EvidenceProf Blog

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

Friday, October 30, 2015

A Law Student Was in Charge of Subpoenaing Don's Work Records From LensCrafters

A commenter on my post yesterday asked the following question: "Can you please clarify by what you mean that the clerk was 'in charge' of his alibi defense?" I'm glad the question was asked because it caused me to re-examine a defense file for the first time in a while. That file has a chart with the following columns:

Screen Shot 2015-10-30 at 6.38.50 AM

In the chart, the alibi task was assigned to a law student. That same law student was assigned with the following task, among other tasks:

Screen Shot 2015-10-30 at 6.40.52 AM

With this information, I finally understand this part of one of Susan Simpson's blog post:

The subpoena was not limited to Don’s employment records with the Owings Mills location. In fact, Gutierrez’s motion identified Don as an "employee of the Hunt Valley Lenscrafters store." All records concerning Don’s employment at LensCrafters should have been produced, but the Hunt Valley location was the only store that the defense identified by name.

Previously, I had wondered how Gutierrez, who signed the motion for issuance of a subpoena, could have made a mistake on a vital piece of information that could have had a huge impact on the information received from LensCrafters.* It turns out that the motion was likely prepared by a law student, with Gutierrez then failing to fact check that motion or not being aware that Don was an employee of the Owings Mills LensCrafters.

I can understand the law student's mistake. The motion was filed on September 24, 1999:

Screen Shot 2015-10-30 at 6.49.27 AM

As I noted yesterday, this law student was probably juggling classes and other responsibilities with a few hours of work at Gutierrez's law firm once or twice a week. It's completely understandable that he would have made such a mistake; what's less understandable is Gutierrez failing to catch it or assigning him the task in the first place in a murder case.

Maybe at some point I will do a post on all of the tasks assigned to law clerks in this case. Perhaps the most interesting one is a notation we mention in a prior episode of Undisclosed. That note listed the name "Syed" circled next to the name of a medical examiner, with a line from the circle pointing to the words "for [law clerk]." That law clerk was actually a second year law student.


*As we know, LensCrafters response to the subpoena was incomplete although possibly/probably not based upon this error.



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Geez...the ineptitude of this defense just gets more and more clear. "Worst luck ever" might be an understatement.

Posted by: tavoris78 | Oct 30, 2015 4:33:41 AM

So had the Hunt Valley store not been named do you think LensCrafters Corporate would have sent all of the work records rather than only the single (known false) time card?

Posted by: Megan Pawlak | Oct 30, 2015 5:37:36 AM

tavoris78: Yes. As I've said before, hiring Gutierrez was the unluckiest part of Adnan's case.

Megan: I don't know what would have happened if the motion for a subpoena were done correctly. I also don't know what to make of the single time card produced from Hunt Valley. Hopefully, we will get some further clarification on the issue. The unfortunate thing is that all of this wasn't sorted out back in 1999/2000.

Posted by: Colin | Oct 30, 2015 6:19:53 AM

Can you clarify exactly how many times a law student visited Adnan unaccompanied by an attorney? Were any of these visits during the school year?

Assigning tasks to law students does not mean that the law student is unsupervised. A subpoena request is boilerplate. CG thought Don worked at Hunt Valley because they had the police notes stating he was working at Hunt Valley on January 13, 1999. Why would it be a huge screw up to subpoena the records from the store where he claimed to have been working on the day of the crime?

Posted by: Jane | Oct 30, 2015 6:53:54 AM

While we're discussing the LensCrafter response, the letter from the paralegal and the employee schedules for the Hunt Valley store that were sent to the prosecution makes me wonder if an implicit suggestion was being made to Urick that the matter was deserving of further investigation.

Posted by: HSMockTrialCoach | Oct 30, 2015 7:06:26 AM

Jane: The law clerk/student who visited Adnan most often in prison visited him on 8/21/99, 10/6/99, 10/9/99, 11/6/99, and 1/15/00 (I might be missing a couple of other visits). That clerk was not accompanied by an attorney on any of these visits. If the law school calendar for the clerk’s school in 1999-2000 is similar to the calendar in 2015-2016, all of those visits would have been during the school year.

The subpoena request in this case was not boilerplate. We will discuss this in our discovery episode. There was a lot of precedent and legal analysis in it, and they had importance in terms of what happened.

I’m not saying that listing Don as a Hunt Valley employee was a huge screw up or that it had huge consequences. I’m just saying that the incorrect facts in the subpoena request easily could have resulted in getting an incomplete disclosure, which ended up being the case (although possibly not based on the error).

HSMockTrialCoach: Again, I wish this were investigated back in 1999/2000. I don't know what to make of it.

Posted by: Colin | Oct 30, 2015 7:07:55 AM

There also seems to have been a lack of communication among those who worked the case. Details from visits with Adnan were lost, not followed up, and did not appear at the trial. Details can raise "reasonable doubt".

Posted by: BruceinPhilly | Oct 30, 2015 7:33:12 AM

Any idea why the subpoena was sent to the manager of the Lenscrafters store in a Towson Mall? The subpoena itself doesn't mention that Don or Hae are employees of any particular store. Would LC have received a copy of the motion to the court that did mention Hunt Valley, or just the subpoena?

Posted by: KC | Oct 30, 2015 8:02:39 AM

Surely a subpoena for Don of Hunt Valley should have either just thrown up the Hunt Valley time card or the Hunt Valley and Owens Mills time cards - but it's my understanding that they actually initially returned only the Owens Mills time card - which makes no sense to me, if the other time card actually existed at the time.

Posted by: PeculiarJulia | Oct 30, 2015 8:13:30 AM

BruceinPhilly: Exactly. A think that a lot of this had to do with the turnover at Gutierrez’s office. An associate who worked solely for Gutierrez left the firm in February 1999 and was not replaced at the firm. A second associate initially worked on Adnan’s case but then left in July 1999 and was not replaced at the firm. A third associate then worked on Adnan’s case and possibly left before or during Adnan’s second trial. Throw in the fact that 1 of 3 named partners left the firm in October 1999 and the fact that a former attorney was suing the firm in 1999/2000, and you can see how things might have taken a number of wrong turns in Adnan’s case.

KC: I don’t know about the subpoena being sent to the Towson manager.

PeculairJane: Yes, the whole thing is odd.

Posted by: Colin | Oct 30, 2015 8:18:34 AM

Thank you for your response. Do you think it would have been a good use of CG's time to be making all of these jail visits personally? Based on the information disclosed thus far, we know Adnan was visited by attorneys (sometimes accompanied by a law clerk) 21 times between his arrest and September 17, 1999. He also was visited on at least 4 occasions between July 1999 and January 2000 by a law clerk on his or her own. (I have not seen any information about attorney visits in the Fall/Winter of 1999, but I am sure there were more.) Do you truly believe that this number of visits is low? I think it is astonishingly high.

Posted by: Jane | Oct 30, 2015 8:46:40 AM

Herodotus: Thank you for the answer. I have a followup: My understanding is that it is not uncommon for law clerks to research and do the foot work/some of the investigative work for the lawyer; why charge a client $200-300/hr to ask a client some questions when a clerk can be sent to serve the same function? Is it inaccurate to say that it is CG's job to look at the "big picture" and evaluate/strategize how the investigative work done by the clerk can be used?

Jason: In 1999 I started practicing law as an assistant state attorney in Florida. At that time, Florida had a "Certified Legal Intern" designation ("CLI") that permitted law students to appear in court on behalf of the state or public defender under the supervision of a licensed attorney. The CLI designation required certain coursework in criminal procedure, trial practice and evidence. Ultimately, the supervising attorney was responsible for the work of the CLI, but at least there were standard prerequisites. Do you know whether Maryland had such a designation at that time?

WVTarheel: So Professor Miller: After your vague "some" answer, I decided to try to find some actual documentation. http://imgur.com/a/NrSez It appears that most of the law student visits were before school started in mid-august, and Gutierrez met with Adnan Syed herself many many times often accompanied by law clerks. Unless you have access to other documentation, I don't think your post is backed up by the facts in this case.

CM Note: These are comments I’m moving these over from the prior post, which reached the maximum number of comments. Here are my responses:

Herodotus: You are correct that, whatever work was done by clerks, Gutierrez had the responsibility of putting the “big picture” together.

Jason: We have something similar in South Carolina, and we had something similar in Virginia. I assume that Maryland also has something similar. This typically leads to third years students handling misdemeanors, DUIs, etc.

WVTarheel: I do have access to other documents. As I noted in this post, the clerk who visited Adnan most often had all 5 of her visits with Adnan occur during the school year (at least based on the 2015-2016 calendar). The clerk was not accompanied by an attorney on any visit. Also, one and possibly both of the associates who visited Adnan in prison were no longer working for the firm during Adnan’s second trial.

Jane: It's not about the quantity; it's about the quality (control). We have an affidavit indicating that an alibi witness clearly presented by Adnan to a clerk was never contacted by the defense team. We have another note implying that a clerk was tasked with contacting a medical examiner who apparently was never contacted. Either of those loose ends easily could have resulted in an acquittal.

Posted by: Colin | Oct 30, 2015 8:47:31 AM

[Accidentally posted this on the other post first. Ignore that.] Well, you didn't answer my question. Do you think it would have been better for CG or other attorneys to be meeting with Adnan more frequently. You emphasize that one law clerk was the "primary source of communication with Adnan" (which doesn't seem true, given the number of attorney visits I have highlighted), but you don't explain why this is a problem or why it would have been a better use of an attorney's time to go to the jail (given the time suck involved there). The fact that one task sheet assigned alibi investigation to a law clerk does not by any means suggest to me that a law clerk was "in charge" of that task independent of any attorney. The fact that Asia doesn't appear in any notes until July 1999 when Adnan reportedly received the letters in March 1999 seems much more troubling. Do you know if he told Flohr/Colbert/Davis about her?

Posted by: Jane | Oct 30, 2015 9:19:03 AM

Jane: That’s my point about quantity vs. quality (control). It’s quite possible that Adnan’s library alibi was first mentioned when a law student was visiting him without an attorney. That’s perfectly fine as long as there is quality control in the sense that there is immediate reporting to the attorney on the case so that there can be follow-up. The problem in this case was that there was no quality control, as shown by the affidavit about not being contacted by the defense team.

I don’t know whether Flohr/Colbert/Davis knew about the library alibi. I also don’t know whether it was first raised in July. We have the undated notes that appear to be in Gutierrez’s handwriting that reference the library alibi. I don’t know when and under what circumstances those were taken.

Posted by: Colin | Oct 30, 2015 9:24:44 AM

I read something online(can't remember where) that says the people who produced the work records were actually related to Don. They were his mother and stepmother or some such relation. And he lived with both of them. Have you investigated that at all or was that just made up story?

Posted by: jessica | Oct 30, 2015 10:25:05 AM

Are law students working for an attorney generally paid as a part time employee, or are they unpaid interns? It seems to me that "you get what you pay for" in this case doesn't hold true: Adnan's family and supporters paid top dollar for their "bulldog" defense attorney, but got students instead. No offense to the students, the whole point was to learn and get experience, but seems like Adnan got shafted.

Posted by: JoAnn | Oct 30, 2015 10:32:24 AM

This keeps getting more and more ridiculous. If you wrote this as fiction nobody would publish it, on the grounds that it's unrealistic.

Also, 'chivvis' needs to become a verb, referring to the utterance of a sarcastic statement which then backfires spectacularly.

Posted by: Squatch | Oct 30, 2015 10:47:30 AM

Law students had no special designation in Maryland at that time. Law schools had clinics where students acted on behalf of clients under supervision of licensed attorneys in landlord tenant court, criminal misdemeanors, small claims. cg's use of students is beyond anything I would have a student do. And it is obvious that the students did not get close supervision. The secretary probably supervised more than CG.

Posted by: Linnette garber | Oct 30, 2015 11:52:29 AM

jessica: That comes from Bob on his podcast. I haven’t done any investigation of my own into anything relating to LensCrafters.

JoAnn: Sometimes, students work for pay and sometimes they work for credit.

Squatch: The “unlucky” comment was the one comment from Serial that really rubbed me the wrong way. Every wrongfully convicted person is spectacularly unlucky. You could do a podcast about anyone who has been convicted and reach the conclusion in the final episode that the person must be very unlucky if (s)he is actually innocent.

Linnette: Thanks for the clarification.

Posted by: Colin | Oct 30, 2015 12:06:38 PM

Can you explain what Don's employment records from Owings Mill would have to do with his alibi for January 13th, thanks.

Posted by: BonaFide | Oct 30, 2015 1:04:26 PM

I just have to repeat your statement-“An associate who worked solely for Gutierrez left the firm in February 1999 and was not replaced at the firm. A second associate initially worked on Adnan’s case but then left in July 1999 and was not replaced at the firm. A third associate then worked on Adnan’s case and possibly left before or during Adnan’s second trial. Throw in the fact that 1 of 3 named partners left the firm in October 1999 and the fact that a former attorney was suing the firm in 1999/2000,” If this was the only problem in this case, IMO it still is a big issue! 3 assoc. left & one partner left & the office was getting sued within a year? Something strange was going on, IMO.

Posted by: Sunny | Oct 30, 2015 1:43:51 PM

'A second year law student' following up the Medical Examiner in a first degree murder case where the only evidence of time of death, possible location of death and possible killer could be determined by the Medical Examiner? Yeah, Gutierrez was all over this case.

Posted by: FarFarAway | Oct 30, 2015 4:51:56 PM

BonaFide: I don’t think that they would. I was just noting the misstatement of fact on the motion for a subpoena and how it could have caused problems.

Sunny: Right. Any of the individual pieces of evidence I’ve mentioned in my last several posts isn’t that big of a deal, necessarily. Together, though, the paint an interesting picture.

FarFarAway: I would love to know what happened in the Nicolas case, which involved a similar scenario.

Posted by: Colin | Oct 30, 2015 6:14:59 PM

Are student law clerks held to the same confidentiality standards as attorneys and paralegals? Might one of these clerks have been the 'leak' to the prosecution?

Posted by: Terri | Oct 31, 2015 1:34:48 PM

Jane - given the fact that, in the time leading to Adnan's trial, Gutierrez was bouncing back and forth across the US and Puerto Rico racking up murder cases as if they were limited edition Beanie Babies, I doubt she could've visited Adnan even if his life depended on it. Oh, wait...

She was so out of it that she was mixing cases up, failing to do due diligence WRT alibis and exculpatory evidence, and practically bankrupting clients by charging ever escalating fees for services that were never rendered.

I know some people are so dedicated to the 'Adnan did it!' theory that they'll perform the most spectacular mental acrobatics to handwave away evidence to the contrary, but surely logic has to kick in at some point, no?

There is literally no credible evidence whatsoever to support the State's case, so Team 'Adnan did it!' seem determined to nitpick at new information, being legalistic and pedantic to tey 'prove' a point. It's equivalent to someone being run over by a double decker bus, and then freaking out because their nail polish is chipped.

The fact of the matter is that Gutierrez was representing clients accused of murder in Maryland, Pennsylvania, Puerto Rico, Alabama, and Maine. That's what makes the over reliance on students so damning, became they weren't under her direct supervision, so errors and omissions were never picked up on. That would've been bad enough in a case involving drunk driving or shop!ifting, but murder? That's breathtakingly unethical.

Posted by: Squatch | Nov 2, 2015 10:01:47 PM

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