EvidenceProf Blog

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

Thursday, July 16, 2015

Cristina Gutierrez Didn't Realize She'd Subpoenaed Hope Schab in the Adnan Syed Case

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.

The additional missing pages, however, make it clear that this was not the case. This is from the end of Ms. Schab's testimony (pg. 152-153):

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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.

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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.



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Hi Colin,
First, thanks. I was especially glad you covered the bail issue in Undisclosed. I worked for a Criminal Defense firm, and I’ve been saying Adnan should have been released on bail since the days of Serial—my observation is that most of our firm’s clients (even charged w/murder) who were not indigent got out on bail, especially if they were not flight risks and had no priors. I still can’t understand why (despite the mistake with it not being a capital case) the court couldn’t clearly see that a 17-year-old American-born HS student was clearly NOT a flight risk! Ridiculous.
Regarding this memo, I noticed the other attorneys listed in the heading, namely Guiterrez’s partner, Redmond. I wonder if Redmond might speak to Guiterrez’s health. She had obviously been a “lion” in the courtroom for years, and surely her attorney colleagues may in retrospect realize “signs” of her illness that maybe she’d been withholding from them. Has anyone spoken to the other attorneys in the firm during that time period?

Posted by: iheartegrets | Jul 16, 2015 8:25:38 AM

Quick question regarding the last episode. What percentage of 1st degree murder defendants are granted bail?

Posted by: Seamus Duncan | Jul 16, 2015 8:54:36 AM

So many questions. Is it normal for the defence to issue a separate subpoena when the state has already issued one? Do lawyers not usually have secretaries field these calls and make phone appointments or do they give their own direct lines? Is it typical for lawyers to even subpoena a witness without having interviewed them first to find out whether they will be relevant to the case? Or do they normally just subpoena everyone and filter as they go?

I am starting to wonder about the clerks and assistants surrounding this case too. Of course, they are still Guttierez responsibility and she is still expected to be on the ball, but secretaries and assistants are often invaluable, extremely knowledgeable and organized. In professional environments they often act as a check against this kind of chaos, so it makes me wonder whether some of this confusion might have been due to inexperienced support staff.

I fail to see how a lawyer can forget who she subpoenad, even if she was sick, and this particular witness was no help to the defense anyway, so why would they have wanted her as a witness? I therefore wonder if wrong letters were sent to wrong people. I assume that receipt of subpoenas is registered, so is there no independent way to verify if she did in fact receive a defence subpoena?

Posted by: anonynon | Jul 16, 2015 9:23:56 AM

Is Adnan's current team contacting Patrick or other witnesses never contacted? Would things they discove be disclosed in your podcast or held for a possible new trial?

Posted by: Abby C | Jul 16, 2015 10:15:16 AM

Ihearegrets and Abby C: All of that contact is being done by Adnan’s legal team. There are a number of people who could be called to testify, and it wouldn’t be right for us to contact them.

Seamus: I don’t think that percentage is available. Between 55 and 60% of murder suspects are given some type of bail package, and about 20% of them make bail. A big chunk of those denied bail are likely those charged with capital murder. But I’m not aware of any data that breaks down the difference between 1st and 2nd degree murder (and many jurisdictions, like South Carolina, don’t have a distinction).

anonynon: The answer is that different offices handle these matters differently. From looking through the case file, Gutierrez seemed to have her clerks do more than most attorneys.

Posted by: Colin Miller | Jul 16, 2015 10:39:13 AM

Why would Ms. Schab, subpoenaed by the defense, call Urick to find out how to handle being ignored? Does anyone else find that odd? How does a random layperson know to call the prosecutor in the case and ask questions as opposed to just the clerk of courts or the main line at the DOJ or courthouse? Did I miss something? Also, what Abby C asked. I would like to know that too. You all HAVE to be holding back the bestestest stuff, right?

Posted by: fourhens | Jul 16, 2015 10:46:48 AM

fourhens: Ms. Schab was subpoenaed by both the prosecution and the defense and given phone numbers for both so that they could coordinate her testimony. After Gutierrez failed to return her call, she presumably called Urick to see what was going on.

As I said in an earlier comment, Adnan's legal team is contacting the more legally-relevant witnesses, and I'm not privy to those conversations.

Posted by: Colin Miller | Jul 16, 2015 10:54:01 AM

Anonynon: I was a legal assistant for a defense firm, and yes, support staff, in my experience, field (and screen) a TON of calls—that was one of my main tasks.
Anyone who would be calling about a subpoena, I’d have taken extremely seriously…And my attorneys were always on top of stuff like that--who they'd served. They also often made jailhouse visits themselves in the event they were preparing for trial (most of the clients in jail were indigent/court-appointed, as they did a small percentage of court appointed cases).

Posted by: iheartegrets | Jul 16, 2015 11:09:12 AM

Are you concerned about other podcasters who have taken up the Serial banner contacting people connected with the case? I understand that you have no control over them (or over the people connected with the case) but I'm curious since you mentioned avoiding contact with people who are likely to be called to testify.

Specifically I'm thinking of the Serial Dynasty podcast. That show recently had an interview with Krista. During the interview she expressed concern about discussing some topics because she thought she might be called in a new court proceeding.

Posted by: Silverlock | Jul 16, 2015 11:23:04 AM

Seamus: I think a point needs to be made, or repeated, that a majority of those who are not granted or do not go out on bond are most likely indigent—they can’t afford the bond, they have court-appointed attorneys, they have no one who is putting their house up for them, often nowhere to stay, AND they often are flight risks due to a history of not showing up for court dates in the past (which indicates that they have priors). So I think when asking for a “percentage”, one most pertinent to the case at hand would be the percentage of those charged with murder who have no priors and who have hired private attorneys.

Posted by: iheartegrets | Jul 16, 2015 11:23:13 AM

Silverlock: I felt comfortable reaching out to Krista because we have her police statement, her testimony at both trials, and her statements to Sarah for Serial. Therefore, while she might be called to testify, there’s documentation of what she’s said. That makes her different from people like Patrice and “Ann,” who have no statements on record.

Ihearegrets: Yes, these are good points. As I said on the podcast, Adnan was basically the ideal 1st degree murder candidate to get bail: no priors, no confession, no named witnesses against him, full-time student, part-time EMT, lifetime Baltimore resident, strong community ties, 600+ character letters, willing to post significant collateral, willing to submit to house arrest/electronic monitoring.

Posted by: Colin Miller | Jul 16, 2015 11:31:14 AM


Gutierrez's son says he thinks she might have been showing signs of poor mental state in 1998:

By the late 1990s, Roberto Gutierrez said, he believes his mother was suffering from the initial symptoms of multiple sclerosis. She wasn't diagnosed until about 2001.

If she was affected by the illness during Syed's case, her son said, she may not have realized it or was too stubborn to admit it.

"[Multiple sclerosis] has a huge effect on a person's ability to think and her memory, her ability to make judgments," said Gutierrez, who graduated from the University of Maryland, College Park in 2010. "That's what my mom had, and toward the end of her career, she was definitely affected by that."

"You are driven by your work and you are starting to feel you have health issues, you naturally want to persevere through it," he added. "Your health gradually declines in memory, in mobility, in vision, in your ability to think, process information and recall knowledge and facts."

He said he wouldn't be surprised if the effects of the disease began in 1998, about the same time she moved her two children in with her parents in Towson. Gutierrez said his mother told them she had received death threats related to cases. But now he wonders if they moved because his mother knew her faculties were failing and needed help parenting.

"For my mother it gradually increased in terms of her ability to remember things," he said. "She was losing her vision. She wasn't able to walk. In 2003, she was in a wheelchair, she couldn't see out of one eye, she couldn't remember my name."

Posted by: foursono | Jul 16, 2015 1:01:27 PM

I'm assuming you're citing this study?


Posted by: Seamus Duncan | Jul 16, 2015 1:14:37 PM

foursome: I hadn't seen this before. Thanks for the link!

Posted by: iheartegrets | Jul 16, 2015 1:50:03 PM

foursono: Yes, fall 1998 seems like a real turning point for Gutierrez.

Seamus: That's one of the studies that I use.

Posted by: Colin Miller | Jul 16, 2015 5:12:47 PM

I am an author and if I had written this story and sent it to my publisher, no matter how well written it was, it wouldn't be long before I received an email from my editor. 'Major story line flaw. Implausible. Main character (Jay) not a believable. Any chance of a re-write that makes sense?' And she'd be right.

Posted by: FarFarAway | Jul 16, 2015 9:04:14 PM

Thanks for the insight, Iheartegrets. I guess this is why I am wondering about support staff. Why didn't a legal assistant return the phone calls or remind Guttierez that she had not done so? Why was there no follow up by the staff who would have coordinated the subpoenas and cross-checked witnesses who had yet not been met?

Posted by: Anonynon | Jul 16, 2015 11:22:16 PM

That study only mentions "murder." Does that include less severe charges like manslaughter?

Posted by: Seamus Duncan | Jul 17, 2015 7:13:28 AM

Seamus: It shouldn't. Murder is killing with malice aforethought. Manslaughter is killing without malice aforethought.

Posted by: Colin Miller | Jul 17, 2015 7:31:54 AM

Wouldn't it be important to know that, in order to determine if this is an apples-to-apples comparison?

Posted by: Seamus Duncan | Jul 17, 2015 8:48:48 AM

Seamus: I have no reason to believe that the BJS incorrectly included manslaughter cases under the "murder" heading.

Posted by: Colin Miller | Jul 17, 2015 9:06:03 AM

Well, I went ahead and contacted the BJS, who linked me to the raw data.

"Murder--Includes homicide, non-negligent manslaughter, and voluntary homicide. Excludes attempted murder (classified as felony assault), negligent homicide, involuntary homicide, or vehicular manslaughter, which are classified as other violent offenses."

Posted by: Seamus Duncan | Jul 17, 2015 9:44:44 AM

Seamus: Right, so it only only includes intentional killings and not negligent or reckless killings.

Posted by: Colin Miller | Jul 17, 2015 9:49:55 AM

But it includes lesser charges than first- or even second-degree murder. Wouldn't those defendants be more likely to receive bail than those charged with 1st degree murder?

Posted by: Seamus Duncan | Jul 17, 2015 10:06:52 AM

Seamus: Yes, that would be a safe assumption. The problem is that there are no statistics that further break down release percentage into categories like: capital murder, 1st degree murder, 2nd degree murder, etc.

Posted by: Colin Miller | Jul 17, 2015 10:15:15 AM

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