EvidenceProf Blog

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

Tuesday, October 20, 2015

Professor Colbert's Affidavit About the Thoughts of the Jurors After Adnan's Mistrial

In the Addendum to the 11th Episode of the Undisclosed Podcast, we made the argument that the State's misleading disclosures in connection with Exhibit 31 and the cell tower evidence was a Brady violation because the cell tower evidence could very well have been the difference between a "guilty" and a "not guilty" verdict. As support, we cited to Professor Colbert's affidavit, in which he noted that the majority of jurors were prepared to return a "not guilty" verdict when the first trial ended in a mistrial. That mistrial was after the State had presented most of its case and the defense had presented none of its case. At the time of the mistrial, the only State's witnesses who had not testified were Jennifer Pusateri and the AT&T cell tower expert. Therefore, there is strong evidence that the cell tower expert was the key to the State's case. 

In response to the Addendum episode, however, I got a few e-mails asking about Professor Colbert's affidavit and realized that we hadn't posted it to the Undisclosed website. Here is his affidavit:


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What were the circumstances in Trial #2 that led to Adnan's bail being denied again?

Posted by: kc | Oct 20, 2015 6:47:32 AM

Wow! Thanks for sharing that. Have you been in touch with Mr. Colbert? He would be a great interview for your podcast. I hope he is still following along with this case.

Posted by: Christine | Oct 20, 2015 7:45:45 AM

Really interesting, especially how he unequivocally goes to bat for Adnan's innocence.

Posted by: Sassy | Oct 20, 2015 8:13:54 AM

Unrelated, but any news on what is going on with Deirdre Enright? Are she and her group still involved with the case, working either together with or separately from Adnan's attorney?

Posted by: Andreana | Oct 20, 2015 8:25:25 AM

Regarding yesterday's episode, a few months ago you discussed a document in which Adnan describes meeting with Bilal at the mosque on 1/13, and you said you'd discuss it in an upcoming episode. I don't see this document on the website. Is this going to be posted?

Posted by: Seamus_Duncan | Oct 20, 2015 10:10:17 AM

kc: I don’t know. I can’t find any records of the bail hearing that ostensibly took place between trials.

Christine: He was out of the country when we recorded the bail episode. Maybe we will record something with him down the road.

Sassy: Indeed. I think it says a lot that Adnan’s attorneys from 2/28-4/13 strongly believe in his innocence.

Andreana: The case was kicked up from the law school clinic to the national organization.

Seamus: That document consists of the notes for Adnan’s 1/14 talk that he went over with Bilal on 1/13. We will probably post them on the Undisclosed website after next week’s Addendum, or I will do a post about them.

Posted by: Colin | Oct 20, 2015 10:22:32 AM

Since this jury was not believing the state up to this point what was the makeup of the second jury? I mean 2 hours to unanimously find Adnan is insane to me considering the mistrial. Obviously KU learned from the mistakes of the 1st trial and got a second chance. Was the second jury selection process different than the second one? Was CG involved in the first jury selection?

Posted by: Mark | Oct 20, 2015 10:54:33 AM

Maybe if you just posted everything you have, you wouldn't keep getting asked to post bits and pieces... Why are you still finding relevant documents that you haven't posted?

Posted by: Dangermom | Oct 20, 2015 11:13:52 AM

Here, Mr. Colbert's affidavit is signed under penalty of perjury. Yet the affidavits by William Kanwisher, Krista and Abraham Waranowitz in Justin's reply were not signed under penalty of perjury. But the affidavit by Gerald R. Grant, Jr. in Justin's reply was signed under penalty of perjury. Why are some signed under penalty of perjury but not others?

Posted by: Anna | Oct 20, 2015 11:51:57 AM

I don't know if this matters as a legal thing, but I don't think it mattered that much to Adnan's jury. It's not.mentioned to Koenig, whereas his "Arab culture" and not getting on the stand have stayed in their memory.

Posted by: Bacchys | Oct 20, 2015 12:01:36 PM

Mark: The jury selection process was the same at both trials, and Gutierrez was involved with that process at both trials.

Dangermom: We tend to post documents as we talk about them on the podcast.

Anna: I’m not sure because I wasn’t involved in the signing of the affidavits.

Bacchys: We really have no idea, right? What we do know is that the jury at the first trial seemed to lean toward a “not guilty” verdict before hearing the cell tower evidence. Obviously, there were a lot of variables between trial #1 and trial #2. I think that what the jurors said after the first mistrial certainly shows that the cell tower evidence could have played a role, whether consciously or unconsciously.

Posted by: Colin | Oct 20, 2015 12:35:53 PM

Hi Colin, First off, thank God for people like you and your colleagues who are fighting for truth and justice! After listening to Serial and now Undisclosed, I can't help but wonder if any of the jurors from Adnan's 2nd trial have contacted anyone associated with the podcasts or ongoing investigation efforts? Trying to put myself in their place, I can't help but think I would feel both outraged and horrified at learning about all of the half-truths, outright lies and manipulations that went on. It is not their fault that they based the conviction on an incompetent defense and dishonorable prosecution. However, staying silent upon hearing the facts of the case, if any have, is entirely on each of them.

Posted by: Peggy | Oct 20, 2015 1:07:31 PM

Wouldn't the notes of Bilal's grand jury testimony, describing his seeing Adnan at the Mosque on the 13th to go over the notes for the 14th's presentation, also be considered corroboration of any other notes mentioning Bilal and the Mosque on the 13th?

Posted by: Dragga | Oct 20, 2015 2:15:50 PM

I did not get to reply to your prior post on Exhibit 31 because it was over the comment limit. Two posts ago you link to the Reply brief and call it "interesting". I've finally found time to read it and I call it explosive. Up until now I've been willing to give the state the benefit of the doubt but if the allegations in the reply brief regarding a Brady violation are true (and it's difficult to tell if they are true because you only link to the brief and not to the exhibits it references) then the whole case has been turned on its head.

It has been turned on its head because the only possible conclusion is that Ms. Gutierrez's provided "ineffective assistance" because she was deliberately misled by the state. In your prior post you make much of the fact that it is incredible that she did not read key evidence (Exhibit 31). But why would she? She would not have even known what she was looking at. It is one thing for the state to go "opps, we forget the cover sheet" but it is an entirely different thing to have excluded the other page that indicated it was a SAR. Once might be an innocent mistake but twice--no--that was intentional.

The colloquy referenced in your prior post is not evidence of an attorney providing ineffective assistance, it is evidence of an attorney getting sandbagged. Indeed, as far as I can now tell it seems that the judge was in cahoots. The judge knew she was going to be surprised and as soon as the prosecutor set her up the judge delivered the knockout blow.

Up until this time I had treated this case casually as just another "bad attorney" case. Not any longer. Something stinks in the state of Maryland and it isn't rotting fish from the Chesapeake Bay. It's the stink of suborning justice.

Posted by: Daniel | Oct 20, 2015 2:18:59 PM

Regarding the latest episode, I find it strange that there is only one person who remembers Adnan at the mosque on the day in question.

Posted by: S | Oct 20, 2015 3:50:55 PM

Dragga: Yes, it would.

Daniel: Thanks for the comment. I agree.

S: First, Gutierrez seemingly failed to contact (m)any of the other Mosque members. Second, the Mosque members were going to the Mosque every night during Ramadan. It’s completely unsurprising to me that they couldn’t remember whether Adnan was there specifically on January 13th. I don’t take roll in my classes, and I wouldn’t be able to tell you whether a certain student was in class on a certain day weeks/months after the fact.

Posted by: Colin | Oct 20, 2015 4:17:26 PM

"Long time listener, first time..." I've really enjoyed your commentary on the podcasts and this blog. I had a few questions.

I think I recall the podcast correctly. Mr. Colbert's representation of Adnan in the spring was for the bail hearings? Was he still an attorney of record at all, because it seemed like he "polled" the jury as a 3rd party,? Is this unusual?

I'm still reeling from the latest filings in the case. Did either party request a hearing? I'm not too familiar with criminal procedure, but in civil matters in Maryland, either party can request a hearing, which is often granted, or the court may decide on its own to have one, but there was no requirement to have one--of course this proceeding is unusual in many respects.

Finally if/when a retrial may happen, is the prosecution restricted to the theory of the case it used in trials 1 and 2 (via charging documents or something else,)? Can it try and avoid the disclosed mistakes and holes in its case by proffering an entire new theory?

Thank you for your time.

Posted by: Aurora | Oct 20, 2015 5:01:26 PM

Thanks. One more thing. Do you know how the police got to Bilal? Was there an informant there also?

Posted by: S | Oct 20, 2015 5:05:49 PM

Rabia mentioned on the last episode of Undisclosed that Bilal did not answer Vicki's question - did Adnan tell him he was involved in Hae's murder. Did he not answer, or is the testimony missing? If he did not answer, does that mean he did invoke his 5th amendment right on that question?

Posted by: kc | Oct 21, 2015 5:07:52 AM

Aurora: Colbert was not Adnan’s attorney of record at trial, but he still attended based on his interest in the case. Adnan has filed a motion to reopen, and the State has opposed that motion. The court needs to hold a hearing before reopening. If there is a retrial, the State could argue a new theory of the case.

S: I don’t know.

kc: My understanding is that he testified that Adnan did not tell him he was involved in Hae’s murder.

Posted by: Colin | Oct 21, 2015 7:29:52 AM

Hi Colin, Could the questions at the grand jury to Bilal regarding hotel rooms possibly be a "warning" to him that they knew of pedophilia and would prepared to expose if he continued in testify in trial?

Posted by: Jessica | Oct 21, 2015 10:33:27 AM

Hi Colin, another great podcast. I'm wondering, do you think there is any connection between the police asking one of Adnan's friends if he and Hae had ever gone to a hotel and Bilal also being asked about staying in a hotel? Since it was brought up to two different people on two different occasions, it makes me wonder if there was a specific reason for it.

Posted by: Penny | Oct 21, 2015 2:17:42 PM

Jessica: Your guess is as good as mine.

Penny: This whole hotel thing is weird. I wish I had some more insight.

Posted by: Colin | Oct 22, 2015 4:45:37 PM

Colin - were they asking about the hotel only after Hae was found? If yes, could it be as simple as the police understanding basic lividity and knowing Hae was on her stomach for several hours so they're fishing, trying to figure out where she was located for those daytime hours? They have already zeroed in on Adnan by this time and they know he doesn't have a van and she couldn't have been at his house, so a hotel is just where they figure he must have left her? Two teenagers who maybe sometimes hooked up at a hotel? it's not that much of a stretch in their eyes. Obviously I don't believe this is what happened, and maybe there is more to it, but this seems like a simple explanation as to why they're asking about hotels. Doesn't explain the questions to Bilal about years prior, unless they think he secured hotel rooms for other minors at some point.

Posted by: Sassy | Oct 23, 2015 7:54:27 AM

mr S streaking conviction sounds like a plea bargain for a person caught having outdoor sex at wooded cruising site. Trespassing,disorderly conduct, or in park after hours are other common charges. Mr S inability to explain why he was at linkin park location,since it wasn't on his way= he was there to cruise. I am not from the baltimore area, but i am sure the lgbt community from that era could verify if linkin park location was used as cruise site. The police would know it was a cruise site by debris on ground. Crime scene pictures would have evidence of cruising, which may explain why no crime scene photos, but why they would want to cover this up? -something is very wrong., as in MR B arrest and dismassal of charges. Sounds like Mr B was followed as they knew what he was planning, who told that jurisdiction to follow him. What was location where he was caught in car?

The Mr B and motel questions in grand jury and motel questions police have asked of many people =sounds like they were looking for legal but embarrassing male/male sex rendezvous or underage sex rendezvous. Mr B purchasing of phones,cars etc sure sounds like he had relationships that all would like to keep quiet. 16 years ago guy/guy sex outing would ruin someone's life,employment -even if it was legal

Posted by: galvoguy | Oct 26, 2015 3:49:31 AM

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