Thursday, July 16, 2015
Back in May, I did a post about Cristina Gutierrez and her team failing to talk to five State witnesses who received duplicate subpoenas from the defense. Specifically, at Adnan's second trial, prosecutor Kevin Urick noted that five witnesses had complained to him about making calls to Gutierrez's office that went unreturned.
I later added context to this issue by posting a copy of the defense letter sent to French Teacher Hope Schab in connection with the duplicate subpoena she received from the defense:
Now, with the release of additional missing pages from the trial transcript, I can pretty confidently confirm that Ms. Schab was one of these five witnesses whom the defense failed to contact. I can also pretty confidently confirm that this was an oversight by Gutierrez rather than a matter of trial strategy.
When I initially posted about Hope Schab, I was unsure of whether she was one of the five witnesses. I posted a memo to Gutierrez from her clerk dated December 2, 1999. In that memo, the clerk noted that Ms. Schab called, asking when the defense expected her to appear so that she could prepare lesson plans and arrange for a substitute teacher. While I thought there was a decent chance that Gutierrez failed to follow up on this memo, it was written before Adnan's first trial, so I thought that it was possible that Gutierrez did end up contacting Ms. Schab before Adnan's second trial when Kevin Urick raised this issue.
Ugh. These pages make everything seem pretty clear. Before the second trial, Ms. Schab got her defense subpoena and letter, which told her to call Gutierrez so that they could schedule her appearance and discuss her testimony. The letter also indicated that the defense could not release Ms. Schab from her State subpoena. Ms. Schab then called Gutierrez's office because (a) she was confused about her obligations; and (b) the letter told her to call. When her call went unanswered, she complained to Urick, which is why Urick was confused by Gutierrez's claim that the defense didn't subpoena Ms. Schab.
Of course, Urick isn't the only one who was confused. Gutierrez's statement makes clear that she had no idea she subpoenaed Ms. Schab and that she never contacted her in the time period between her clerk's memo (December 9th) and Ms. Schab's testimony (January 28th).
Now, this was obviously a huge oversight but not the something that likely had any significant impact on Adnan's trial. Sure, it would have been nice for the defense to discuss Ms. Schab's testimony with her before she testified, but she didn't have any real knowledge of the events of January 13, 1999. Moreover, the main purpose of a dual defense subpoena is to allow the defense to call a witness whom the State didn't call, which provides a pretty good indication that the witness would hurt the State's case.
But what about the other four witnesses whom the defense failed to contact? I don't know their identities, but one of them could have been Patrick, the 3:59 P.M. call on Adnan's call log.
Patrick was subpoenaed by the State but was neither (officially) interviewed by the State nor called as a witness for the prosecution. His sister Patrice was interviewed by the State, but the notes from that interview were "lost."
At Adnan's first trial, the State made clear that it was not calling Patrick as a witness because it indicated at the time of the mistrial that the only State's witnesses whom had not yet been called were Jenn, their cell phone expert, and possibly another law enforcement officer.
Knowing this, the defense made the logical decision to issue a dual subpoena for Patrick for the second trial; after all, there had to be some reason why the State wasn't calling him. And yet...we have no record of the defense contacting Patrick. It's quite possible he's one of the five witnesses who contacted the defense with no return call. It's quite possible that he's the key to this case. Finally, it's also quite possible that Gutierrez had no idea she subpoenaed Patrick and that he was not called as a defense witness based upon the same type of oversight that leads to alibi witnesses not being contacted and plea deals not being pursued.