must rebut this presumption by proving that his attorney’s representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.'"
But there's a sentence in between these two sentences in Broadnax: "Indeed, 'trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.'"
The Broadnax court is citing to a case named Rylander, which explains the holding: "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective."
In other words, if trial counsel is still ALIVE, failure to call him/her makes it difficult, if not impossible, to prove ineffective assistance.
That makes a lot of sense, but there's no reason to extend that logic to cases in which trial counsel is deceased. And courts haven't done so.
See, e.g., Towns v. State: "Having failed to even speak with Richard, it cannot be said that Towns's counsel's decision not to call him was reasonable." 1/2 mied.uscourts.gov/PDFFIles/99-75…
"Although Towns' trial counsel is now deceased and therefore unable to offer an explanation for his actions, the record simply fails to reveal any legitimate reason for why Towns's counsel made the decision not speak to Richard." 2/2
This is the exact logic applied by Judge Welch & the COSA majority: Although Gutierrez is now deceased and can't explain her failure to contact Asia McClain, the record fails to reveal any legitimate reason(s) for her decision not to speak to her.
