EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, January 14, 2015

The Serial Podcast: What I Think Adnan's Attorney Told Him About Asia & How it Could Lead to a New Trial

I've posted 29 entries Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee, on January 13, 1999. These posts are collected in my Legal Companion to the Serial Podcast. One of the issues that Adnan raised in his Petition for Post-Conviction Relief was that his trial counsel, Cristina Gutierrez, was ineffective in failing to contact/call Asia McClain as an alibi witness. Asia wrote Adnan two letters indicating that she saw Adnan at the Woodlawn Library of January 13, 1999. According to Adnan, he gave these letters to Gutierrez but was later told by her that "they didn’t check out (Asia had the wrong date or something)." In this post, I will explain why I think that this is exactly what Adnan was told and how it could lead to him getting a new trial.

Why do I think that Gutierrez told Adnan that Asia's letters didn't check out? Let's start by casting doubt on the two most obvious alternatives.

Alternative #1: Adnan told Gutierrez (or her clerk) that he didn't see Asia on 1/13

Why don't I think this is a likely alternative? We know from Episode 1 that, after Adnan told Gutierrez about Asia, Gutierrez wrote the following note: "Asia plus boyfriend saw him in library 2:15 to 3:15." I have three reasons for rejecting the proposition that Adnan told Gutierrez at this meeting that he didn't see Asia on 1/13: First, the Asia letters don't have times. Does it make any sense for Adnan to tell Gutierrez that he didn't see Asia on 1/13 and yet give her a time frame of 2:15-3:15? I don't think so. Second, there's no note from Gutierrez indicating that Adnan disagreed with Asia's letters. Third, we know that Adnan followed up on Asia when Gutierrez sent her law clerk to visit him in prison on July 13, 1999. Why would Adnan follow up on Asia if he had already told Gutierrez he didn't see her on 1/13? He wouldn't.

This takes us to July 13th. The law clerk's notes for his meeting with Adnan are appended to Adnan's Petition for Post-Conviction Relief (page 22). Those notes state in relevant part that Asia "saw [Adnan] in the library @ 3:00." I have two primary reasons for rejecting the proposition that Adnan told the law clerk at this meeting that he didn't see Asia on 1/13: First, Asia letters don't have times. Also, Asia's affidavit, written after Adnan was convicted, states that she saw Adnan between 2:20 and 2:40 at the library. This means that the reference to 3:00 in the clerk's note likely had to come from Adnan. I don't see any plausible scenario in which Adnan brings up 3:00 to the clerk and yet tells him that he didn't see Asia in the library on 1/13. Second, there's no note from the clerk indicating that Adnan disagreed with Asia's letters.

Finally, we have the possibility that Adnan told Gutierrez or someone on her team at some later point in time that he didn't see Asia in the library on 1/13. I have two reasons for rejecting this proposition. First, to accept it, we'd have to believe that Adnan (1) told Gutierrez that Asia saw him from 2:15-3:15, (2) later told her law clerk that she saw him at 3:00, and (3) then told someone on Gutierrez's team that he didn't see Asia on 1/13. I just don't see how Adnan goes from (1) to (2) to (3). 

Second, if Adnan really did say that he didn't see Asia on 1/13, why would he later tell Rabia (an attorney and the sister of his best friend) that he was told Asia's letters didn't check out? We know the aftermath of this from Adnan's Petition for Post-Conviction Relief: his parents and he tried to get into touch with Gutierrez for weeks so that they could tell her to contact Asia and include her as part of a Motion for New Trial. If Adnan had told Gutierrez that he didn't see Asia on 1/13, why would he send himself and his family on this wild goose chase? It doesn't make any sense to me. If Gutierrez had responded, she simply would have said that Adnan himself told her that he didn't see Asia on 1/13.

Is it possible that Adnan told Gutierrez or someone on her team that he didn't see Asia on 1/13? I guess, but it's not something that's very likely.

Alternative #2 Gutierrez said something else or nothing about Asia

In this alternative, we have two options: (1) Gutierrez said nothing to Adnan about Asia after July 13th; or (2) Gutierrez told Adnan something other than "the Asia letters didn't check out." (e.g., "I think Asia is lying."). Under this alternative, we have two subalternatives. 

Subalternative 1: Adnan's memory about what he was/wasn't told about Asia is accurate

In this subalternative, Adnan accurately remembers (1) that no one talked to him about Asia after July 13th; or (2) that he was given some explanation other than "the Asia letters didn't check out." In this case, Adnan is lying. I have two problems with this subalternative: First, I see no great reason for Adnan to lie to Rabia about this fact. Second, if I had to come up with a reason for Adnan lying, it would be to try to get a new trial. But if Adnan wants a new trial, the absolute worst thing he can tell Rabia is that he was told "the Asia letters didn't check out." 

If Adnan said, "My lawyer said she didn't trust Asia," that would give Rabia a reason to find Asia to see whether she found her trustworthy. If Adnan said, "My lawyer didn't think Asia was important," that would give Rabia a reason to find Asia to see whether she thought she was important. But Adnan said that he was told "the Asia letters didn't check out." This would lead most people to conclude that Gutierrez did indeed check into the Asia letters and that they did not check out. Luckily for Adnan, Rabia is not most people. Instead, Rabia did check into Asia and learned that she had never been contacted by any attorney.

Simply put, I see no good reason for Adnan to say that he was told "the Asia letters didn't check out" unless this is what he was told, or unless....

Subalternative 2: Adnan is mistaken about what he was/wasn't told about Asia

There are two possibilities here. The first is that Asia never came up after July 13th. I have two primary reasons for rejecting this proposition. First, it's a lot easier to misremember what you're told than to mistakenly remember a conversation that never happened. It's tough to believe that Adnan remembered being told "the Asia letters didn't check out" if he was actually told nothing at all after July 13th. Second, I find it hard to believe: (1) Gutierrez never brought up Asia again; AND (2) Adnan never brought up Asia again. 

As I noted in a prior post, the law clerk's notes from his July 13th meeting with Adnan are pretty short, and Asia was pretty much the only significant thing they discussed. This was also Adnan's second time bringing up Asia. I therefore feel like this is something that Gutierrez knew she had to address with Adnan. Then again, based on what we know about Gutierrez, I wouldn't be shocked if she forgot to bring up Asia again.

That still leaves us with Adnan. We know he brought up Asia at least twice. We know he assigned times for seeing Asia (2:15-3:15 and then 3:00) when those times didn't exist in Asia's letters. I also assume that Adnan knew that this 2:15 (school ends)-3:15 (Hae was supposed to pick up her cousin) time frame was key to his case. I just can't imagine that Adnan would have dropped the Asia issue after bringing her up twice. This makes me think that Adnan was later told something about Asia. 

This takes us to the second possibility. This is the possibility that Adnan was later told something about Asia but mistakenly thought after trial that he was told "the Asia letters didn't check out." This is probably the most viable alternative to my theory, but it still has serious issues. The main issue is that, to believe it, you have to believe: (1) Gutierrez thought that this other explanation would work; and (2) the other explanation did work.

Here are some possible other explanations that Gutierrez might have given to Adnan: (1) I read Asia's letters, and I think she's lying; (2) I read Asia's letters, and I think she'd be torn apart on cross-examination; and (3) I read Asia's letters, and I think she might actually hurt your case. There's one common thread in each of these explanations: Gutierrez is relying solely on Asia's letters. I don't see how Gutierrez could think this would placate a client who has brought up a potential alibi witness twice and given both a time range and then a specific time when he thinks he saw her. 

I also don't see how Adnan would accept any of these explanations. Here's what I imagine would be the response of most anyone in these circumstances: "I understand your position, but I want you to talk to her so you can make sure. This is my life on the line, and if there's any chance she saw me at the library on the 13th, we need to at least pursue it." Indeed, this is what Adnan claims in his current Application for Leave to Appeal (page 12): "Petitioner concedes that even a phone call would have been enough."

This takes me to my last point on the subalternative, which is that, to believe it, you also have to believe that Adnan misremembered what Gutierrez told him. Given that Adnan's memory of what happened on January 13th is pretty spotty, that might not be too difficult to believe. But consider an alternate, disturbing possibility.

This possibility is the possibility that Adnan is innocent and actually did have a decent recollection of Janaury 13, 1999 in the summer of 1999. Sure, he didn't remember everything, but he had some basic understanding of what happened that day. And part of his recollection was that he thought he saw Asia McClain at the Woodlawn Library sometime between 2:15-3:15, possibly at about 3:00. He tells this to the defense team twice, but then his attorney comes back and says that the Asia letters "didn’t check out (Asia had the wrong date or something)."

Put yourself in the shoes of a teenager wrongfully charged with murder and trying his best to piece together the events of January 13, 1999. All of a sudden, you're told that one event you felt pretty good about remembering actually happened on a different day. I have to imagine that this would do a number on your memory. If we think that Adnan is innocent and that Gutierrez lied to him about determining that the Asia letters didn't check out, Gutierrez did a lot more than deprive Adnan of his innocence; she also deprived him of his memory.

My theory: Gutierrez lied to Adnan about Asia

My theory is that Gutierrez indeed did lie to Adnan about Asia by saying that she contacted her and that her letters didn't check out. It seems to make the most sense. First, it's the explanation given by Adnan just after he's convicted. Of course, it's true that Adnan has demonstrated that he has some issues with his memory. That said, you have to think Gutierrez's statement about Asia was pretty memorable. This was someone whom Adnan likely recognized as a key alibi witness, someone Adnan brought up at least twice to the defense team. When Adnan was told that Asia wasn't going to work out (for whatever reason), you have to think that Adnan was devastated. I think there's a pretty solid chance that Adnan remembers this conversation.

Second, this explanation is consistent with what a "record number" of clients alleged that Gutierrez did in their cases during a similar time frame. I've previously cited to this article about Gutierrez's disbarment. Until today, however, I hadn't noticed this follow-up article

A record number of complaints from people who say they were cheated by one of Baltimore's best-known criminal defense lawyers have poured into the state fund that reimburses victims of lawyer misconduct.

As of yesterday, 20 people had lodged claims against M. Cristina Gutierrez with the Clients' Security Trust Fund, more than for any other lawyer. Gutierrez was disbarred May 24....

When investigators reviewed her financial records, they found that client money that should have been kept in a trust account was missing. At the same time, clients began complaining that they had paid Gutierrez for work she never did, said Melvin Hirshman, bar counsel to the commission.

You can easily see this playing out in Adnan's case. Adnan brings up Asia twice. Gutierrez doesn't want to spend the time to fully investigate Asia. Maybe she doesn't feel physically up for it. Maybe she wants to pocket the money. What's the best way to stop Adnan from bringing up Asia again? Tell him that you checked into the Asia letters and that they didn't check out. Your teenage client is likely to take your word for it.

So, let's assume that I'm right about what Gutierrez told Adnan. Why is this important? In a prior post, I noted that Adnan's best shot at a new trial was having the clerk who talked to him in prison testify that he gave his notes to Gutierrez and that Gutierrez responded by saying that Asia was someone she needed to investigate. But, if I'm right, Gutierrez might have also told the law clerk something else that would entitle Adnan to a new trial: "I already checked into Asia, and she didn't check out."

Moreover, Gutierrez actually could have told the clerk that she didn't think Asia was a good witness, and Adnan still might be able to get a new trial. How? If anyone who worked with Gutierrez back in 1999/2000 can testify (1) that Gutierrez told him/her that Asia didn't check out; or (2) that they were present when Gutierrez told Adnan that Asia didn't check out.

You see, in this scenario, we don't care why Gutierrez decided not to contact Asia. All that we care about is that she lied to Adnan about contacting her. An attorney can make a strategic decision not to call an alibi witness; what that attorney can't do is lie to her client about contacting that alibi witness and concluding that she didn't check out. That deprives the client of informed consent and takes away his ability to hire a new attorney who might think differently. There are plenty of cases to illustrate this point, including Ajuste v. State, 12 So.3d 305, 306 (Fla.App. 4th 2009):

In ground 2(b) of appellant's motion he stated, under penalty of perjury, that his attorney "committed fraud on the court when...he told the court that he had just phoned and spoken with [appellant's alibi witness] but her recollection was [that] she had no idea what time [she dropped appellant off on the night of the crime.]" Based upon his counsel's representations that he had spoken to the witness, and the witness essentially could not confirm the alibi, appellant elected not to call her as a witness. Appellant states in his motion that his counsel never contacted the witness and lied to the court about contacting her during the trial. Nothing in the record conclusively refutes this sworn allegation. Together with the allegations of the substance of her testimony, we conclude that it is legally sufficient to state a claim of ineffective assistance.

And there you have it. If anyone who worked for Gutierrez in 1999-2000 can testify that they heard Gutierrez say she checked into Asia McClain, that's a new trial based on ineffective assistance of counsel. Maybe it's the clerk who interviewed Adnan in prison. I now have his name. I won't post it here, but it's in Adnan's Application for Leave to Appeal, which was posted yesterday by the State of Maryland. He's listed as authenticating his note but not testifying at Adnan's postconviction hearing. Maybe he can now testify. Maybe somebody else who worked with Gutierrez can. We'll see.

Adnan's ineffective assistance claim based on failure to seek a plea deal

Adnan's Application for Leave to Appeal also finally brings into focus for me his claim that he received the ineffective assistance of counsel when Gutierrez didn't seek a plea deal despite his repeated requests. Previously, I posted that I thought Adnan had almost no chance of succeeding on his claim and expressed surprise that the court even asked the State to brief the issue (its response is due today). 

After reading Adnan's Application, I now get it. The main point isn't that Gutierrez failed to seek a plea deal; it's that she lied about seeking a plea deal. According to Adnan's Application, he asked Gutierrez about a plea deal because other prisoners at the detention center asked him what his offer was. This makes sense given that about 95% of criminal defendants plead guilty, most pursuant to plea deals. In the Application, Adnan claims that Gutierrez said she would ask the prosecutor about a plea deal and later told him that she had asked and was told that the prosecution would not be offering him a deal. If Gutierrez said this, we know it's a lie because the prosecutor in Adnan's case has come out and said that Gutierrez never contacted him about a plea deal...just as Asia has said that Gutierrez never contacted her about her letters.

So, where does this leave Adnan on this issue? I don't know. As noted, an important attorney lie can lead to a finding of ineffective assistance of counsel. That said, because Gutierrez never asked about a plea deal, we have no idea whether the prosecution would have offered one or whether Adnan would have accepted it. As far as I can tell, no court has ever addressed this specific issue, which is probably why the court asked the State to brief it. 

Final Thought: Asia and Adnan's actual innocence

My impression after listening to the first episode of Serial was that Adnan couldn't have killed Hae if he indeed saw Asia in the library on January 13th. Later, we heard from people like Summer, who said Hae might have left school later than initially thought. This led a lot of people, including me, to think that Adnan could have seen Asia at the library and subsequently gotten into Hae's car before she left school. After composing this post, I no longer think this is a likely possibility.

Can Adnan be forgetful? Yes. If the last thing Adnan did before killing Hae was see Asia at the library, is he going to forget this encounter? I don't think so, especially after getting Asia's letters. If Adnan saw Asia on 1/13 and then got into Hae's car minutes later, is Gutierrez going to convince Adnan that he saw Asia on some other day? I don't think so. The only rational explanation I could give for Adnan letting Gutierrez drop the ball on Asia is if he killed Hae in the library parking lot (as Jay told Chris) and was worried that Asia's testimony could hurt him. But if that were the case, you have to think that Adnan would have changed his tune after his first trial, when the prosecution (1) had Inez testify that she saw Hae leaving school between 2:15 and 2:30; and (2) claimed that the Best Buy call was made at "around 2:30, 2:40." Certainly at that point, Adnan would have told Gutierrez that she needed to follow up with Asia because he was fairly certain he saw her on 1/13.

I therefore now think that that we have three likeliest scenarios: (1) Adnan saw Asia on 1/13 and didn't kill Hae. Gutierrez told Adnan that Asia saw him on another day and Adnan believed her. If Adnan didn't kill Hae, seeing Asia on 1/13 wouldn't have seemed significant to him at the time, and he could have been convinced that he actually saw Asia on another day. (2) Adnan didn't see Asia on 1/13 and didn't kille Hae. (3) Adnan didn't see Asia on 1/13 and did kill Hae. I no longer think it is especially likely that Adnan saw Asia on 1/13 and killed Hae soon thereafter.



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Asia did get the dates wrong. She says that she remembered missing two days of school for snow after seeing Adnan in the library. This happened the week before Hae went missing. There was an ice storm on the 14th, but not two days off from school. So her letter can't be 100% accurate.

Posted by: Ferguson | Jan 14, 2015 8:07:04 AM

Ferguson: There was snow on Friday, January 8th, causing school to be closed. If Asia saw Adnan on Thursday, January 7th, that was followed by only 1 "snow day" and then the weekend.

There was snow/ice on Thursday, January 14th, and Friday, January 15th, causing school to be closed. If Asia saw Adnan on Wednesday, January 13th (the day Hae disappeared), that was followed by 2 "snow days."

Posted by: Colin Miller | Jan 14, 2015 8:13:50 AM

Colin, you're right. Though this post from Serial (http://serialpodcast.org/posts/2014/11/weather-report) theorizes that she conflated the two weather events, and that her story might not have checked out.

Posted by: Ferguson | Jan 14, 2015 8:23:45 AM

Ferguson: Right. That leaves 1/13 and 1/7 as the most likely candidates for when Asia saw Adnan at the library. I'd love to hear more from Asia to clarify what she's said. I'd also love to find out whether Adnan was absent on 1/7 (he was absent 2/4 days from 1/4-1/7, according to the podcast).

Posted by: Colin Miller | Jan 14, 2015 8:26:47 AM

According to live tweets from the hearing today ( https://twitter.com/justingeorge ), it sounds like the court was not showing interest in the Asia alibi issue, but only pursued questions about the plea deal. Any thoughts on how they might rule now that the hearing is complete?

Posted by: francis | Jan 14, 2015 9:18:15 AM

Francis: My best guess is still that Adnan's claim of IAC based on failure to seek a plea deal (and lying about it) will not succeed. As for Asia, the best chance of success is filing a motion to reopen the postconviction proceeding and (1) having Asia testify; (2) presenting evidence that Urick's prior testimony regarding Asia was mistaken (if it was); and (3) hopefully having someone from Gutierrez's legal team back in 1999/2000 testify that about what Gutierrez said about Asia (assuming it's favorable for Adnan).

Posted by: Colin Miller | Jan 14, 2015 9:26:20 AM

Sir, you wrote: "The main point isn't that Gutierrez failed to seek a plea deal; it's that she lied about seeking a plea deal." So why do you think the COSA asked the AG to respond to the first part of the question, when the latter seems more important? What's the Court getting at, in your view?

Also, the AG argues Plaintiff was unlikely to accept a deal. Isn't that irrelevant? Ask a hypothetical question and you're likely to get a hypothetical answer. The fact is, a deal was never presented. And trial counsel may have misled her client in that regard. Your thoughts?

Posted by: Watching from Canada | Jan 14, 2015 11:10:40 AM

Watching from Canada: I think a huge part of the problem for the COSA is that Asia didn't testify at the PCR hearing. It's really tough for them to grant a new trial without her testimony. This is why Adnan's best bet is to move to reopen his PCR proceeding based on Asia's testimony (assuming she's now willing to testify) and other evidence.

When a client rejects a plea deal based on his counsel's bad advice (e.g., you can't be convicted of 1st degree murder), he has to prove that he likely would have accepted the plea deal if given the proper advice. The same applies for Adnan. As you say, though, how can we answer this question when Adnan wasn't even offered a plea deal?

Posted by: Colin Miller | Jan 14, 2015 12:19:32 PM

I inferred that the COSA confined its order to the plea deal because that's all that the AG could reasonably address; the matter of Asia providing an alibi is separate. But the application for leave to appeal the denial of PCR explicitly refers to trial counsel misleading the petitioner with regard to seeking a plea offer. That's the point you emphasize in your post; however, it's not what COSA asked the AG to respond to today. I wonder why.

Posted by: Watching from Canada | Jan 14, 2015 12:35:30 PM

Watching from Canada: Adnan sought leave to appeal the Circuit Court's denial of his IAC claims with regard to both (1) Asia; and (2) asking for a plea deal. I'm assuming that the COSA didn't even ask for a response on Asia because her lack of testimony at the PCR hearing makes a finding of IAC extremely difficult.

With regard to plea deal, I'm assuming that the court asked for the State to respond because Gutierrez allegedly lying about asking for a plea deal is a unique issue. If Gutierrez simply refused to ask for a plea deal, Adnan would have basically no chance of succeeding.

Posted by: Colin Miller | Jan 14, 2015 1:08:34 PM

Supplemental (and Confession: I had an esprit d'escalier/slap-to-forehead moment after my earlier comment, realizing that the AG couldn't respond to any suggestion that trial counsel lied about seeking a plea deal, because that would be between an attorney and a client).

I go back to what the Court is trying to get at with its narrowly defined order to the AG. Is it a simple, have-to-ask-something question, or is it trying to isolate a partial answer it wants or needs to weigh while addressing the larger issues in the application for leave to appeal?

I'm trying to understand what's really going on here. (One of the best aspects of Serial and the global public's following of it, along with erudite articles such as yours, has been how much of it all has taught people about the US legal system.)

How bound is the Court to earlier decisions in this case? How much leeway does it have to decide it will at least hear oral arguments pursuant to the application?

Posted by: Watching from Canada | Jan 14, 2015 4:03:43 PM

Francis: I don't think there was a hearing and those "live tweets" were simply somebody summarising the written submission in Tweet form. As far as I'm aware, so far, this appeal has been solely on the papers (which are all available online) and there have been no hearings. Happy to be corrected if I'm wrong.

Posted by: Alex | Jan 15, 2015 6:28:14 AM

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