EvidenceProf Blog

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

Wednesday, June 3, 2015

Adding More Context to the Allegation That Gutierrez Wouldn't Talk to 5 Witnesses for the Adnan Syed Trial

Previously, I've posted about (1) the judge at Adnan Syed's trial being disturbed by the "accusations that Ms. Gutierrez [Adnan's attorney] wouldn't talk to people;" and (2) the accusation that Gutierrez wouldn't talk to five witnesses subpoenaed by both the prosecution and defense. As I noted in a third post, one of the limited number of witnesses subpoenaed by both the prosecution and defense was Hope Schab, the French teacher at Woodlawn High School. She was subpoenaed at both of Adnan's trials, and, based upon this memorandum, it seems like she tried in vain to contact Gutierrez about testifying so that she could prepare lesson plans and arrange for a substitute teacher.

In response to these posts, some people have construed Gutierrez's failure to talk to these five witnesses as a pretty serious error. Others have claimed that Gutierrez's failure to talk to these five witnesses about mere scheduling issues wasn't a big deal and was perhaps even trial strategy. According to letters that Gutierrez herself sent to each of these witnesses, however, this latter claim doesn't seem to match the reality of the situation.

Here's a letter that Gutierrez sent to Ms. Schab in connection with the issuance of the defense subpoena for the second trial:

Screen Shot 2015-06-03 at 9.30.07 AM

Letters such as this one were sent to witness subpoenaed by both sides and are valuable for two primary reasons. First, they show that these witnesses weren't simply deciding on their own to call Gutierrez; instead, they were responding to the prompts in these letters that they contact her after they receive their defense subpoenas. Second, these letters lay out the reasons for the calls. According to the letters, Gutierrez not only wanted to schedule the appearances of these witnesses; she also wanted to discuss their prospective testimony.

With at least five witnesses, those discussions ostensibly never took place. Therefore, with these witnesses, Gutierrez went into trial relying solely upon the statements that these individuals gave to the police, rather than conducting her own independent investigation.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/06/previously-ive-posted-about1-the-judge-at-adnan-syeds-trial-being-disturbed-by-the-accusations-that-ms-gutierrez-adnans.html

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Comments

Thanks for posting this. Are you starting to uncover evidence that she was doing this in all the cases she was trying around this same time?

How very odd to subpoena witnesses, plan to discuss their appearances and testimony and then just never do so. Did she forget? Was she overwhelmed? Cutting corners? Strange.

Posted by: thanksformutton | Jun 3, 2015 7:54:27 AM

"Therefore, with these witnesses, Gutierrez went into trial relying solely upon the statements that these individuals gave to the police, rather than conducting her own independent investigation."
Taking Urick at his word and that there were 5 witnesses who were not called back prior to the 2nd trial, how many do we actually know were not called back prior to the 1st trial?

The only way to really evaluate the significance of your argument would be to provide the full list of witnesses who were subpoenaed and a list of witnesses who were interviewed for the 1ST and 2ND trial. Then we can see who CG followed up with and at what point and who she chose not to.

Posted by: Nine9fifty50 | Jun 3, 2015 8:30:41 AM

thanksformutton: I don't know about the exact same behavior, but I'm finding evidence of errors by Gutierrez in 1999/2000 in other cases.

Nine9fifty50: I don't know that there's any way from the records of determining the identity of each of the 5 witnesses who weren't contacted. I've posted about Ms. Schab simply because I only have a record of her specifically calling Gutierrez. What seems clear, though, is that these witnesses were responding to the prompt that they call Gutierrez so that they could discuss their testimony.

Posted by: Colin Miller | Jun 3, 2015 8:53:42 AM

Could this be a "form letter" that goes out to all subpoena'd witnesses XXX number of days before trial is set to begin?
You are reviewing CG cases from 1999/2000? How many are you reviewing? What is your criteria for the cases you choose to review? What was her caseload in 1999 and 2000? What was the trend - was she working more or less? What was her experience with major trials/murder trials? How many murder defenses had she argued in the recent past? I ask b/c her work seems questionable at best, and her courtroom style was horrendous. Hard to imagine a juror being able to concentrate on facts with that voice/style. I am assuming she was not a Public Defender, so did Adnan and family choose her over other defense teams that were in the running? (Newb here to the whole situation, so I apologize IA if I am asking basic previously answered questions.) Thanks for your blog.

Posted by: fourhens | Jun 3, 2015 9:32:23 AM

fourhens: I don't have her case files from her other cases, so I don't know about the letters. Gutierrez's last two major cases were Adnan's case and the Zachary Witman case, which was another murder trial and which precipitated her disbarment. She was handling both of these cases at the same time.

Posted by: Colin Miller | Jun 3, 2015 9:35:18 AM

Since you mentioned Zachary Witman, maybe you can answer this question for me that I've had a for a while. In Serial, Koenig mentioned “The State fund that compensates people when their lawyers misuse their money paid out a total of $282,328 on twenty eight claims against Cristina. The largest payout was to the Witmans.” How much were Adnan’s parents able to claim?

Posted by: Seamus Duncan | Jun 3, 2015 10:36:02 AM

I'm not clear on how you KNOW that Hope Ms Schab did not ever talk to CG. It appears you are relying solely on Urick's comments at trial, but there are lots of ways he could be misinformed. Just one, those 5 were contacted in between the time they complained to Urick and the start of the trial.

Posted by: monstimal | Jun 3, 2015 10:46:51 AM

Seamus: I don't know whether they ever filed a claim, and I don't know whether they could have proven misuse of funds.

monstimal: I'm not really sure how Urick could be misinformed. Either 5 witnesses called him and described their futile attempts to get in touch with Gutierrez, or they didn't. I suppose it's possible that each of these witnesses subsequently got in contact with Gutierrez, but you think that she would have stated as much if this happened.

What we do know is that the State made the claim about Gutierrez not contacting 5 witnesses and the judge stated her surprise/dismay about Gutierrez failing to talk to these witnesses.

Posted by: Colin Miller | Jun 3, 2015 10:47:12 AM

"the judge stated her surprise/dismay about Gutierrez failing to talk to these witnesses."

Where is this? In your first post you have the transcript and the Judge seems very unconcerned about it.

Posted by: monstimal | Jun 3, 2015 11:00:07 AM

In this first post, I have this excerpt from the judge:

http://lawprofessors.typepad.com/.a/6a00d8341bfae553ef01b8d11ebc6d970c-pi

So, Gutierrez accuses Murphy of telling witnesses not to talk to her. The judge responds that, "as an officer of the court, I would believe you [Murphy] would do that. The judge then adds, "The fact was I wouldn't believe that Ms. Gutierrez would do that, but we have accusations that Ms. Gutierrez wouldn't talk to people."

The fact that the judge wouldn't believe that Gutierrez failed to talk to people but for the allegations clearly indicates that the judge viewed the allegations against Gutierrez as damaging.

Posted by: Colin Miller | Jun 3, 2015 11:00:59 AM

"So, Gutierrez accuses Murphy of telling witnesses not to talk to her. The judge responds that, "as an officer of the court, I would believe you [Murphy] would do that."

Wouldn't believe.

I'll just leave it at, we are not interpreting that passage the same way at all.

Posted by: monstimal | Jun 3, 2015 11:35:14 AM

monstimal: I'm not sure that we differ. I interpret it to mean: I wouldn't believe that you would act so inappropriately as to fail to talk to these 5 witnesses, but Urick has made the allegation. If that's the case and this point is made as part of the motion to reopen, that leaves the State with 2 responses: (1) Urick was lying about the 5 witnesses; or (2) Urick was telling the truth, but you should not take this as evidence that Gutierrez was having problems communicating with prospective witnesses. In either case, I think the State's case takes a hit. Do you have a different interpretation?

Posted by: Colin Miller | Jun 3, 2015 11:47:26 AM

I think the judge is just trying to balance out her "you're innocent" comment to Murphy. Murphy started the conference because she wanted on the record that she did not tell Jen not to talk to CG. The judge is saying, sometimes people think they hear something but it wasn't really said. I know you wouldn't do that, then she realizes she should say something nice about CG too. I know you wouldn't do something like that either.

She mentions the accusations that CG wouldn't talk to witnesses as another example of witnesses misinterpreting what is going on.

Your interpretation of the judge requires her "that" pronoun to refer to something from more than 2 weeks prior after having just used "that" in the previous sentence for the thing she is talking about now. The fact that the transcriber put a comma instead of a period in that sentence has to be ignored.

Posted by: monstimal | Jun 3, 2015 12:37:59 PM

I can completely understand Murphy saying something to Jenn that is misinterpreted as Murphy telling Jenn not to talk to Gutierrez. I have a considerably more difficult time understanding how Urick could misinterpret 5 different witnesses saying something to him as these 5 witnesses all saying that Gutierrez (and her team) wouldn't return their calls. What could these 5 witnesses have said that would have led to this misinterpretation?

Posted by: Colin Miller | Jun 3, 2015 12:40:18 PM

I don't know. That's not the point. The point is the judge did not express "surprise and dismay" that some witnesses think CG is blowing them off. Probably because the judge knows that witnesses don't understand how everything works. The judge probably also knows Urick is exaggerating what was said to him, just as CG is exaggerating the drama that McGilverwhaterary is trying to go on vacation.

Posted by: monstimal | Jun 3, 2015 12:55:19 PM

monstimal: I might have thought that before I found the letters. Those letters seem to make things pretty clear: Gutierrez is telling the witnesses to call her once they receive her subpoenas so that they can discuss their testimony/schedule their appearances. Clearly, 5 of these witnesses made these calls and did not get return calls from Gutierrez or her team. That's what Urick was telling the judge. I don't see how there could have been a misinterpretation.

Posted by: Colin Miller | Jun 3, 2015 1:12:23 PM

The problem is without the full list of witnesses it is difficult to evaluate your claims.

However, let's assume that Krista and Schab were not interviewed by CG prior to the 1st trial and she relied on police statements to prepare her case. Both Krista and Schab testified at the 1st trial.
Let's assume that Krista and Schab were again not called or interviewed prior to the 2nd trial, leaving 3 others who were not called prior to the 2nd trial, as Urick claimed.

Let's say CG subpoenaed 30 witnesses and CG or her team interviewed 25 witnesses for purpose of preparing the defense and relied on police statements and discussions with Adnan for the remaining 5 witnesses.

Would this be a serious error in terms of preparing for the 1st trial? It would depend on who these 5 witnesses were and the likelihood that they had vital information to the defense.

Further, after the witnesses testified at the 1st trial, what was the likelihood that there was additional information (not uncovered during questioning) that wasn't developed for purpose of preparing for the 2nd trial, such that failing to interview them again would be a gross error?

Posted by: Nine9fifty50 | Jun 3, 2015 2:24:40 PM

Nine9fifty50: I think it all comes down to what you're trying to prove. I'm not trying to prove that any serious damage was done to Adnan's case by Gutierrez's apparent failure to talk to 5 witnesses whom she had subpoenaed and asked to call her. I'm using this apparent failure to show that Gutierrez easily could have failed to contact 1 potential alibi witness (or could have thought that one of the subpoenaed witnesses was that alibi witness).

Posted by: Colin Miller | Jun 3, 2015 2:26:39 PM

This is unrelated to this thread, but I just finished listening to new addendum to the undisclosed podcast. It was an interesting podcast. That raised several questions for me. I wonder if you would care answering these:

1. Was anybody other than Mr. S asked to or volunteered to take a polygraph test?
2. It was interesting to know that Mr. Wilds usually borrowed cars from people, at least 2 of which were his close friends. But I think a far more interesting questions to ask are
a) Whether Mr. Syed ever loaned his car to Mr. Wilds before or after that day?
b) Whether Mr. Syed ever loaned his car to casual acquaintances apart from Mr. Wilds?

Thanks for your efforts and time.

Posted by: RC | Jun 3, 2015 2:45:55 PM

Thanks for the follow up post. I could definitely see how Gutierrez went into trial relying merely upon the statements that these five witnesses provided.

Posted by: Sophia | Jun 3, 2015 3:01:33 PM

RC: 1. I'm not sure.

2. Adnan's track teammate Will said it wasn't unusual for Jay to pick Adnan up from track practice.

Posted by: Colin Miller | Jun 3, 2015 6:29:14 PM

"I'm not trying to prove that any serious damage was done to Adnan's case by Gutierrez's apparent failure to talk to 5 witnesses whom she had subpoenaed and asked to call her."

This argument seemed to be the point of the recent posts on this topic, in particular CG's failure to develop Krista further as a character witness and CG's failure to follow up with Schab was damaging to Syed's case (although not rising to the level of IAC).

Since the information is available, it would seem fair to release the number of witnesses who were subpoenaed by CG and/or interviewed; not to specifically identify the 5 who Urick claimed were not contacted. Assuming CG failed to call back 5 witnesses after issuing subpoenas for the 2nd trial, was it 5 of 20 issued? 5 of 30?

Posted by: Nine9fifty50 | Jun 3, 2015 11:25:15 PM

Nine9fifty50: I see 21 of these letters in the defense files, but I don't believe that all of these witnesses were subpoenaed by the State. If I had to guess, 5 out of about 15 witnesses subpoenaed by both sides complained to Urick. I have no idea whether the other 10 or so were contacted by Gutierrez or whether they simply didn't complain.

Posted by: Colin Miller | Jun 4, 2015 3:25:05 AM

Thanks for all of your work, Colin. I’ve been following your blog and this case for months. I want to weigh in on the ride(s) to the track. It seems Adnan’s teammate said it was normal for Jay to pick up Adnan after track. If Adnan was in the habit of lending Jay his car while he was at track (to do weed pickups) then it might make sense that he would ask Hae--or someone else--for a ride to the track, even if a short distance. The reason being that Adnan would probably have a heavy backpack with school books with him—I remember many of my textbooks were heavy, and Adnan was a good student with AP classes. It would cut down time for him to have to go back to his locker or such after track to have his books with him. He also carried a gym bag, according to at least one witness. So even though the distance is short, if he doesn’t have his car to stash his books in, he might well ask for a ride due to carrying a lot of stuff, or due to the weather being cold, or any number of other reasons.

Posted by: iheartegrets | Jun 4, 2015 2:19:54 PM

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