EvidenceProf Blog

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

Wednesday, October 14, 2015

Ware v. State & Misleading Disclosures as Brady Violations in Maryland

Yesterday, Adnan's attorney filed his reply brief. That brief was accompanied by some very interesting exhibits. You can hear my thoughts about the reply brief when this week's Addendum episode of the Undisclosed Podcast premieres tonight at around 6:00 P.M. In this post, I will address something that we didn't discuss on the episode.

In the episode, we do talk about the opinion of the Court of Appeals of Maryland in Ware v. State, 702 A.2d 699 (Md. 1997). It's a case with more than a few similarities to Adnan's case. In particular, the key witness for the prosecution -- Edward Anderson -- testified pursuant to a plea deal, with a motion to modify his sentence held sub curia, pending his testimony at the defendant's trial

In response to a request by the defense, the prosecution turned over many (but not all) details about the plea deal, but it did so in a circuitous and misleading manner. As a result, the trial court found that there was no Brady violation, concluding

that the "central essence" of the non-disclosed agreement "would have been fully before the jury" through the available information that defense counsel did not present; and that "chipping further away at the edges of Edward Anderson's testimony by use of the suppressed agreement would likely only have opened the door for an impressive rehabilitation of his testimony."

In other words, the defense claimed in part that it didn't present all of the available information it had about the plea deal because the prosecution's disclosure was misleading. The trial court responded that a misleading disclosure did not rise to the level of a Brady violation.

The Court of Appeals of Maryland agreed with the defendant. According to the court,

"When the prosecutor receives a specific and relevant request," the Supreme Court noted in Agurs..., "the failure to make any response is seldom, if ever, excusable." If the failure to make any response is rarely excusable, then certainly a misleading response is seldom, if ever, excusable as well. Ware made more than one specific request for disclosure of any agreements or understanding between the State and Anderson. Although under Bagley we no longer distinguish for purposes of determining the standard of materiality among cases in which the defense made a specific request as opposed to a general request or no request at all, the fact that the defendant made a specific request figures into the analysis nevertheless.* (emphasis added).

In other words, according to Maryland's highest court, "a misleading response is seldom, if ever, excusable" under Brady. This is important because, at a minimum, the State's disclosures in Adnan's case regarding the cell tower information, both to the defense and its own expert, were misleading. Pursuant to Ware, that means that the court should find a Brady violation.

In today's episode, we will talk about a different aspect of Ware, and, hopefully, in a future episode, we will talk about yet another aspect of Ware.


*Of course, Gutierrez made several specific requests for the cell tower evidence in Adnan's case.



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6pm in which time zone?! I'm a Brit & planning when's best to listen as it's already after 7pm here :)

Posted by: Carly | Oct 14, 2015 11:15:37 AM

Carly, 6 PM Eastern time!

Posted by: Absurdamerica | Oct 14, 2015 11:49:58 AM

Will Undisclosed touch on what Bob Ruff has uncovered about Don? Specifically, that his stepmother was the one who reported his time sheet to police. Ruff mentioned something about Undisclosed talking about it during his last episode.

Posted by: Devin | Oct 14, 2015 12:17:46 PM

Thank youuuu

Posted by: Carly | Oct 14, 2015 12:43:38 PM

Is it relevant that Agurs involved a specific disclosure request from the defense? Did Guitierrez make an explicit disclosure request about the cell records?

Posted by: Jon | Oct 14, 2015 12:45:09 PM


As always this is great stuff for us non-lawyer types, I love the commentary you provide. One thing I have seen in various threads was that the cell expert never directly testified about exhibit 31 as Ms Gutierrez successfully prevented that from happening. Is that true? and if so does that have any bearing on the Brady claim? I am getting a bit lost in the details and wondering if you could clear that up a bit.

Again thanks so much...

Posted by: Eric | Oct 14, 2015 12:55:09 PM

I'm a Brit too and it's nearly Thursday here, it's agony all this waiting ;) Keep up then great great work!

Posted by: Hannah pudner | Oct 14, 2015 1:17:00 PM

Devin: We’re going to talk about evidence relating to Don in our discovery episode, but tonight’s episode is about the reply brief submitted yesterday.

jon: As the court noted, a specific request isn’t required, but it is relevant. Gutierrez did specifically request the cell tower evidence.

Eric: According to the State’s brief (pg. 33):
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.
This is consistent with Warnowitz’s affidavit, which indicated that he was given Exhibit 31 just before he testified. So, he relied on Exhibit 31, making the cover letter relevant. Also, regardless of Warnowitz’s testimony, the point is that Exhibit 31 shouldn’t have been admitted used at trial in any way.

Posted by: Colin | Oct 14, 2015 1:23:29 PM

When is the discovery episode, next Monday?

Posted by: Penny | Oct 14, 2015 1:30:19 PM

what still confuses me is that the defense had the cover letter that stated the ATT stipulation. How is that Brady if CG had it in her possession? Isn't the onus on her to catch it?

Posted by: Reagan | Oct 14, 2015 1:34:57 PM

Penny: The next full episode is on the grand jury. The following episode will likely be on discovery.
Reagan: This goes to the misleading nature of the State’s disclosure. Exhibit 31 was a combination of three different documents, including a portion of a Subscriber Activity report, which is the report that listed the cell towers. The page listing the report as a Subscriber Activity report, however, was not included. The AT&T cover sheet about incoming calls being unreliable for determining location was also not included in Exhibit 31 although it was included with other records turned over by the State.

According to the State’s most recent filing, (1) the cover letter only applied to Subscriber Activity reports; (2) Exhibit 31 was not a Subscriber Activity report; (3) the prosecution introduced no Subscriber Activity reports at trial; and (4) as a result, Gutierrez would have risked looking foolish and disingenuous if she tried to used the AT&T cover sheet at trial.
It turns out that the State was wrong about points 2 & 3. The relevant portion of Exhibit 31 was a Subscriber Activity report, and it was introduced by the prosecution at trial. But Gutierrez had no way of knowing this because of the misleading nature of the State’s disclosure. Indeed, the disclosure was so misleading that the State itself didn’t realize the nature of Exhibit 31 in its brief a few weeks ago. So, the argument is that while Gutierrez had the AT&T cover sheet, the State’s misleading disclosure prevented her from realizing it was relevant at trial. Worse, according to the State’s own argument, she would have risked looking foolish and disingenuous if she tried to use it.

Posted by: Colin | Oct 14, 2015 1:46:37 PM

Ineffective council seems like a good argument - can evidence about CG's decline (taking money and not using it for stated purpose, issues with handling of her final cases, etc.) be introduced for this brief? Any statements from the other attorneys/clerks at the firm from this time? Why isn't this line being used? Tks.

Posted by: Joe | Oct 14, 2015 1:57:05 PM

I just wanted to thank you for breaking this all down for the non lawyers.

Posted by: Anna | Oct 14, 2015 2:59:56 PM

The ATT fax cover sheet has been discussed before.  Is it a new understanding that it applied to Exhibit 31 and was withheld by the State from that Exhibit?

And therefore it becomes a clear Brady violation?

Also, did the State's raising of a possible change to their timeline allow this Brady violation to be raised in the current appeal rather than waiting for all the Brady violations to be raised in the, yet to be submitted, appeal regarding multiple Brady violations?

Posted by: Ricardo Fiusco | Oct 15, 2015 4:04:05 AM

Thank you Colin for constantly providing information that is easy to digest for those of us with no legal experience.

Posted by: Sandra | Oct 15, 2015 5:39:17 AM

Hi Colin,
Thanks so much for the great work making this understandable to us non-lawyers.

I'm curious as to your response to the reddit amateur investigators who say that despite what the fax cover sheet says, the incoming calls can be determined to be reliable because they ping the same towers that outgoing calls do when made within seconds of each other. I haven't looked into this myself. Is it accurate and logical?
Also, I'm starting to get confused. Is the motion to re-open for post conviction relief or a new trial and a possible exoneration? Thanks again.

Posted by: Bella | Oct 15, 2015 6:16:29 AM

Does the State have an opportunity to respond to Adnon's filing this week? Also, can you explain what relief the court can grant at this point? Does this court have the authority to grant Adnan a new trial? If so, is the request to allow Asia's testimony moot? What appeal rights would the state have if Adnon received a favorable judgment?

Posted by: Jill | Oct 15, 2015 7:47:41 AM

Given Asia's interview with Serial and new affidavit, it appears Urick lied under oath in the post-conviction hearing. Asia testifying at any new hearing could cement that, which is another strong motive for the State to object to letting her testify. What do you think the chances are that Urick could actually be charged with perjury?

(Actually was a lawyer in a previous life, so this all has been like heroin for a relapsed addict -- thanks!!)

Posted by: Holly | Oct 15, 2015 9:04:28 AM

Joe: Yes, that should all be admissible.

Anna: You’re welcome.

Ricardo Fiusco: Exactly. By the State’s own admission, what it had disclosed to the defense gave Adnan’s trial and appellate counsel no reason to believe that the cover sheet applied to Exhibit 31.

Sandra: No problem.

Bella: I haven’t looked at that analysis, so I can’t say. The motion is a motion to reopen the PCR proceeding. If it is reopened, Adnan could be granted a new trial.

Jill: My understanding is that the State has no other opportunity to respond and that the judge will now decide whether there should be a hearing on the motion to reopen. After the hearing, the judge would decide to reopen. If he does reopen, a new trial could be granted after the reopened hearing.

Holly: I don’t think that Urick will be charged with perjury. I’m thinking/hoping that he made some honest mistakes when testifying, and it would be tough to prove otherwise.

Posted by: Colin | Oct 15, 2015 9:12:37 AM

Aren't you citing to dicta? And, isn't this case distinguishable in many ways? For instance, in Ware, there were specific discovery requests made to which assurances were given that no responsive materials existed despite the fact responsive materials did in fact exist. That's not the case for Syed. I may be wrong, but didn't CG have the cover sheet? If she did isn't that enough? How was the disclosure "misleading"?

Posted by: Clem | Oct 16, 2015 11:58:45 AM

Clem: The language about the State's disclosure being misleading isn't dicta; it's the core of the court's conclusion. Indeed, it comes right before the court discusses the facts of the Ware case. And sure, the Ware cases involves different facts, but the legal principle is what's important.

Posted by: Colin | Oct 18, 2015 6:49:13 PM

I think maybe what Clem was referring to is that the original quote in Agurs about failure to respond to a specific discovery request (which the Ware court extended to misleading responses to specific requests) being “seldom, if ever, excusable” was itself dicta. In fact, as the Ware court acknowledged, under Bagley there is not a different materiality standard applicable to Brady claims arising out of specific requests (as opposed to general requests or no requests at all). Rather, the presence of a specific request may influence materiality, under the normal “reasonable probability” standard, if the misleading or inadequate response actively led the defense to forgo independent investigation into potentially exculpation, impeachment or mitigation evidence under the erroneous belief that such evidence did not exist. Thus, I think saying that the court in Adnan’s case should find a Brady violation on the basis of a misleading response, without further information about whether the defense abandoned inquiry into an area that could have significantly affected the trial, overstates the case.

Posted by: Josh | Oct 19, 2015 8:57:26 AM

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