EvidenceProf Blog

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

Thursday, June 11, 2015

The "Two Hour Lividity" Case Handled by Gutierrez is Much Worse Than I Imagined

Yesterday, I did a post about Nicolas v. Attorney General of Maryland, 2015 WL 1469184 (D.Md. 2015), the "two hour lividity" case handled by Cristina Gutierrez, the same attorney who handled the Adnan Syed case. It turns out that the Nicolas is much more troubling than I initially imagined for a few reasons.

In Nicolas, Richard A. Nicolas, an EMT, called 911 from a Texaco gas station at approximately 9:57 P.M. on July 26, 1996 and said that his two year-old daughter had been shot. Nicolas later told police that, after taking his daughter to see "Pinocchio," another driver bumped his car, resulting in a heated argument and the other driver fatally shooting his daughter about twelve minutes before the 911 call.

At trial, the State developed the alternate theory that Nicolas killed his own daughter at approximately 7:45 P.M. "in order to cash in on a life insurance policy and then attended a movie in order to create an alibi." This theory was corroborated by

the expert testimony of Dr. Dennis Chute, the Medical Examiner, who testified that the lividity (or pooling of blood) in [the daughter]'s left side and back indicated a time of death two hours earlier than Petitioner claimed.

Gutierrez neither cross-examined Dr. Chute about whether lividity could be fixed within two hours after death nor called her own expert witness to refute this timeline. After Nicolas was convicted of murder, he appealed, claiming, inter alia, that he received ineffective assistance of counsel in connection with the lividity evidence; his appeal was finally rejected by the Court of Appeals of Maryland two days before Gutierrez started representing Adnan.

Thereafter, Nicolas filed a habeas petition with the United States District Court for the District of Maryland. In this petition, Nicolas once again raised the lividity issue. That court did not find ineffective assistance by Gutierrez despite

letters written by the prosecution team to Dr. Chute, the lividity expert, and to Officer Hannah, the police officer at the scene of the crime. The Dr. Chute letter stated that lividity was "the whole case" and that the prosecutors were "100" certain that his testimony won the case....The letter to Officer Hannah stated, "It is only because you did move [the daughter's body] that the Medical Examiner saw the fixed lividity on her left side and her back when the autopsy was done. This fact was the whole case."...The prosecution further states, "We learned from an unimpeachable source that the defense did not spot the significance of Dr. Chute's findings before we raised the issue in open court."

The court primarily rejected Nicolas's ineffective assistance claim because (1) Gutierrez claimed that, after hearing Dr. Chute's testimony, she consulted her own forensic pathologist despite not calling him as a witness; and (2) Gutierrez pointing out that it takes more than two hours for lividity to fix would have further contradicted Nicolas's claim that his daughter was killed at about 9:45 P.M.

Nicolas also claimed that the State violated the Brady doctrine by failing to turn over two statements made by witnesses staying at a Holiday Inn close to the shooting on on July 26, 1996. One witness "said that she heard a loud popping sound like a gun shot around 9:45 p.m.," and the other witness "told police that he heard a loud sound like a car backfiring or exploding while in the hotel parking lot...at about 10:00 p.m." Finding that the statements corroborated Nicolas's timeline of the case, the court granted him a new trial.

So, what's important about the Nicolas case?

Can Lividity Fix in Two Hours?

Dr. Leigh Hlavaty said on this post and in Undisclosed that lividity doesn't fix until 8-12 hours after death, which is consistent with what other experts have told me. So, how could Dr. Chute testify that lividity became fixed a mere two hours after death? Does lividity fix earlier in a 2 year-old than a 20 year-old?* 

I decided to look into other cases handled by Dr. Chute. After serving as a medical examiner in Baltimore for around 11 years and teaching pathology for a few years, he became the Deputy Medical Examiner for Duchess County, New York in 2005. In 2007, he was the medical examiner in a case involving the death of a twenty-one month old child, who was found on her back despite having fixed frontal lividity. "According to Dr. Chute, the frontal lividity indicated [the victim] was lying on her stomach for eight to twelve hours before being turned over. (A258). Brief of Respondent (the State), People v. Santiago, 2013 WL 8211696 (N.Y. 2013) (emphasis added).

Again, this 8-12 hour time frame is entirely consistent with everything I've been told about lividity. So, how did Dr. Chute testify in 1997 that the victim's lividity fixed in two hours? At that point, he had been a medical examiner for 5-6 years. Was this a mistake? Was he pressured by the police or the prosecutor? I don't know, but there's clearly something off about Dr. Chute's testimony from Nicolas, and the letters written by the prosecutors to Dr. Chute certainly give me pause.

Who is the Unimpeachable Source? 

According to the prosecution, "[w]e learned from an unimpeachable source that the defense did not spot the significance of Dr. Chute's findings before we raised the issue in open court." Okay, so who was this source? Did someone from the defense team talk to the prosecution about Gutierrez's failure to grasp the significance of the lividity evidence? That would have been highly improper.

Was there a prosecution mole in Gutierrez's office? Okay, this one might sound a bit crazy, but last month I posted an entry about a case in which the Maryland State Attorney General's Office planted a mole in the office of a defense attorney being investigated for improprieties. Given that Gutierrez had a record number of client complaints brought against her, this is not beyond the realm of possibility.

Was the source someone not on the defense team? I guess that's possible, but how would someone outside the defense team know Gutierrez's grasp on the lividity evidence? Moreover, if this person gained this knowledge through legitimate channels, why wouldn't they be named?

So, why is this important for Adnan's case? Through whatever channel, the same prosecutor's office handling Adnan's case learned that Gutierrez didn't understand lividity evidence. I've always wondered why the State propounded a theory of the case at Adnan's trial that could so easily be contradicted by the lividity evidence. Did the State do this because it learned in Nicolas that Gutierrez didn't understand lividity evidence? Is this why the State dragged its feet in turning over Hae's autopsy report and allowing Gutierrez to view the burial photos: to prevent her from getting up to speed?

Did Gutierrez Learn About Lividity Evidence During/After Nicolas?

Of course, Gutierrez's claim was that she consulted with a forensic pathologist during the Nicolas case after hearing Dr. Chute's testimony although she didn't call him at trial. This leaves us with three possibilities. First, Gutierrez could have been lying. Given what we will disclose about Gutierrez's behavior in dozens of other cases during this same time frame, this is certainly a possibly to consider. 

Second, Gutierrez could have talked to a pathologist and yet still not grasped the significance of lividity evidence. The question here is whether you buy that it was possibly sound trial strategy for Gutierrez not to question Dr. Chute's conclusion about lividity fixing within two hours after death. The court hypothesized that this could have been strategy because an earlier time of death further contradicted Nicolas's claim that his daughter was killed at about 9:45 P.M.

On the other hand, without contradicting Dr. Chute's conclusion, the jury was left with the impression that the forensic evidence matched the State's theory of the case and contradicted Nicolas's theory of the case. This is probably why the prosecutor was convinced that Dr. Chute's testimony sealed Nicolas's fate.

Now, let's look at the other possibility. If Gutierrez presented evidence that lividity fixes 8-12 hours after death, this would have contradicted Nicolas's version of events,...but it also would have contradicted the State's theory of the case. Would that have been enough for reasonable doubt? I suppose it depends on the way that Gutierrez would have pitched it to the jury. It seems like Gutierrez would have been best served calling into questions all of the lividity evidence based upon the obvious incorrectness of Dr. Chute's "two hour lividity" claim, rather than trying to claim that the victim died much earlier in the day (unless Nicolas had an alibi). If Nicolas is re-tried, it will be interesting to see if this is the strategy that his new counsel employs.

So, it's possible that Gutierrez failed to grasp the importance of the lividity evidence.

The third possibility is that Gutierrez did grasp the importance of the lividity evidence but failed to contradict Dr. Chute's "two hour lividity" claim for strategic reasons. If this is the case, however, how did Gutierrez miss the key lividity issues in Adnan's trial? As Dr. Hlavaty has said, the lividity evidence in Adnan's trial contradicts the claims that (1) Hae was "pretzeled up" in the trunk of her Sentra for 4-5 hours; and (2) buried on her right side in Leakin Park in the 7:00 hour. Drawing these points out on cross-examination and/or Gutierrez calling her own pathologist only could have helped Adnan. And yet, somehow she dropped the ball.

Were there Brady Violations in Adnan's Case

It was pretty disturbing to learn that the State in Nicolas failed to turn over two key witness statements that corroborated Nicolas's theory of the case. I've written before about certain witness statements being "lost" in Adnan's case and the oddity of other key witnesses not (officially) being interviewed. At some point, will we learn that someone made a key statement to the State in Adnan's case that was never turned over? We'll see.

We'll also see what happens to Nicolas. It's possible that he killed his own child, which is possibly the worst crime in the world. But it's also possible that he's innocent man who has lost years of his life in prison due to the failures of his attorney and the misconduct of the State of Maryland.


*I just got feedback from one of my medical experts: "I wouldn't expect" lividity to fix more quickly in the 2 year-old because "it's more due to just gravity and position vs. the amount of fluid." "[T]he time it would take for both to be fixed would be the same."

[Update: I had been trying to make sense of the fact that Nicolas apparently had an expert on appeal saying that lividity should have fixed 4-6 hour after death, i.e., in half the time of the usual 8-12 hour estimate. This made little sense to me, especially given that the first expert I consulted (who is just starting as a medical examiner) said that he wouldn't expect lividity to fix more quickly in a two year-old. Then, however, I got this helpful comment from Dr. Hlavaty:

While rough time frames exist for estimating time of death based on lividity and rigor mortis in temperate conditions in adults, no such time guidelines exist for children and infants.  The sources all agree that infants and children go through these changes quicker than adults, but there have not been published and universally accepted studies to form the basis for such estimates. So, medical examiners form such opinions based on their experiences. Based on my experiences, in temperate conditions infants and children can go through these changes in about half the amount of time as adults.  And if the temperature is warm, these changes appear and disappear even faster.

This is very interesting and could explain why Nicolas's expert on appeal claimed that lividity should have become fixed between 4-6 hours after death.].




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I don't understand how challenging the 2 hour lividity would contradict Nicolas' claim that the shooting happened at 9:45pm. From the articles I've read, Nicolas had only picked up his daughter from her mother's house early that evening, shortly before the movie began. If lividity takes 8 - 12 hours, she would have to have been killed earlier in the afternoon, before he even picked her up.

Posted by: Anna | Jun 11, 2015 9:27:36 AM

Anna: That's why I said that it depended on whether Nicolas had an alibi. If it was clear that Nicolas didn't see his daughter earlier in the day, the lividity evidence couldn't have hurt him. I need to see if I can find additional information about the case to see how he supported his claim about pickup.

Posted by: Colin Miller | Jun 11, 2015 9:39:18 AM

Man she screwed up not one case but another one. I wonder why anyone form Adnan's family didn't look into Gutierrez's background? I'm sure that if they knew that Gutierrez screwed they would have her fired and gotten a different attorney. This makes me wonder if there is any evidence that Gutierrez talked to the presiding judge about getting copies of them photos that the state refused to give copies of.

Posted by: Jim M. | Jun 11, 2015 10:03:41 AM

IF (and that is a big IF) CG discussed lividity with a Forensic Pathologist or even a AP/CP Pathologist, she would have fully understood lividity and all its implications. I do not believe she spoke with anyone and her lack of cross examination was proof of that.

Posted by: navymom | Jun 11, 2015 10:06:20 AM

Strange case. If it can be clearly established that the daughter was alive during the day, the finding of fixed lividity is suspect, isn't it?

Posted by: streetwriter | Jun 11, 2015 10:07:33 AM

Is there any way to contact Gutierrez's assistants to find out more information? Has any legal professional that has worked with Gutierrez came forward with evidence that she dropped the ball? This is outrageous that she has gotten away with all of this. Innocent people are in jail because of her not doing her job.

Posted by: Abbie | Jun 11, 2015 10:10:24 AM

It seems Nicolas' PCR counsel already tried the strategy you propose. Their expert testified to 4-6 hours for lividity. Nicolas included his PCR counsel in the IAC claim which was denied by the court.

"The Petitioner also asserts that post conviction counsel was ineffective in his handling of forensic testimony at the post conviction hearing. At the post conviction hearing, in an attempt to attack the State's theory of the time of death, defense expert Dr. Isador Mihalakis testified as to the time of when lividity might become fixed. The Petitioner now contends that this further muddled the issue rather than clarifying it. It is now the Petitioner's position that post conviction counsel should have elicited testimony from Dr. Mihalakis regarding the inappropriateness of using lividity to determine time of death at all."

Posted by: Nine9fifty50 | Jun 11, 2015 10:21:10 AM

From the Baltimore Sun article, 8/26/96, Nicolas picked up his daughter shortly after 6:00pm.

"At 6 p.m. Friday, he pulled up to Esbrand's home in his light blue 1990 Chevy Cavalier, and his mood was different, hurried, according to relatives and police sources.
He stormed into a bathroom, complaining that Esbrand was taking too long to get Aja ready.
The 2-year-old was dressed in black tights and a red Warner Bros. T-shirt with the image of a cartoon character, the Tasmanian Devil. As was her custom, Aja gave everyone in the house -- friends and relatives -- goodbye kisses.
Nicolas refused to take Aja's child safety seat along. He gathered his daughter up, and the child leaned over, at Nicolas' urging, to give her mother a last kiss.
As her daughter giggled, Nicolas took off east on Frankford, waving from his car. Nervous, Esbrand scribbled down the license number.

Late coming home
By 9 o'clock, Esbrand was frantic; Nicolas had not said the movie would be so late. She dialed his pager and entered her phone number.

By 9: 30 p.m., the movie was over. Esbrand was beeping him every five minutes but couldn't tell if he was getting the messages.

According to law enforcement sources, she stopped typing in her phone number. She beeped "911" instead.

Posted by: Nine9fifty50 | Jun 11, 2015 10:50:55 AM

Nine9fifty50: Yes, that was his strategy on appeal. I just added an update, which seems to explain the 4-6 hour estimate on appeal and why lividity might not be especially useful in cases involving the death of children and infants. It seems like that would have been the best strategy at trial. As for the facts in your second comment, I'm still learning more about the Nicolas case. There seem to be facts that help (an apparent picture taken of the victim in a photo booth at 7:00 P.M.) and hurt Nicolas.

Posted by: Colin Miller | Jun 11, 2015 11:04:08 AM

Any indication that the prosecution or LE had CG's phone tapped?

Posted by: Louise | Jun 11, 2015 11:32:30 AM

Colin, has the scientific understanding on how to calculate time of death based on lividity changed since 1999?

You would think that in the 1990's the science would not have been as exact as it is today, so it was more of a guessing game during Adnan's and the Nicholas case than it would be today. What have the experts told you about the science then versus now?

Also, has the Undisclosed team or the Serial team determined who else worked with Gutierrez on Adnan's case and tried to track them down to talk to them about her preparation?

Amazing work on Undisclosed!

Posted by: Tyson | Jun 11, 2015 11:35:00 AM

I agree. That's why we can see CG was justified in deciding not to put on dueling experts on this issue. There is dispute even among the experts you consulted for this post. The question would remain for the jury, if Nicolas immediately called 911 and police and parametics arrived within minutes, why would lividity be fixed?

Instead CG tried to poke holes in the state's expert testimony and present other evidence on time of death.

"Trial transcripts reveal that counsel obtained admissions from Dr. Chute that he could not tell if lividity fixed first on Aja's left side or on her back, that other factors could affect lividity, and that Aja's body could have been placed on her side after being removed by the Office of the Medical Examiner. Jr. June, 17, 1997, at 185, 191, 201)."

"In Petitioner's trial, defense counsel presented evidence that the victim was alive after 7:00 pm when her picture was taken at a photo booth, and presented evidence on calor mortis (body temperature)."

Posted by: Nine9fifty50 | Jun 11, 2015 11:58:47 AM

Nine9fifty50: That's certainly what the court concluded, but the prosecution seemed convinced that the lividity evidence made their case. I'm agnostic. If the conclusion is that Gutierrez messed up in Nicolas, you can see how she also messed up in Adnan's case. If, like you say, Gutierrez understood the lividity evidence in Nicolas and made a tactical decision not to question it, it makes her failure in Adnan's case even more baffling.

Posted by: Colin Miller | Jun 11, 2015 12:15:47 PM

I think you may be conflating the issues of "lividity" and "fixed lividity." Lividity in the body does not become fixed for 8-12 hours after death, the process of lividity starts much sooner than that (http://en.wikipedia.org/wiki/Livor_mortis). Dr. Chute testified as to the presence of lividity in the child, not that lividity had become fixed, to support the opinion that the child had been dead longer than the defendant claimed.

Posted by: James | Jun 11, 2015 12:40:38 PM

James: From the court's opinion: "Petitioner asserted that Dr. Chute was incorrect when he testified that lividity could become fixed within two hours, and he argued that his counsel should have realized that the proper time frame was closer to four to six hours."

Posted by: Colin Miller | Jun 11, 2015 12:44:27 PM

I'm confused by the message the court is making on Page 12 of the document you refer to in your post, Nicolas v. Attorney General of Maryland, when they state "While the letters evidence an unnecessary and distasteful display of glee, this unfortunate conduct does not make transform [sic] the objectively reasonable performance of trial counsel into ineffective assistance of counsel."
Is the court merely expressing distaste for the boastful nature of the letters the prosecution sent to Dr. Chute and Officer Hannah, or is it the content of the letters which seems to imply that CG has missed the significance of Dr. Chute's findings and that they intend to make use of that lack of understanding? A letter from Dr. Chute indicating "that lividity alone should not be used to determine time of death…" shows that the prosecution was well aware that the testimony regarding lividity alone would be misleading. Is this typical legal gamesmanship?

Posted by: louise | Jun 11, 2015 12:45:29 PM

If anything, Nicolas tells us is that CG was aware that expert testimony could be as early as 2 hours to the 4-6 hour range.

Whether it was as early as 2 hours or as late as 4 hours, of course the prosecution felt the lividity evidence made their case (although the ballistics, life insurance policy, history of domestic violence and depression, and gun shot residue looks bad too). Nicolas insisted the police and parametics arrived within minutes of his daughter being shot. Any lividity evidence pushing the time of death back makes the prosecutions case that Nicolas is lying.

Posted by: Nine9fifty50 | Jun 11, 2015 12:54:09 PM

louise: You don't often see the inner working of a prosecutor's office. I don't know whether this is common or not.

Nine9fifty50: Your comment raises another interesting possibility. Perhaps Gutierrez didn't fully understand the significance of the lividity evidence in Adnan's case based upon what happened in Nicolas case (combination of a two-year victim and seemingly incorrect testimony about fixed lividity in two hours).

Posted by: Colin Miller | Jun 11, 2015 12:59:28 PM

Given her area of practice, she would have handled many cases involving lividity evidence and time of death, besides Adnan's and the Nicolas case; so she was aware of the potential ranges and variables. Sadly, having to defend a case involving the murder of an infant was probably not new either.

Posted by: Nine9fifty50 | Jun 11, 2015 1:19:43 PM

Nine9fifty50: To the extent that she did, it makes her failures in Adnan's case all the more glaring.

Posted by: Colin Miller | Jun 11, 2015 1:23:11 PM

Tyson: This was a case from 1988 involving Dr. Korell and her superior:


The same conclusion is reached about the 8-12 hour time frame.

Posted by: Colin Miller | Jun 11, 2015 5:49:30 PM

Hi Professor Miller,

Do you know when Ms. Gutierrez received a full copy of the autopsy report in Adnan's case? I read Susan's post about Urick's bad faith withholding of evidence, but it doesn't mention if and when the prosecution finally handed over a copy of the autopsy report to the defense. It seems like because of the prosecution's many late hour disclosures (like the cell phone tower information) Ms. Gutierrez had to scramble to research a number of things right before trial began. (This not to excuse her failure to consult an independent medical examiner, but I am wondering if she overlooked the importance of the lividity evidence because of limited time to investigate/look through the document thoroughly.)

Posted by: Heather | Jun 11, 2015 8:08:11 PM

Thanks Colin! Keep up the awesome work!

Posted by: Tyson | Jun 11, 2015 8:54:14 PM

Heather: My best guess is between July 1st (when Gutierrez was still requesting the autopsy report and July 7th (when Gutierrez made a discovery request that didn't ask for the autopsy report).

Posted by: Colin Miller | Jun 12, 2015 3:32:45 AM

Why didn't CG file Motions to Compel? I don't understand why she wasn't asking the Court to enforce discovery. Also, if she had consulted an independent medical expert, wouldn't there have been a report in her files?

Posted by: Desire Dunn | Jun 12, 2015 12:40:40 PM

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