EvidenceProf Blog

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

Thursday, September 24, 2015

Some Quick Thoughts on the State's Response to Adnan's Motion to Reopen

Yesterday, the State filed its CONSOLIDATED RESPONSE IN OPPOSITION TO PETITIONER’S MOTION AND SUPPLEMENT TO REOPEN POST-CONVICTION PROCEEDINGS in the Adnan Syed case. In this post, I will give a quick take on the RESPONSE.

No "In the Interests of Justice" Cases Cited by the State

The Circuit Court will decide whether to reopen the postconviction proceeding under the standard set forth in Section 7-104 of the Maryland Code of Criminal Procedure, which states that

The court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.

In his motion to reopen, Adnan's attorney cited a few on point "in the interests of justice" cases, including (1) Campbell v. State, 376 A.2d 866 (Md.App. 1977), in which a case was reopened based upon the allegation that the prosecutor dissuaded a witness from testifying; and (2) Curry v. State, 458 A.2d 474 (Md.App. 1983), in which a case was reopened based upon the allegation that the prosecutor misstated facts to the court.

My biggest questions before reading the State's RESPONSE were whether they would (1) try to distinguish Campbell or Curry; and/or (2) cite any "in the interests of justice" cases to argue that the motion to reopen should be denied. It turns out that the answer to both questions is "no." First, there is no reference to either case in the State's RESPONSE. Second, after citing two Maryland cases -- Gray v. State and Harris v. State -- for the general definition of the "in the interests of justice" standard, the State doesn't cite any other cases or argue why they support denial of the motion to reopen. 

No Failure to Contact an Alibi Witness Cases Cited by the State

In his motion to reopen, Adnan's attorney cited several cases standing for the proposition that trial counsel is ineffective based upon failure to contact an alibi witness brought to her by the defendant. Two of these cases emerged from the Maryland state court system: In re Parris W. and Griffin v. Warden, Maryland Correctional Adjustment Center. The argument in the motion was that Adnan's case was just like Parris W., Griffin, and the other cited cases save for the fact that Adnan's alibi witness did not testify at his initial PCR hearing. 

This makes sense given that there is a Maryland case -- Veney v. Warden -- which stands for the proposition that a witness must appear at a PCR hearing to substantiate a defendant's claim. Unsurprisingly, this was the case relied upon by the State at the initial PCR hearing to claim that Adnan must be denied relief.

What this means is that the testimony by Adnan's alibi witness can make all the difference in the world. The State's argument in its RESPONSE is that, 

this Court, in rejecting Syed’s claim of ineffective assistance of counsel, did not dispute that Syed’s trial attorney, M. Christina Gutierrez, declined to pursue McClain as an alibi witness. Rather, armed with essentially the same information that Syed seeks a second opportunity to present, the Court found "several reasonable strategic reasons for trial counsel’s decision to forego pursuing Ms. McClain as an alibi witness," and properly denied Syed’s claim on the ground that counsel’s performance was not deficient based upon what Gutierrez knew at the time of her decision

This conclusion only makes sense, however, if a court is entitled to find that an attorney can refuse to contact an alibi witness for strategic reasons. Several of the cases cited by Adnan's attorney say that such a decision cannot be made, including Griffin, which involved the same court hearing Adnan's motion to reopen. By way of contrast, the State's RESPONSE does not cite to a single case in which a court has held that an attorney can choose not to contact an alibi witness for strategic reasons. As far as I can tell, none exist. Indeed, the clear lesson of Griffin is that an attorney cannot make a strategic reason to refuse to call an alibi witness at trial until after she has contacted that witness before trial.

 A Defense of Kevin Urick

In his motion to reopen, Adnan's attorney claimed that Adnan's alibi witness failed to show up at Adnan's initial PCR proceeding based upon a phone conversation that she had with Kevin Urick, one of the prosecutors at Adnan's initial trial(s). In its RESPONSE, the State notes how (1) Asia was wavering before she spoke to Urick; and (2) Urick would have no reason to intentionally dissuade Asia from testifying.

From my perspective, the problem with the State's RESPONSE is that it assumes Adnan's attorney is arguing or needs to argue that Urick acted in bad faith or was the sole cause of Asia's failure to appear at Adnan's initial PCR proceeding. But no such argument is required.

I did a post about this back in MayFirst,"[e]ven if the prosecutor's motives were impeccable," relief should be granted if he unintentionally played a role in a witness's decision not to testify. Second, a defendant "need not establish direct or exclusive causation." In other words, as long as the prosecutor is one of the reasons that a witness decided not to testify, relief should be granted even if other reasons played a role.

Indeed, the aforementioned Campbell case is arguably a case with a prosecutor who was neither acting in bad faith nor the sole cause of a witness opting out of testifying, and the Court of Appeals of Maryland granted relief. And indeed, this entire line of precedent stems from the Supreme Court's opinion in Webb v. Texas, in which a judge was acting in good faith but accidentally dissuaded a witness from testifying. In conclusion, the State's focus on bad faith and exclusive causation is misguided because neither bad faith nor exclusive causation in required.

The AT&T Cover Sheet

Recently, Adnan's attorney filed a Supplement to Motion to Re-Open Post-Conviction Proceedings, in which he sought admission of the the AT&T Cover Sheet. In its RESPONSE, the State claims that the court should not allow this evidence for two reasons.

First, the State claims that because Adnan was initially denied relief under the defective performance prong of ineffective assistance of counsel, the court should not consider the AT&T Cover Sheet, which is connected to the prejudice prong. The odd thing about this argument is that it was the State itself which invoked the prejudice prong.

In its Brief of Appellee, the State claimed, for the first time, that even if Adnan's alibi witness testified, it could have shifted its timeline to claim that the Best Buy call was the 3:15 P.M. call on Adnan's call log, meaning that Adnan couldn't satisfy the prejudice prong. In large part, the Supplement was the response to this argument, with the claim being that the State had made all aspects of the 3:15 P.M. call, including which cell tower it pinged, relevant. Indeed, I called this the strongest argument in the Supplement. It's kind of tough to argue that the court shouldn't consider the prejudice prong when the State itself is the one who invoked that prong. 

Second, the State claims that

The first page of Syed’s Exhibit 1 is an AT&T fax cover sheet, near the bottom of which is a boxed boilerplate legend titled "How to read 'Subscriber Activity' Reports." This generic cover sheet accompanied all documents faxed by AT&T to the detectives in this case, whether the attached document was a Subscriber Activity report or not.... 

The flaw in Syed’s argument is that the cellphone records relied upon by the State’s expert and entered into evidence at trial were not Subscriber Activity reports. They had no blacked out columns; they had none of the codes discussed in the boilerplate legend; they lacked a column titled "location." See State’s Exhibit 31. Accordingly, it is flatly erroneous to say that the statement about the reliability of incoming calls — which relates to Subscriber Activity reports — applies to the altogether different records used by the State. Indeed, the "Subscriber Activity" reports were neither identified as exhibits nor admitted into evidence. What was admitted into evidence were cellphone records accompanied by a certification of authenticity, signed by an AT&T security analyst, and relied upon by the State’s expert who himself was employed by AT&T as a radio frequency engineer

I have a few responses. The first is confusion. The State absolutely identified "Subscriber Activity" reports as exhibits and admitted them into evidence. Here is one example:

Screen Shot 2015-09-24 at 11.49.36 AM

My second thought is that the fact that the cover sheet accompanied all documents faxed by AT&T helps rather than hurts the defense case because it shows that any document sent by AT&T showing incoming tower pings was unreliable for determining location.

My third thought is that I wish I had a copy of Exhibit 31 to see what the State is referencing. The State definitely did introduce AT&T "Subscriber Activity" reports at trial that were accompanied by the cover sheet in question. Is its claim that it also introduced other AT&T documents that were somehow not governed by the cover sheet which the State claims accompanied all documents sent by AT&T? It's impossible for me to tell at this point, but I do know that the State introduced "Subscriber Activity" reports at trial, making the cover sheet relevant.

Note: I will be out of pocket from early this afternoon until Sunday night, so I probably won't be approving and responding to comments to this post. [Update: Plans were delayed, so I will be approving and answering comments.].



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Just on the fax cover note.

Its explained here what happened. https://viewfromll2.files.wordpress.com/2015/01/2-08-00-waranowitz-redacted.pdf

Page 125 to 128 particularly relevant.

CG and KU go toe to toe over exhibits 34 and 31. Exhibit 34 is objection sustained and excluded from testimony because it has addresses of towers on it. Exhibit 1 is in however and the witness testified to this document.

In Browns latest submission exhibit 34 was used as opposed to 31.

I get that both documents look alike but the wrong report was submitted. Again, this is just a simple error.

As far as the location of exhibit 31, Susan Simpson posted the header to it on her twitter about 30 minutes ago.

Posted by: Alan Mahon | Sep 24, 2015 9:44:41 AM


I think the best way to think about Griffin et. al. is that they stand for the proposition that ignorance or willful blindness to what could be important exculpatory information can never be characterized as a "strategic decision". It is ignorance or blindness.

Posted by: Daniel | Sep 24, 2015 10:01:22 AM

Thanks for this. Whether or not one believes in Adnan's innocence, the deliberate misstatement of facts in this case is truly disturbing and a perversion of what our system is supposed to stand for. I specifically can't understand how they can make the claim that they could have just changed the incoming call time to 3:15pm. How is that not laughed out of the courtroom? Alibi witnesses don't matter because we can always just present something different? I mean, it either happened the way you are saying, or it didn't. These type of claims are infuriating as a lay person as they make no rational sense. End rant!

Posted by: Sassy | Sep 24, 2015 10:03:15 AM

Thanks for the clarifications, Shan can we expect the judge to rule?

Posted by: Mp3mpk | Sep 24, 2015 10:06:16 AM

Interesting that the state still maintains the anonymous tip was on February 12th.

Posted by: katelyn | Sep 24, 2015 10:23:35 AM

Could it be that the State is arguing that it is not the *location field* in the reports that were relied upon in the case? Rather which tower was pinged when somebody is in a location. And thus the location field in the reports are not relevant to the case because the State never used that that field in its case.

Posted by: S | Sep 24, 2015 12:38:07 PM

Alan: Thanks. That makes sense. So, it seems like the cover letter definitely did cover the trial exhibit(s). I will check into this some more.

Daniel: Agreed. An attorney can’t predetermine which alibi witness will pan out and wbich ones won’t.

Sassy: Agreed,. I think many people are troubled by the State’s claim that it could simply have shifted the entire timeline. It kind of undermines the whole idea that guilt was proven beyond a reasonable doubt.

Mp3mpk: It will probably be a matter of months, but we’ll see.

katelyn. That’s still the official story. Hopefully, the State responds to the CrimeStoppers MPIA request soon.

S: I’m not sure. I’m struggling to find anything other than Subscriber Reports that we’re admitted into evidence. I’m going to withhold judgment until I have more information.

Posted by: Colin | Sep 24, 2015 2:15:07 PM

Can you comment on the State's assertion that the second application to expand was not timely and should be dismissed as waived? Also, will Adnan have an opportunity to rebut prior to the Circuit Court's decision? Thanks Colin. Helpful as always.

Posted by: SerialCompanion | Sep 24, 2015 4:09:18 PM

My (non-lawyer) take on the state’s argument is that they are saying: “At trial, we didn’t use the cell tower data provided (and disclaimed) by AT&T. Rather, we hired our own expert and did our own testing. It makes no difference what AT&T says about the cell tower data in its subscriber activity logs, because the cell tower data in its subscriber activity logs was not part of our case.”

If that is indeed what they are saying, then I have a few questions:

1. Is that true?

2. Assuming it is true, does it really matter? Presumably, AT&T puts that disclaimer there because, at least in Baltimore in Jan 1999, the cell tower data on incoming calls was considered unreliable for various technical reasons. Wasn’t Adnan’s lawyer trying to challenge the prosecution’s use of cell tower pings to establish Adnan’s location (which definitely was done at trial), not the prosecution’s use of AT&T subscriber activity logs to establish Adnan’s location (which, according tot heir brief, was not done at trial).

Imagine this hypothetical: AT&T puts this disclaimer on subscriber activity logs because, for some reason, there’s a glitch in their system that causes cell tower data on incoming calls to be full of typos (ie, cell tower pings on incoming calls are a completely reliable method for tracking the location of a cell phone, but AT&T subscriber activity logs are unreliable for doing same because of some weird software glitch). In that scenario, the state’s argument is on point.

But under a more realistic scenario, where the problem is that the incoming call cell tower data is itself not reliable for tracking the location of a cell phone, then that discaimer applies not only to the AT&T subscriber activity log, but also to the general proposition of tracking the location of a cell phone based on cell tower pings.

Since we know that CG had this disclaimer, we know she had information that would have given her a line attack against the use of cell tower data to establish Adnan’s location, whether or not the stste used AT&T subscriber activity logs to do so.

So is there still an IAC claim there?

3. Does the state having raised the issue of their expert witness in their response allow Adnan’s lawyer to challenge the expert? As I recall from your Ping episode, there were problems with the witness’ testimony that also went unchallenged by CG.

Posted by: Michael | Sep 24, 2015 4:36:54 PM

Can you please explain why Undisclosed claimed the visit to "Cathy's" wasn't on January 13, when in her police interview she says she remembers they talked about the fact it was Stephanie's birthday?

Is there a reason this police interview wasn't released?

Posted by: Seamus_Duncan | Sep 24, 2015 4:39:41 PM

SerialCompanion: I will probably cover that tomorrow. I don’t know whether Adnan’s attorney is entitled to a reply brief. This is uncharted territory.

Michael: Thanks for the insights and questions. I really have no idea what the State is arguing here. Hopefully, I will know more soon.

Seamus: We’re still vetting Cathy’s police interview. A big part of the problem is that the State provided two different transcriptions of the interview with some significant differences. For instance, I believe that the transcription that has been posted indicates that Jay said Adnan like heroin when that is pretty clearly not what was said. The plan was and is to cover the interview in a later episode.

As you can probably tell, in addition to what you cited, there are several other things in the interview that are “favorable” for Adnan. I say “favorable” because I don’t think it really matters whether the visit to Cathy’s place was on 1/13, especially if you don’t believe the burial was in the 7:00 hour, which I don’t. In the end, I think that Cathy was probably confabulating a few days in large part due to the detectives apparently telling her during the pre-interview that the day she was remembering was 1/13. As was the case with Jay, I’m sure that those pre-interview notes would be enlightening, especially if we knew what the detectives told Cathy about the day as opposed to vice versa.

Posted by: Colin | Sep 24, 2015 7:14:56 PM

Hi Colin,

My question is, because they used an AT&T employee wouldn’t he still be restricted by the disclaimer specifically when regenerating data, since
1) They are still using AT&T equipment
2) The conditions may not be the same (as discussed in the podcast episode)

My thoughts are there may be an even broader disclaimer for recreating data… I do not know about cell phone carriers, but I do know a little about industry. It is unlikely that his expert opinion is not covered by some sort of disclaimer. This may be similar to a question that you have already had, but it would be nice if you could comment on this.

Posted by: San | Sep 25, 2015 6:28:20 AM

Hi Colin,
I want to understand a little bit about the inner-workings of a State's attorney's office. Some specific questions include:
1. What type(s) of people wrote this response? Paralegals? Attorneys? If so, what kind of credentials would they have?
2. Did either or both of the two people who signed their name to the document have anything to do with its preparation? Did they set the general direction? Did they approve it and edit it? Do they stand to lose anything personally if it turns out to be "garbage"?

And so on.


Ken Florian

Posted by: Ken Florian | Sep 25, 2015 7:23:12 AM

First, your Asia argument is that since she called the prosecutor, whether he lied or not, to talk about maybe or maybe not testifying, about an alibi that may or may not even be true, means that Adnan should be awarded relief? Essentially you are saying that Because Asia called Urick, he should be freed.

Second, How can you with intellectual honesty continue to argue the lividity? You admit to have only seen about a third of the burial photos, and the guilters who have are claiming it is clear she was buried and found face and chest down. I am sorry, you are either being willfully ignorant or outright lying about your knowledge of the burial position. It is time for those photos to be released publically, ALL OF THEM.. I am growing disgusted by your side being willfully disingenuous, and the guilty side hoarding these photos.

Posted by: jlpsquared | Sep 25, 2015 7:33:43 AM

San: My assumption is that the disclaimer still applies for the reasons you list. We’ll see.

Ken: It seems as if the brief was written by the Deputy Attorney General, under the authority of the state Attorney General. The only thing they stand to lose (or win) is the appeal.

jipsquared: My argument is that if she made the call to Urick with any thought of appearing and testifying and left that conversation conclusively determining that she wouldn’t appear and testify, the PCR hearing should be reopened. The good faith or bad faith of Urick shouldn’t matter. That’s what the cited precedent says. Wouldn’t we want to give a defendant serving life + 30 the chance to have the witness testify under those circumstances.

I gave the ME the autopsy report, the autopsy photos, the trial ME’s testimony, and 8 crime scene photos, 4 of which depict the body before it has been touched and 4 of of which show the body completely or partially disinterred. It is my understanding that these 8 crime scene photos were the only ones that were authenticated and admitted at trial. As a result, the conclusions by the ME are based upon all the evidence filtered through the rules of procedure and evidence, which is the only evidence I have. There have been claims that other unauthenticated crime scene photos exist. I have no access to or control over those photos, and I also don’t see how the can contradict the fact that the ME was able to confirm frontal lividity on the abdomen.

Posted by: Colin | Sep 25, 2015 7:50:10 AM

Hi Colin,
Thanks so much for helping to break this down!

I do have a few questions:
1.Is this the sort of response you expected from the prosecution?
2.What does this mean for Adnan, will it effect his chances of winning a new appeal significantly?
3.How long can we expect to wait now to hear the outcome?

Once again thanks to you and the rest of the undisclosed team and all your efforts to free this poor innocent man.

Posted by: Mkay | Sep 25, 2015 8:18:14 AM

Colin - I'm also wondering what's your general impression of this brief. Is it the sort of thing the defense was expecting in terms of the care and professionalism that went into it? My impression from your analysis is that it's lacking substance, but is this just the defense making the best of a bad situation? If they were really concerned about the wheels coming off a high profile case, wouldn't preparation of a persuasive brief be a top priority. The first missed deadline and the timing of the final submission make it look to an outsider (like me) that they're not taking this process seriously. Am I mistaken? Maybe this is the normal process.

Posted by: Tor Hylbom | Sep 25, 2015 9:31:21 AM

You're still vetting the interview? Yikes man. Do you even listen to yourself?

Posted by: Steve | Sep 25, 2015 10:25:28 AM

Mkay: 1. Yes. 2. I think the Stat’s brief increases the chances the hearing will be reopened. 3. Probably a few months, but you never know.

Tor: I just don’t think there was much precedent the State could cite, which explains the areas in which the brief is lacking.

Steve: Here are some of the issues involved: (1) Multiple, different transcripts of the same police statement. (2) A police statement having an earlier date than the date the interview was purportedly conducted. (3) Inconsistency regarding where the interview took place. (4) What certain notations in interview notes mean (e.g., ** before a notation.

Posted by: Colin | Sep 25, 2015 10:40:47 AM

I tried to post this earlier, but it may not have gone through. My question is, how is the State's expert's testimony relevant in any way, considering that he conducted his testing by making outgoing calls near the various locations to confirm that those towers that were closest would ping for calls made near them. But did he receive incoming calls at those same locations to see whether the towers pinged? If not, then the only information we have about the location data is what is stated on the AT&T cover sheet - that the tower that is pinged on incoming calls is NOT reliable for determining the location of the phone. The expert's testimony regarding the "Leakin Park Pings" is totally irrelevant for incoming calls, and the AT&T cover sheet is extremely relevant.

Posted by: Ann | Sep 25, 2015 10:51:52 AM

Colin? Come on? Are you calling him a liar? He has the photos and claimed they clearly show Hae prior to her removal from the burial site, face and chest cavity down. Now, I don't know, it would be nice for someone to make these pictures publically available, but either you, or he is lying. But I don't know who? The good news for you and your fans, is that I have also made an MPIA request for ALL police interviews and ALL burial photos. I considered getting Autopsy photos but I really don't care about them as much. And unlike Undisclosed or the guilters on reddit, I will make all police files and all pictures publically available so people can make their own minds up on this case. I am guessing between 2 and 3 weeks.

BTW, again thanks for allowing others with viewpoints that differ from your own to post on your site. You are a bigger person than either Rabia or SS put together.

Posted by: jlpsquared | Sep 25, 2015 11:23:19 AM

Ann: Great point. The judge indeed almost excluded the cell phone evidence at trial based on the same points you are making.

jipsqaured: I’m not calling anyone a liar. Authentication is the process by which an attorney claims, “Exhibit X demonstrates Y” and establishes that Exhibit X in fact does demonstrate Y. As I said, the ME has seen the trial crime scene photos, several of which were authenticated as showing the body before it was disinterred. Based upon these photos, she was able to confirm front abdominal lividity and that burial position was inconsistent with lividity.

I’ve never seen the unauthenticated crime scene photos, I don’t know what they are supposed to demonstrate, and I don’t know whether they demonstrate what they are supposed to demonstrate. I also don’t know whether they are being interpreted correctly. It’s not difficult to imagine a non-expert reaching a mistaken conclusion about whether burial position matches lividity. Also, as I said before, even if these unauthenticated photos show face and chest down, I don’t see how that could be consistent with front abdominal lividity given that no one seems to dispute that the lower body was basically perpendicular to the ground.

Posted by: Colin | Sep 25, 2015 12:31:14 PM


According to this source, the head and trunk were only perpendicular AFTER the body was removed from the grave. He claims the picture shows the head and trunk as buried were parallel to the ground. At this point I don't know which one of you is lying, but I will know myself, and so will the world, in 2-3 weeks when I get those photos.

Posted by: jlpsquared | Sep 26, 2015 1:35:29 PM

Thank you for your clear, precise blog posts breaking down the legal issues at hand. The class and dignity with which you handle these reddit trolls is commendable. You are a class act!

Posted by: Joanna | Sep 26, 2015 2:54:52 PM

jlpsquared - Listen to Serial Dynasty's epidsode this week. He may be lying too... just another person joining the Undisclosed conspiracy? I hope that if you do get the photos you are completely honest with what you see. If Bob's description of her right hand is accurate, I do not see how she could possible have her trunk COMPLETELY flat on the ground as is suggested (which sounds impossible anyway).

Posted by: narizarielka | Sep 27, 2015 2:30:46 PM

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