The state Supreme Court is deciding whether lower courts were too facile in denying without an evidentiary hearing a criminal convict’s claim that his defense lawyer failed to call alibi witnesses who came forward to testify.
Oscar Porter, now serving a 40-year prison sentence, has twice been turned down by appellate courts on his postconviction-relief claim of ineffective assistance of counsel. The courts so far have treated the defense lawyer’s action as a strategic decision.
But at oral argument Tuesday, Porter’s current attorney argued that evidentiary hearings are necessary in all PCR cases alleging ineffective assistance, because the original attorney must be questioned as to why he took certain actions or decided against others.
Chief Justice Stuart Rabner asked Assistant Deputy Public Defender Lois DeJulio how Porter’s two alibi witnesses — one of them his girlfriend — would have helped his case.
DeJulio said one of the witnesses would have shown Porter was not at the scene of a gang initiation at which Rafield Ashford was killed and another man, David Veal, escaped death. Porter was convicted of the attempted murder of Veal, the state’s only witness.
Porter and Ashford had known each other since childhood, and the alibi witness would have testified that had Porter been there, Ashford would have pleaded with Porter not to hurt him.
When Rabner suggested that defense lawyer Gerald Saluti may have made a strategic decision to not call those witnesses, DeJulio said, “There is nothing in the record to suggest that.”
Justice Anne Patterson asked DeJulio what should have been done.
“An attorney is obligated to interview every witness before deciding whether the testimony is relevant,” DeJulio replied. “I’ve been told some extraordinary stories that turned out to be true. It would behoove every attorney to check out a story.”
DeJulio acknowledged that trial judges are usually faced with time constraints and are looking for ways to avoid evidentiary hearings in PCR motions. But she said time concerns should not be the only reason why hearings are denied.
“PCR should not be treated as the orphan stepchild of the criminal justice system,” DeJulio said.
Assistant Essex County Prosecutor John Anderson said the PCR judge, Superior Court Judge Michael Casale, who also presided over the trial, knew of the witnesses and was well aware of Saluti’s decision when he denied Porter’s request for an evidentiary hearing.
Porter’s girlfriend waited for several years, and even helped negotiate Porter’s surrender to police, before going to Saluti on the eve of trial and offering to be an alibi witness, Anderson said.
“Counsel rebuffed her offer to participate,” Anderson said, possibly because Saluti feared that she would be cross-examined over why she waited so long to offer the testimony.
“The alibi comes late in the game, right before the trial,” he said. “It was a strategic decision to eliminate the biased testimony from the girlfriend.”
Anderson said the court should normally defer to an attorney’s strategic moves. “Decision-making is an art,” he said.
Justice Barry Albin was skeptical, saying Anderson was engaging in a “lot of supposition.”
“We don’t know anything because you don’t have an evidentiary hearing,” he said.
Anderson said the record shows that Saluti spoke to the girlfriend, heard her story and decided it could be too risky to put it before the jury.
“There would be cross on bias,” he said. “She knew he was wanted for murder, but she didn’t tell anyone” then about an alibi.
“You have to give deference to trial counsel,” Anderson said.
The case is State v. Porter, A-91-11.