EvidenceProf Blog

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

Thursday, October 15, 2015

Exhibit 31 Was the Cause of the Mistrial at Adnan's First Trial

Last night, we premiered "Exhibit 31," the Addendum to the 12th episode of the Undisclosed Podcast. The episode's title is based upon the key cell tower exhibit that now forms the basis for Adnan's claim that there was a Brady violation. Exhibit 31 was also the exhibit that led to the mistrial at Adnan's first trial. It is also further evidence of Gutierrez's ineffective assistance.

Here is what prompted the mistrial at Adnan's first trial:

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Now, one possibility is that Gutierrez was in fact lying because she had looked at Exhibit 31 before stipulating to its admission.

The other possibility is that Gutierrez was telling the truth. In this case, there is no way that her conduct is defensible. According to Gutierrez, she stipulated to the admission of what turned out to be the key piece of evidence at Adnan's trial without even looking at it. In her own words, she didn't care about the exhibit Then, she got involved in a semantic debate with the judge at a trial Adnan was apparently winning, prompting a second trial that led to additional legal fees and a guilty verdict. 

I've said before that Gutierrez stipulated to the admission of more important, and debatable, evidence than any other attorney in any other case I've seen. If the other stipulations were anything like this one, these stipulations were not the result on reasoned decisionmaking; they were the result of laziness. Or Gutierrez was lying. It's one or the other.

Thankfully, Gutierrez's insouciance shouldn't have a bearing upon Adnan's Brady claim. Sure, it seems apparent that Gutierrez wouldn't have done anything even if the State had been forthcoming about the nature of Exhibit 31. Under Maryland law, however, this doesn't matter. As we noted in the Addendum, according to the Court of Appeals of Maryland in State v. Williams,

The caliber of the defense counsel's performance in cross-examining the critical State's witness has little, if any, bearing on materiality. We certainly are not inclined to make the test of materiality of undisclosed evidence depend on the capability or actual performance of opposing counsel in conducting cross-examination of an adverse witness. This case addresses the duty of the State, a duty that is not discharged no matter how well a defendant's counsel handles his client's defense and how expertly he or she endeavors to neutralize damaging evidence. "In gauging the nondisclosure in terms of due process, the focus must be on the essential fairness of the procedure and not on the astuteness of either counsel."



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Does Justin create any risk by trying to pivot from Strickland to Brady in his filing?

Posted by: AdditionalCoffee | Oct 15, 2015 8:14:49 AM

This is so shocking. I'm not a lawyer, but I really can't believe that anyone would stipulate to ANY evidence without first reviewing. She didn't care?! What? She clearly had NO idea what this case was all about. With her representing, Adnan never stood a chance. So disheartening. The most unlucky man indeed, Sarah Koenig.

Posted by: Sassy | Oct 15, 2015 8:30:06 AM

I remember commenting and your response about Subscriber Activity reports and now feel good that my confusion was shared by the State (well, I feel good that it wasn't just my misunderstand . . . I feel horrible the State is incompetent). Your work (along with Rabia & Susan) finding this clear Brady violation (as you strongly show using Maryland case law) is very compelling. My question is on the timing of the judge: I know the State can respond (I mean Comedy Central should be interested in that!) but what is the next series of steps? Ruling, appeal . . . but if ruled Adnan deserves a new trial, would he be released until that ruling is reversed or upheld? Thank you again, Evidence Prof!

Posted by: BK | Oct 15, 2015 8:31:15 AM

There has been discussion elsewhere that Gutierrez was able to successfully object to Waranowitz testifying about Exhibit 31, on the grounds that billing records were outside his scope of expertise. Can you comment on that and whether this at all diminishes the significance or relevance of Waranowitz’s affidavit in the recent filing by Justin Brown? I read his affidavit as saying that had he known that AT&T did not view the location data as reliable for incoming calls he would have wanted additional information from AT&T which may have affected the testimony he did give, whether that testimony was related specifically to exhibit 31 or not. However, I'd be very interested in your thoughts.

Posted by: Pete | Oct 15, 2015 8:43:08 AM

This whole case breaks my heart, especially CG's performance since Day 1. She had Adnan's life in her hands and by dropping the ball she changed that life forever. How was she referred to Adnan again?

Posted by: Penny | Oct 15, 2015 8:46:08 AM

AdditionalCoffee: I don’t think there is any risk because it was the State’s own bried that caused the pivot.

Sassy: Right. Her statements in this exchange are so troubling.

BK: The next step is the judge deciding whether to hold a hearing on the motion to reopen. There is no prescribed deadline for that decision.

Pete: Both the State (in its brief) and Warnowitz (in his affidavit) state that he relied on Exhibit 31 for his testimony. Even if he didn’t it wouldn’t make a difference. The point is that incoming pings should not have been used at all to determine location, and yet the prosecution used those pings heavily at trial and during closing.

Penny: She was referred by Adnan’s initial (bail) lawyers, I believe. She had a good reputation until right about the point she started representing Adnan.

Posted by: Colin | Oct 15, 2015 9:05:44 AM

Colin, did you say in a previous episode that even if a new trial is granted, Adnan will have a hard time proving actual innocence on the basis of Asia's testimony (for purposes of recovery from the state based on MD law) because the lividity evidence shows the whole timeline is wrong anyway? But as you say in this episode, the state is stuck with the timeline presented at the first trials, so shouldn't a solid alibi witness be deemed proof of actual innocence?

Or did you say that Adnan will not be able to prove actual innocence only if a new trial is granted under an ineffective assistance theory rather than for a Brady violation?

Posted by: Dani | Oct 15, 2015 9:49:57 AM

Distressing. Probably a good reminder for us all that the crappy defense CG delivered is probably not too different from what poor defendants receive on a regular basis.

Posted by: June | Oct 15, 2015 10:36:30 AM

If a new trial is eventually granted, is there still a possibility the State would offer a plea deal? Or that they would choose not to retry at all? Which would be more likely?

Posted by: kc | Oct 15, 2015 10:40:47 AM

Here's my disconnect with this issue. The state disclosed everything in exhibit 31 before trial. How is putting pages from different documents together a Brady violation? I can see CG missing it as IAC but not the Brady angle. Help?

Posted by: DJ | Oct 15, 2015 11:58:39 AM

Colin, can you clarify from the Undisclosed addendum how you know that the AT&T fax to (I think) MacGillivary had the cover sheet, since you said it wasn't disclosed to the defense? Was that in the prosecution files you've had, or a recent MPIA request, or something else? Thanks.

Posted by: carnotbrown | Oct 15, 2015 12:29:17 PM

DJ, the State never disclosed the coversheet that came with the February 22nd fax (from which the docs making up Ex. 31 were taken).

Posted by: Susan | Oct 15, 2015 12:34:43 PM

Colin- Wouldn't either scenario (her lying about seeing the exhibit or agreeing to it without reviewing it) be further proof for the IAC argument?

Posted by: Rachel | Oct 15, 2015 12:36:23 PM

DJ - My understanding of this is that exhibit 31 cited earlier and in the post is a single, incomplete exhibit. What the prosecution presented as exhibit 31 did not include the cover page.

This is why Colin says, "even if the State had been forthcoming about the nature of Exhibit 31." The nature of this exhibit is shenanigans.

Posted by: boo | Oct 15, 2015 12:42:56 PM

Dani: I think Asia would be very helpful as an alibi witness at a new trial. I don’t see how the State could argue a new timeline. Then again, I think there’s no way there’s a new trial if the conviction is overturned. In addition to what we’ve discussed, there are other factors that would make a prosecution impossible.

June: As we will discuss in a few weeks, Gutierrez was in a league of her own.

kc: The most likely scenario now is that the State would not bring charges again if the conviction is overturned.

DJ: By the State’s own admission, Gutierrez would have risked looking foolish and disingenuous at trial if she tried to use the AT&T cover sheet to get the incoming pings deemed inadmissible. As yesterday’s post makes clear, misleading disclosures are Brady violations just like non-disclosures.

carnotbrown: It’s in the MPIA files.

Rachel: yes.

Posted by: Colin | Oct 15, 2015 1:55:48 PM

Why weren't incoming call records/details ever obtained?

Posted by: kc | Oct 15, 2015 3:44:09 PM

Colin, from your perspective, do you think this is enough for a new trial? What is the most likely outcome, if you had to read the tea leaves and speculate? At this point I have an image of you, Susan, and Rabia saying "Checkmate."

Posted by: RR | Oct 15, 2015 4:27:21 PM

Thanks. If the complete fax was discovered through the MPIA request, and that was the only copy with the AT&T cover sheet, why did Justin use the version found in Gutierrez's files as the exhibit to this brief? Wouldn't the MPIA version be stronger?

Posted by: Dani | Oct 15, 2015 5:05:11 PM

As a retired prof to a current prof you must be an Outstanding teacher, considering how clear and to the point your posts are
Keep up the great work

Posted by: Cheri | Oct 15, 2015 7:19:34 PM

Wow, Gutierrez really had a bad attitude. That said, why did her ignorance of entered evidence cause a retrial? Also--just what is legal meaning of "stipulate" (why don't they simply say "accept)?

Posted by: MaryD | Oct 16, 2015 1:04:27 AM

I was confused by the new podcast episode. Does the state have an obligation to show the cover sheet to its own witness? How does it constitute a Brady violation?

Posted by: S | Oct 16, 2015 2:38:28 PM

Greetings from Ireland.

Colin, thank you for all your hard work on the podcast and on this case - Rabia, Susan and you all deserve huge credit for your work, regardless of the final outcome.

My question is this: If Waranowitz's no longer stands behind his testimony and Exhibit 31 can no longer be used to confirm Adnan's location, doesn't that destroy Jay's story about what happened on January 13th? - a story that was more than massaged with the help of the police. Without being able to prove Jay's (contrived) story, the state has nothing solid upon which to build their case. As a result if the court were to grant a new trial, the state would have nothing more to offer based on the evidence from the first two trials - unless they come across something new and startling of course. Is that a fair assumption?

I think the police officers and the prosecution involved in this should hang their heads in shame at some of the things they have done while prosecuting this case - from the "tap tap" to help Jay "remember", to the falsehoods told at the bail hearings or recommending attorneys for Jay and Jen as well as the lies told about cell tower data they have consistently shown themselves to be at best lazy/unprofessional and at worst malicious/vindictive. As for Ms. Gutierrez (may she rest in peace), she has proven again and again she wasn't up to the job - I can only hope that was due to her illness and, as mentioned before, Adnan was just unlucky to get her at that particular time. If you are doing a future episode on her, it would be interesting to see her record in previous cases.

Again, thank you for a wonderful podcast.

Posted by: SH | Oct 16, 2015 2:43:37 PM

what did Urick mean 'I think theythey have a copy of the complete exhibit, I remember making them'? does that mean including cover sheet? or the page that said subscriber information? or just the few pages that you're talking about? is the complete exhibit included in your files?

Posted by: sasha | Oct 16, 2015 4:57:25 PM

Is there any way the judge could, based on the briefs, decide there was a Brady violation and order a new trial without a hearing?

Posted by: Narizarielka | Oct 16, 2015 11:27:16 PM

kc: Our best guess is that the State consciously avoided obtaining them.

RR: I believe that it is enough for a new trial, but I want to see how the State addresses this issue before saying anything definitive.

Dani: Brady is all about what was disclosed to the defense.

Cheri: Thanks.

MaryD: What she said caused the judge to call her a liar. A juror heard this comment by the judge. The trial couldn’t precede based on what the judge heard.

S: According to the State, based on what it disclosed, Gutierrez had no reason to use the AT&T cover sheet at trial. Indeed, according to the State, she would have risked looking foolish and disingenuous if she did so. That’s the Brady violation. The Warnowitz affidavit reveals that this knowledge would have made a difference.

SH: Yes. Urick himself has admitted that Jay’s testimony enough wan’t alone. The State needed the pings to corroborate his story.

sasha: Exhibit 31 did not include the cover sheet or the pages stating “Subscriber Activity report.” Urick is just saying that Gutierrez was given Exhibit 31, the misleading exhibit.

Narizarielka: I believe that Maryland law requires a hearing.

Note: This is the 25th and final comment that will appear on this post.

Posted by: Colin | Oct 18, 2015 6:56:37 PM

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