Wednesday, June 10, 2015
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.