EvidenceProf Blog

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

Friday, July 31, 2015

2 More 1st Degree Murder Cases in Puerto Rico that Cristina Gutierrez Handled During Adnan's Case

Yesterday, I posted an entry about how Cristina Gutierrez was involved in four 1st degree murder cases in four different jurisdictions in 1999/2000. One of those cases was in Puerto Rico. As Susan Simpson has pointed out to me, however, Gutierrez was actually involved in two other first-degree murder cases in Puerto Rico during Adnan's second trial.

Bernacett Cosme

The first of these cases was United States v. Bernacett Cosme, 127 F.Supp.2d 271 (D.P.R. 2001). Angel Bernacett Cosme was indicted on murder charges on November 22, 1999 and detained pending trial. On December 6, 1999, the case was scheduled for trial on February 1, 2000. On December 10, 1999, Bernacett moved for the appointment of learned counsel because the government indicated that it planned to seek the death penalty.

Gutierrez was appointed as learned counsel on this case on January 14, 2000, i.e., one week before the start of Adnan's second trial. On February 1, 2000, "the Court issued an order finding that because this was a death penalty case, it was unreasonable to expect adequate preparation for the trial within the limits of the [Seedy Trial Act]." According to the court,

The discovery in this case has included psychological testing of Bernacett and DNA analysis of hair and blood samples. These complicated pretrial investigations, combined with the Government's potentially seeking the death penalty, have made this case a complex one for which the normal seventy-day period would not provide time for adequate preparation.

Defense counsel did not object to this order.

Subsequently, at a status conference on March 1, 2000, "the Court ruled that once the Government decided whether to seek the death penalty, a new trial date would be set." At some point thereafter, the Government informed the defense that it was not seeking the death penalty. The defense, however, failed to timely inform the court of this decision. Months later, the defense moved for (1) a review of the detention decision; and (2) dismissal based upon violation of the Speedy Trial Act, prompting the court to respond as follows: 

The Court was first notified that this was no longer a death penalty case when Bernacett stated in his present motion that at some unspecified date the Government had decided against seeking the death penalty. Bernacett should have informed the Court of this change as soon as it happened....Accordingly, the Court finds Bernacett's claim of a STA violation to be unavailing.

This is pretty serious stuff. As we've noted on the podcast, there's no right to bail in capital cases. The second the government decided not to pursue the death penalty, the defense should have moved for bail review. Moreover, pursuant to the court's March 1st order, the second the government decided not to pursue the death penalty, the defense should have so informed the court, which could have eventually led to a Speedy Trial Act dismissal. Unfortunately for Bernacett, this was not done in a timely fashion.

Molina

On February 9, 2000, i.e., during Adnan's second trial, Gutierrez was appointed as learned counsel for David Vega Molina. The case seems to be pretty complicated. According to the First Circuit's opinion, there was a five count indictment in the case based upon a robbery/hostage-taking/murder that occurred at "Fernándes Editores (FE), a Mexican company, publishes coloring books and other materials for children."

On January 31, 1995, Zuñiga, the two women, and defendant-appellant Victor Villega–Angulo (Villega) proceeded in two cars to FE's premises. When they arrived, Zuñiga and Villega entered the building. Once inside, they encountered three FE employees, namely, Alberto Morales, Benjamin Ocasio Duran, and Guillermo Muñoz. Brandishing firearms, they ordered the men to lie face down on the floor. When Zuñiga and Villega were unable to find any money, they called Rodríguez–Matos, who provided suggestions about where to look.

Zuñiga and Villega were unable to locate any company funds. They helped themselves to the cash that the three employees had on their persons and shot Morales and Ocasio Duran (the shots killed the former and seriously wounded the latter). They then kidnaped the branch manager (Muñoz); placed him in the trunk of his own car; and drove the automobile from the scene.

The four miscreants rendezvoused at the house that Zuñiga and Rodríguez–Santiago shared with their children and Rodríguez–Santiago's sister, Jessica Rivera Santiago (Rivera). Once there, they placed Muñoz in an empty bedroom and held him hostage for approximately one week. During that interval, Rodríguez–Matos stayed at the house to assist in guarding Muñoz. The defendants also recruited Falau and defendant-appellant David Vega Molina (Vega) to aid in that effort.

As part of the new plan, Zuñiga contacted FE and demanded a ransom. Contrary to Zuñiga's instructions, FE contacted the Federal Bureau of Investigation (FBI). An undercover FBI agent posed as an FE executive and began to negotiate the conditions of Muñoz's return. At some point, he provided the kidnapers with a telephone number that they could call to firm up the arrangements for delivery of the ransom. Rodríguez–Matos's stepmother worked for the telephone company and Zuñiga asked Rodríguez–Matos to contact her in order to match a subscriber's name to the telephone number. When the kidnapers learned that the number belonged to the FBI, the men decided that Muñoz would have to be assassinated (the two women, Rodríguez–Santiago and Rodríguez–Matos, dissented from this decision). On February 5, 1995, Muñoz was driven to a remote location and murdered.

I'm not sure what exact role Gutierrez played in trial preparation given that the trial didn't take place until 2002, a year after she was disbarred. That said, this docket gives you a pretty good idea of what was going on in the case during Adnan's trial and thereafter.

What seems clear to me is that the only real evidence the government had against Molina in connection with the murder and hostage-taking charges was a statement by co-defendant Villega that incriminated him. But don't take my word for it. According to the First Circuit,

The totality of evidence against Vega was noticeably thinner than that against Zuñiga. More importantly, the prosecution relied heavily on Villega's statement in a misguided effort to prove Vega's guilt. 

In any multi-defendant case involving incriminatory statements, the key doctrine is the Bruton doctrine, which precludes the prosecution from introducing statements by a co-defendant that incriminate another defendant unless the co-defendant testifies at trial. Therefore, while Gutierrez was involved in the case, there should have been a motion for severance, i.e., a motion to have Molina's case heard separately and/or a motion in limine asking to preclude the prosecution from introducing Villega's statements incriminating Molina unless Villega testified at trial.

No such motion was made by Molina despite the fact that a severance motion was filed by another co-defendant in August 2001. When trial was finally held in 2002, the prosecution introduced Villega's statement without objection by defense counsel (not Gutierrez). After he was convicted, Molina appealed, and the court reversed his murder and hostage-talking convictions, finding a Bruton doctrine violation based upon plain error despite defense counsel failing to object. If the proper pre-trial motions were made, however, Villega's statement likely never would have been admitted.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/07/yesterday-i-postedan-entryabout-how-cristina-gutierrez-was-involved-in-four-1st-degree-murder-cases-in-four-different-jurisd.html

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Comments

This is an insane case load. Talk about some serious trials. I have no law background at all. Is this a typical case load? Seems to me like a lot to have on your plate.

Posted by: Chris D. | Jul 31, 2015 8:01:44 AM

why won't Rabia release his cell records from Jan 14th to the date of his arrest? Is it a request by his lawyer that she not release those? They could go a long way in showing that the 13th was just another normal day if his cell pinged any of those towers in Leakin Park. I agree that the 7 o'clock timeframe is out the door, but I definitely am not convinced, by any measure, that Adnan is innocent.

Speaking of which, Colin, in your opinion, what evidence have you come across so far that convinces you that Adnan is innocent? Or are you not yet convinced and merely think he got a raw deal in court (which I would agree with)?

Much as I want to believe Adnan is innocent, I'm nowhere close to that feeling yet.

I am very eager to see what the DNA evidence brings up, but even so, Jay complicates everything regardless of how many times he's changed his story.

Thanks

Posted by: Jake | Jul 31, 2015 8:02:55 AM

Chris D.: It's the 4 different jurisdictions thing that really gets me.

Jake: It takes a lot of time to redact the documents we post on the website. We've already noted how Adnan's phone pinged L689B and another tower adjacent to Leakin Park between 1/13 and Adnan's arrest. I'm not sure that anyone wants to undertake the task of redacting all of the phone records when it really doesn't inform our analysis.

I think the lividity evidence is the strongest evidence of Adnan's innocence. I think Adnan is innocent, but I'm not certain.

Posted by: Colin Miller | Jul 31, 2015 8:11:52 AM

Jake, The fact that the phone pinged L689 after the 13th has been on Susan Simpson's blog for literally months. Of course some have suggested that Adnan was going back to "rebury Hae".

Posted by: Absurdamerica | Jul 31, 2015 8:27:40 AM

Another thing to add to the list of reasons why Gutierrez provided ineffective assistance!

Jake: Frankly, it doesn't matter if Adnan is actually innocent or guilty - the fact is that it wasn't proven that he was guilty, so he should not have been convicted (according to the guiding principals of US law). Obviously, one of the reasons so many are interested in this case is because they believe Adnan is innocent and it is a horrifying thing to contemplate being sentenced to life in prison when you are innocent. If he is innocent, it is more proof that this can happen to anyone and leads us to question how many innocent people are in the prison system. But still, the bottom line for this case is that it was completely botched and Adnan was put in prison even though his supposed guilt was not at all certain.

Posted by: Ewokmama | Jul 31, 2015 9:03:22 AM

This case just becomes more unbelievable the more people search for information. I feel like the justice system failed Adnan and so many others. And are so slow to correct these errors, even though people are sitting in prison unable to really... Live. It is even more shocking to know so many people suffered because they shared the same attorney.

What is the most realistic timeline for Adnan, if he would have a retrial, or some other recourse. Is this months away or years away?

I really enjoy the podcast! And I really appreciate the time you all dedicate to this case! Keep up the amazing work!

Posted by: Skky | Jul 31, 2015 9:29:43 AM

This is the relevant post from Susan Simpson's blog:

http://viewfromll2.com/2015/01/10/serial-how-prosecutor-kevin-urick-failed-to-understand-the-cellphone-records-he-used-to-convict-adnan-syed-of-murder/

A couple weeks after Jan 13th, Adnan's call log showed two consecutive outgoing calls made within 74 seconds. One pinged the Leakin Park tower, another pinged a different tower.

Posted by: Michael | Jul 31, 2015 10:18:22 AM

Ewokmama - I disagree. I think it matters a lot if he is innocent or guilty. Maybe from a legal perspective it doesn't matter, but even Colin has said that he would stop his work on the case if he thought or found evidence that Adnan was guilty. I personally think he is likely innocent, but it is so hard to feel 100% positive of this unless evidence comes out that proves he is innocent. The problem is, it is very hard to "prove" someone is innocent. Which is the reason for innocent until proven guilty. It's much easier to prove something happened versus proving that something didn't happen. From a legal perspective, I think it is obvious that Adnan should have the right to a new trial regardless of his guilt or innocence. From a personal perspective, I want the right person to be held accountable and it is pretty obvious that the State does not have a case. If by some crazy twist of fate Adnan really is guilty and it just happened completely differently than the State thought, I would feel very badly about him going free based on a legal technicality and for that reason I really hope that there is some proof out there that he is innocent or that someone else is guilty. That being said, I would rather someone guilty go free due to lack of evidence to prove guilt than an innocent person go to jail and for that reason, I see where you are coming from.

Posted by: gc | Jul 31, 2015 10:24:23 AM

I think it is interesting to see the different perspectives of the people that post comments though. There are definitely two distinct groups of people. There are people that seem to believe that he is probably innocent because the State did not really have evidence to prove his guilt. Then there is another group of people that seem to believe that he is probably guilty because no one can prove that he is innocent. Although I really want to know without a doubt that he is innocent, I am more in the former group than the latter.

Posted by: gc | Jul 31, 2015 10:28:45 AM

I know you are concerned that she was handling so many cases in different jurisdictions, but the fact that she had three in Puerto Rico suggests that she must be well-known there, possibly due to previous cases, and well-versed in Puerto Rican legal particularities. In that light, is it still more demanding Than having the same number of cases in the same jurisdiction?

Also, correct me if I am wrong but it seems like she lost all the cases she was involved in. Is this typical for defence attorneys or for her previous performance?

Posted by: Anonynon | Jul 31, 2015 11:15:55 AM

I was reading court transcripts and Cristina Gutierrez mentions two 3rd year law students that worked with her as clerks. It would be interesting to get their opinion on how it was working with her. Maybe give us some insight on her approach and or mental place.

Posted by: Chris D. | Jul 31, 2015 11:59:04 AM

Unbelievable! The more info you dig up on the characters surrounding the case, the more it feels unreal. I can't believe the amount of mistakes and oversights (or coverups) were made. Ironically, the only person who seems to NOT have any dirt on them is Adnan. I don't really have anything lawery to say, but very well done. Please, keep it up!

Posted by: Adrienne | Jul 31, 2015 1:13:59 PM

Skky: Probably at least a year, but we’re in uncharted waters with what’s going on in the case.

Anonynon: I haven’t found any records of Gutierrez handling Puerto Rico cases before these 3, but I haven’t done an exhaustive search. What I do know is that she was dealing with an issue of first impression: whether the death penalty applies in Puerto Rico. As for Gutierrez “losing” all of these cases, it sometimes happened. It’s how she “lost” these cases that is troubling.

Chris D.: Yes. It will be interesting to see whether they are ever called to testify.

Posted by: Colin Miller | Jul 31, 2015 4:00:20 PM

Jake, get off the cell phone nonsense once and for all. Colin's being gracious to a fault by allowing you to backtrack to it. Episode 8, and Mike Cherry, proved definitively that cell phone "ping" evidence is not evidence, whether it be from the 13th of January or any other time. Quit obfuscating and muddying the waters and let's solve this murder. Who Killed Hae Min Lee? Get off of Adnan and the cell pings. It's done. What's done is done.

https://catcherinthelie.wordpress.com/2015/07/30/when-you-wish-upon-a-star/

Posted by: Cold N. Holefield | Aug 1, 2015 5:11:46 AM

Unrelated to this post, but I keep coming back to this question: was there dirt/skin/blood/dna found and collected from Hae's fingernails? And if so, why hasn't it been tested? What would it take to get it tested?

Posted by: KC | Aug 1, 2015 6:19:07 AM

I believe that what Colin is working on does not always directly refelct on Adnan's guilt or innocense.
What he is showing is a completely botched investigation, botched trial and botched defense, from all aspects.
The question is, did Adnan get a fair trial, and is this what we expect from our legal system? Is this the best legal system in the world in action?
I don't think so.

At first, I was pretty sure Adnan did it, and 50-50 on whether he should have been convicted, but following all the new hard evidence from Undisclosed, I am 100% sure Adnan is innocent for the following reasons:
1- Lividity Evidence: No evidence or testimony that Adnan was involved in midnight burial, or long-term concealment of body. Cell phone activity shows nothing at that time either, if you want to use it as an indication of its owners whereabouts.
2- Pings: Jay clearly had the phone throughout the day, during murder timeline and during much of evening. No way Jay would be using Adnan's phone non-stop if they were together, even at the burial, and Adnan not using his own phone. Phone evidence shows Adnan not involved in any way. Aisha call clearly happened on another day.
3- Alibis: Plenty of alibis now for Adnan after school. Timeline does not give him sufficient time to leave school, commit murder, conceal body face down for 8+ hourse, deal with 2 cars on his own, drive around trunk-popping, and still have time to get back to track practice. If you disagree, provide a timeline scenario that works with all the evidence.
4- Physical Evidence: There is absolutely no physical evidence for Adnan's involvement and no eye witness to the murder. The only thing clouding Adnan's innocense is Jay's self-serving and oft-perjured testimony. I doubt Jay's perjury would be acceptable even in the Middle Ages, much less in our "refined" legal system. Would you like an admited, proven, and infamous liar and criminal to be the only testimony sending you to life in prison? (This is not Jay-bashing, every point is proven fact about Jay, even according to him and his closest friends. He is a liar and a criminal. Adnan is not.)

Jay even admits to burying the body, hiding all the evidence, stashing his clothes, being worried about cameras, worried about his DNA. He does not even venture to say Adnan was also worried or involved in concealing evidence. These kinds of points in Jay's testimony show that it is just not reality. Adnan walked away from the burial and had Jay hide all the evidence with Jen, with a farewell, "How ya doing girl"? Meanwhile Jen is an accessory after the fact, but Adnan is not involved after the fact at all. Does that sound remotely logical?

Based on above, Adnan is 100% innocent. If I am wrong, show me one single piece of hard evidence worthy of the Salem Witch Trials.

Posted by: anon | Aug 1, 2015 2:08:19 PM

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