EvidenceProf Blog

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

Wednesday, June 10, 2015

Cristina Gutierrez Was the Attorney Who Failed to Question the ME About the 2 Hour Lividity Claim

A couple of hours ago, I did a post about Nicolas v. Attorney General of Maryland, 2015 WL 1469184 (D.Md. 2015), in which the United States District Court for the District of Maryland found that trial counsel was not ineffective, despite her failure to contradict a medical examiner's claim that lividity could become fixed within two hours after death by either (1) cross-examining the expert on the issue; or (2) calling her own expert. Unfortunately, that opinion didn't list the defendant's trial counsel, and I couldn't find any of the opinions from the Maryland courts on the case. A few minutes ago, a commenter on my prior post noted how it might have been asking too much for Gutierrez to realize the importance of lividity evidence.

In response to that post, I figured I'd look again to see if I could find the attorney from the Nicolas case to see if she could explain how she missed the importance of the lividity evidence. After searching for a few minutes, I was able to find the defendant's brief in the case: Nichols v. State of Maryland, 1998 WL 35222540 (D.Md. 1998). Here's the relevant language from the brief:

In fact, this issue has been preserved for appeal. Initially, Mr. Nicolas's trial counsel proposed a dual inferences instruction based upon Robinson v. State, 18 Md. App 678, 308 A.2d 734 (1973). See Affidavit of M. Cristina Gutierrez, attached as Exhibit A.

Yes, that's right: The attorney in the case was Cristina Gutierrez, the same attorney who represented Adnan. Furthermore, the final opinion of the Maryland courts on this claim came on April 16, 1999, two days before Gutierrez started representing Adnan. So, in response to the comment: Yes, Gutierrez should have been uniquely aware of lividity evidence and importance case.



| Permalink


What does that mean in layman's terms? I'm guessing it means she really was ineffective?

Posted by: Sheri | Jun 10, 2015 12:26:10 PM

ok, there is no doubt that she was not operating with a full deck.
I am sorry, blatent incompetence. Her own ego couldn't get out of its way.

Posted by: navymom | Jun 10, 2015 12:28:00 PM

It means that Gutierrez didn't simply make an honest mistake on the lividity issue. She was fully aware of its importance when representing Adnan.

Posted by: Colin Miller | Jun 10, 2015 12:29:35 PM

Wow. That's really sad for Adnan. This whole case is sad. Thank you for bringing it to light. Anything that can assist in getting Adnan freed is helpful.

Posted by: Sheri | Jun 10, 2015 12:37:42 PM

So what part of the prosecution's case is still intact?

Posted by: Matt | Jun 10, 2015 1:31:21 PM

Was the lividity identified as a deciding issue in the outcome at the trial court level in the Nicolas case (i.e. in 1999)? I see that it was identified as an error in the appeal (i.e. at some point within the last few years when the appeal was filed), but when did it come to light as an error? I may be missing connecting the dots on why Gutierrez should have known it was an error as a result of Nicolas being convicted. I'm thinking if she didn't know it was an error at the time she was cross-examining the ME or prepping for trial, there's no reason she should have known it was an error as a result of Nicolas' conviction.

Posted by: Jen | Jun 10, 2015 1:44:40 PM

Matt: Not much.

Jen: After Nicolas was convicted, he appealed, claiming that Gutierrez was ineffective based upon not challenging the ME's clearly incorrect testimony about lividity. From the brief, we know that Gutierrez responded to these allegations, so she knew full well that she had messed up.

Posted by: Colin Miller | Jun 10, 2015 1:49:14 PM

With what we now know I only see 2 possible options 1) Gutierrez was borderline criminally incompetent (allegations that she intentionally botched the defense to make more money on the appeal are surprisingly gaining credibility with each new revelation) or 2) the prosecution knowingly withheld exculpatory evidence from the defense. Based on Susan’s excellent work explaining the propensity of the prosecution to withhold evidence (The Prosecution’s Bad Faith Withholding of Crucial Evidence Before Adnan’s Trials, view from LL2) and the revelation that Gutierrez was systematically denied access to autopsy evidence (undisclosed ep 5), it has become clear that the prosecution acted improperly during the discovery process. If it can be shown that the evidence that was withheld was exculpatory (since it systematically destroys the states narrative, this shouldn’t be hard), doesn’t Adnan have a valid due process claim under Brady?

Posted by: Brian | Jun 10, 2015 2:44:16 PM

As an attorney, I am trying to handicap how much of this case is IAC and how much is police/prosecutor misconduct. It's appearing to be 20%-80%. Will law enforcement try to stem the enormous Serial/Undisclosed/Innocence Project tide bearing down on it? Is Baltimore area law enforcement so embroiled in controversy already that it's simply a matter of time before heads roll?

Posted by: Jack | Jun 10, 2015 4:26:29 PM

The Baltimore Sun article, 6/26/97, confirms that CG was one of the attorneys:

"A jury in Baltimore Circuit Court found an emergency medical technician guilty yesterday of fatally shooting his 2-year-old daughter last summer, shortly after he took out a $15,000 insurance policy on her life.
During Nicolas' two-week trial, his attorney, M. Cristina Gutierrez, tried to convince jurors that a passing motorist shot into Nicolas' car and killed Aja as Nicolas was returning the child to her mother after a night at the movies.

Ballistic tests showed that the fatal shot was fired at close range and from inside the car, said Deputy State's Attorney Sharon A. H. May. Nicolas also had firearm residue on at least one hand, she said.
Neither Gutierrez nor Howard Cardin, Nicolas' primary attorneys, were present when the verdicts were announced. Only Nicolas' original attorney, Art Cheslock, was with the defendant, Massey said."

Posted by: Nine9fifty50 | Jun 10, 2015 4:31:57 PM

I have a general question for you. Is Adnan's case a one-off example of bad policing and bad lawyering and bad analysis? Or, are there many more cases like this that should be examined?

Posted by: Mary | Jun 10, 2015 4:54:40 PM

Brian: I think a lot of people will be shocked when they learn more about Gutierrez. The big problem for Adnan in terms of discovery violations is the first (mis)trial. Yes, the State dragged its feet, but Gutierrez got a sneak preview of the State’s case at the first trial.

Jack: I would place a lot more of the blame on Gutierrez. I’d be interested to know, though, what the Baltimore law enforcement community thinks of some of these findings.

Nine9fifty50: Yes, and here’s a story about her giving the opening statement:


Mary: Only .08% of attorneys are disbarred, and Gutierrez probably had more verifiable misconduct than 99% of attorneys who have been disbarred.

Posted by: Colin Miller | Jun 10, 2015 5:09:51 PM

WHOA. I feel like this is a bombshell! So frustrating that the lividity oversight can't make a difference now. It just seems so important, especially after this past case.

Posted by: Heidi | Jun 10, 2015 8:24:01 PM

On Susan's blog when she wrote about the lividity, she had a quote from CG's cross of the ME showing that she DID question about the pattern of the lividity and the fact that Had would have been laid frontally. Is your contention that she didn't do enough to show that the lividity present meant that the timeline didn't work? Do you have a link to the cross of the ME or the date that it happened? Great show!

Posted by: lavoix | Jun 11, 2015 5:11:22 AM

I hope that uncovering this piece of this enormous puzzle comes to some good for Adnan Syed's case. But for me the bigger issue is this: how flawed is our justice system if when confronted with SCIENTIFIC FACT, or more specifically the misstatement or flat out lying about SCIENTIFIC FACT, the court can still reject the petitioner's plea? How is proving an expert witness gave testimony in direct conflict with facts not grounds to at least revisit the case? The fact that CG didn't properly cross in Nicolas is further evidence that she was seriously flawed as an attorney. But the bigger issue for me is how can the court sit by when presented with SCIENTIFIC FACTS that contradict expert testimony and not do anything? IAC claim or not, in the interest of justice, when EXPERT TESTIMONY is proven to be factually wrong, how can any judge let this go?

Posted by: Amy cribbs | Jun 11, 2015 6:01:39 AM

lavoix: Here's her testimony, starting at page 34. Gutierrez does ask about whether the lividity is consistent with different positions, but she never asks about how long it takes for lividity to fix. This latter question is they key one. A juror at Adnan's trial could have figured that lividity fixed well before Hae was buried, making the lividity evidence meaningless.

Posted by: Colin Miller | Jun 11, 2015 6:02:44 AM

Does a body need to be in a constant position for the 8-12 hours post mortem for lividity to fix? In other words, if there are several movements in the first 12 hours post mortem, will there be any fixed lividity?

Posted by: Andrew | Jun 11, 2015 9:58:11 AM

Depends on how much movement there is. Some rolling the body some and then putting it back in the original position after a few seconds isn't going to signifcantly impact lividity. Flipping a body from facedown to on its back after a couple of hours and leaving it will.

Posted by: Bacchys | Jun 23, 2015 4:09:19 AM

Post a comment