EvidenceProf Blog

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

Monday, August 24, 2015

Adnan's Attorney Files a Supplement to the Motion to Reopen Based Upon Cell Phone Evidence

Today, Justin Brown filed a Supplement to Motion to Re-Open Post-Conviction Proceedings on behalf of Adnan Syed. The Supplement asks the court to consider evidence such as the AT&T Cover Sheet to show that, inter alia, (1) the cell tower pinged by incoming calls was not reliable to determine the location of Adnan's cell phone; and (2) the 5:14 P.M. "call" on Adnan's call log was a missed call that went to voicemail and not Adnan checking his voicemail. Brown is asking that this evidence be considered "in the interests of justice," which is the standard under Section 7-104 of the Maryland Code of Criminal Procedure.

This is a pretty nebulous standard, so the judge has a great deal of discretion in considering the issue. That said, I think one argument by Brown is especially compelling. According to the Supplement (pages 8-9):

Screen Shot 2015-08-24 at 12.21.08 PM
Screen Shot 2015-08-24 at 12.22.35 PM

In other words, the State didn't claim at trial or during the PCR hearing that the incoming 3:15 P.M. call could have been the "Best Buy call." Instead, it made this argument for the first time in its Brief of Appellee to the Court of Special Appeals of Maryland to try to show that it could have created a timeline that could have worked even if the Asia alibi had been presented. 

Given that this new argument now needs to be addressed by the Maryland courts, they need all relevant information about that call, including whether the cell tower it pinged was important. Therefore, I think that the court should allow the Supplement.



| Permalink


Colin - Why did Brown wait until now to file this brief? This is all information that was available during the last PCR hearing. Doesn't this reflect poorly on HIS counsel, that he didn't notice or present the AT&T cover letter the last time around?

Posted by: Paul | Aug 24, 2015 9:44:21 AM

Is there a term for evidence that is really just a wildcard? For example, the State claimed that a 2:36pm marked "Incoming" came from a Best Buy pay phone without providing proof that the call really was from Best Buy or that the pay phone even existed.

Posted by: Ben Bruening | Aug 24, 2015 10:13:38 AM

Paul: I don't think that this would have been a viable issue at the initial PCR hearing. I think it was the State's recent argument to the Court of Special Appeals that allows it to be raised now.

Ben: I don't think there's a specific legal term. I guess "assertion" would be the best term.

Posted by: Colin | Aug 24, 2015 10:43:51 AM

Do you think that the media coverage (podcasts, etc.) will have any bearing on whether or not the court will allow this?

Posted by: laura | Aug 24, 2015 11:01:15 AM

I'm not seeing the connection between the Asia alibi for Adnan (~2:40/2:45) and the cell tower evidence.

The State argued that Adnan made a call from the Best Buy payphone to the cell phone in Jay's possession. Since there were no call detail records for incoming calls provided by AT&T, the state argued this call was the 2:36 incoming call to Jay; on appeal they argue it could have even been the 3:15 incoming call to Jay. At either 2:36 or 3:15, however, the cell tower information and whether or not incoming calls are reliable for location purposes (i.e., AT&T fax) seems relevant only to the question of determining Jay's location at the time the incoming calls were received. Unless I'm missing something, the cell tower evidence on incoming calls was not specifically used for the purpose of locating Adnan at 2:36 or 3:15 to rebut the alibi evidence.

Posted by: NIne9fifty50 | Aug 24, 2015 11:34:33 AM

"Unless I'm missing something, the cell tower evidence on incoming calls was not specifically used for the purpose of locating Adnan at 2:36 or 3:15 to rebut the alibi evidence."

That's exactly the point. The 3:15 P.M. call wasn't used at all at trial as far as I recall. I don't think that there was any evidence or testimony at all about who made that phone call or where Jay was when he received it. Then, in its brief to the Court of Special Appeals, the State made the brand new argument that it could have used this 3:15 P.M. call as the "Best Buy call" if Asia had been called as an alibi witness.

If this is a potentially viable claim, every aspect of the 3:15 P.M. call needs to be assessed. This includes consideration of whether its ping was relevant.

Posted by: Colin | Aug 24, 2015 11:38:45 AM

I do not understand how the state can make an argument that their strategy has any effect whatsoever on an ineffective assistance of counsel appeal. Basically they are saying, "yeah we can adjust our story to whatever it needs to be to in order to convict." I guess I always imagined that the standard for ineffective assistance was whether the outcome of the trial would have been effected with the facts presented at trial.

Posted by: Simone | Aug 24, 2015 11:41:39 AM

Simone: I agree with you. The problem with the State's argument is that it creates the possibility of a never ending back-and-forth. The state can claim, "If Asia testified, we would have said Debbie saw Hae leaving school at 3:00 P.M. and made the 3:15 P.M. call the Best Buy." The defense could then claim, "If the State did that, the defense could have claimed that Hae told Takera in front of Debbie that she couldn't give anyone a ride." Etc. Etc. I think you have to stick with what you presented at trial.

Posted by: Colin | Aug 24, 2015 11:45:23 AM

Is it unusual for the Court to reach out and contact the State's attorney over one month past their deadline to see if they plan to respond? It seems the State should be barred from responding because they missed the deadline.

Posted by: Cathy | Aug 24, 2015 11:50:16 AM

Since this motion has been filed, how long are we expecting the State to respond to it and potentially reopen the case and begin trial? Is this supplement a big step forward in the process?

Posted by: Emma | Aug 24, 2015 11:52:49 AM

Similarly, at trial there was no cell tower evidence presented or relied on for locating Adnan for purpose of the 2:36 call - he was not in possession of the phone as agreed by prosecution and defense. Since cell tower evidence was not presented or relied on at trial or on appeal for either the 2:36 or 3:15 call, what is the relevance of challenging the reliability of cell tower evidence?

Of course, I can see why the defense would want to challenge the reliability of using the later calls to locate Adnan.

Posted by: NIne9fifty50 | Aug 24, 2015 12:02:16 PM

So, can the state claim a timeline at trial, the timeline used to convict Adnan, THEN say in an appeal, they could've used another timeline? I mean, what?
Also, since incoming calls were never presented, what numbers made incoming calls, how can they prove who called? They can't & used Jay's word of who called at what times.

Posted by: Sunny | Aug 24, 2015 12:23:54 PM

I re-read the State's brief and see that the 3:15 call was mentioned in a footnote to the State's brief when discussing the issue of prejudice. They do not directly or indirectly rely on cell tower info; the state concedes that the 2:36 and 3:15 calls are based on assumption.

". . .The problem with this logic is that the State could have worked off the (also tenable) assumption that it was the 20-second 3:15 p.m. call, not the earlier 2:36 p.m. entry, that corresponded to Syed’s call to Wilds to come meet him. In other words, had McClain testified that she and Syed were sending emails or talking to one another at the Woodlawn library until 2:40 p.m., that would have presented a relevant alibi on only one of two possible timelines that the State could have argued to the jury. Both calls were short and originated from an unspecified number; either of them could have been presented by the State as the key communication from Syed to Wilds; and neither timeline was more or less consistent with the remainder of the State’s case. To be clear, the point is not that the State’s asserted timeline was flawed, but only that Syed overstates the significance of Asia McClain. At most, McClain would have, like Warren and Syed’s father, added a modest wrinkle to the possible timelines of the crime. This too underscores why Syed has not established prejudice as a result of the alleged failure to pursue Asia McClain.

Posted by: NIne9fifty50 | Aug 24, 2015 12:26:29 PM

@Nine9fifty50 I'm guessing that if the State brings in a new time that relies on an incoming call then all the evidence that relies on the new timeline is open to scrutiny. Jay claims he got the come get me call on Adnan's cell - so the cellphone and the related records are thus in play again. I'm guessing that Justin Brown wants all the cell tower data struck from the records. The State gave him an in to request that.

Posted by: Sue | Aug 24, 2015 12:41:55 PM

Cathy: As I said on the podcast, this is a fairly unique case and the judge had the discretion to allow the prosecution to submit a response after the fifteen day deadline. It seems that is exactly what he did. It will be interesting to see what arguments they make about the “interests of justice” standard.

Emma: The State has until September 8th to respond to the motion to reopen. I don’t know if it will have a longer deadline to respond to the Supplement.

Sunny: I think the two work together. The State can try to claim that they could have used another call as the Best Buy call because they never identified incoming phone numbers. This seems to me to show the weakness of their case, but the State sees it another way.

Nine9fifty50: As you note, the State claimed for the first time in its COSA brief that the 3:15 P.M. call could have been the Best Buy call. Given that, don’t you think that the defense should be entitled to present any evidence relevant to the 3:15 P.M. call? Otherwise, you’re allowing the State to claim, “If Asia would have testified, we could have presented a different theory of the case,” without allowing the defense to argue how it would/could have responded.

Posted by: Colin | Aug 24, 2015 1:29:11 PM

If, late in Adnan's trial (meaning after cross-examining and dismissing the AT&T guy), a belatedly-sharp-eyed clerk had suddenly spotted the note about incoming calls being unreliable for location, had brought it to Gutierrez's attention (tap tap), would Gutierrez have been able to use it? Or would the Court have said it's too late, you stipulated to this?

Posted by: Ben Bruening | Aug 24, 2015 2:08:53 PM

Good brief, but I have to agree that *Jay's location* at 3:15pm is hardly relevant to the issue of Adnan's alibi. To put it another way, even giving the defense the full weight of the argument that Jay was nowhere near Best Buy when he was called at 315, the state could still argue that Adnan made the 315 call from a payphone at Best Buy.

That being said, if I were the judge, I'd still find that it's in the interests of justice to reopen this issue, given the gross ineffective assistance of counsel in not reading the fax cover sheet. (And if I were Justin Brown, I might fall on my sword on this issue as well).

Posted by: RR | Aug 24, 2015 2:09:31 PM

Right, I agree - The state is saying there really isn't any direct evidence that Adnan made the call from the payphone at a particular time (no one testified to this; no call detail; this was only raised in closing arguments). At this point there's just an assumption that either call could fit. If Brown has something to affirmatively show or raise doubt that the 3:15 call wouldn't fit, of course he should present this.

That's why I didn't see the relevance of the cell tower evidence for the 3:15 call. Both sides agree that Adnan did not have the cell phone at this time, so the cell tower evidence doesn't address Adnan's location at 2:36 or 3:15.

Moreover, Brown appears to be introducing the cell tower evidence himself for the 3:15 call to Jay ("The 3:15 p.m. call was an incoming call which activated a cell tower site near where the State argues the murder took place") only to then argue that this evidence is unreliable and should not be used for location purposes. But, it wasn't used by the State for this purpose at trial or at appeal to begin with.

Posted by: NIne9fifty50 | Aug 24, 2015 2:31:30 PM

I wonder if the state's case is undermined in a different way. They argued that the Leakin Park pings put Adnan at the burial scene, and even if he has an alibi for 2:45 he cannot explain away his presence there. Well, the cell phone pings also put Jay (who has undisputed possession of the phone) at or near the purported scene of the murder (Best Buy). If you believe the pings, what was Jay doing at the murder scene? If you don't, what evidence is there (other than the testimony of someone who admits purjuring himself) against Adnan?

Posted by: Michael | Aug 24, 2015 2:55:33 PM

This just all seems more and more like incompetent prosecution as well as in in-adequate defense. How in the world could no one get the incoming call records from ATT!? It's just unbelievable.

Posted by: Paul | Aug 24, 2015 2:56:45 PM

"Pathetic. Just pathetic."

Posted by: anon | Aug 24, 2015 4:14:49 PM

Come on Nine9fifty. Be fair. Just read the actual words the Professor is writing and the actual words in the Supplement. It's pretty straightforward.

Posted by: FarFarAway | Aug 24, 2015 5:27:49 PM

Regarding today's ep 10, are you guys already working with Justin Brown, so that he's aware of this? And preparing some kind of motion to subpoena the tipster record?

Posted by: Amy | Aug 24, 2015 10:11:37 PM

Ben: The defense couldn’t have contested admissibility, but they could have used the cover sheet to cast doubt on the reliability of the evidence.

RR and nine9fifty50: The point for me is really this: The State didn’t use the 3:15 P.M. call in any meaningful way during trial, direct appeal or collateral appeal. Then, in its COSA brief, the State claimed that it could have used the 3:15 P.M. call if Asia had testified at trial. Assuming that this is a valid argument, the defense should be allowed to argue how the 3:15 P.M. call could have been attacked at trial. Sure, it’s complete conjecture, but so is the State’s argument.

Michael: Good point.

Paul: Agreed.

Amy: Things have been set in motion.

Posted by: Colin | Aug 25, 2015 7:11:22 AM

Is the issue solely limited to the 3:15 call, or is the attorney making a separate assertion that Guitierez provided ineffective counsel by failing to use the fax cover sheet to challenge the cell phone records at trial?

Posted by: Rich | Aug 25, 2015 7:44:41 AM

Post a comment