EvidenceProf Blog

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

Tuesday, November 17, 2015

An Accounting of How Gutierrez Handled All of the Alibi Witnesses at Adnan's Trial(s)

Following up on yesterday's post, this post will explore how Cristina Gutierrez handled all of the potential alibi witnesses at B  trial.

1. Becky: Becky tells the police that, on January 13th she saw Adnan and Hae walking in opposite directions at the end of school, with Hae telling Adnan that she couldn't give him a ride because she had "something else" to do. At trial, Gutierrez calls Becky as a defense witness and elicits testimony from her that she saw Hae heading to the door that led to her car seconds after school ended, with Hae saying that she had somewhere that she needed to be after school and that she had to leave. Somehow, Gutierrez does not elicit from Becky at trial the vital information that Hae was heading to the door that led to her car (1) after telling Adnan that she had "something else" to do; (2) as he was walking in the opposite direction.*

2. Asia: Asia writes Adnan two letters which indicate that she recalls seeing him after school in the Woodlawn Public Library on January 13th. Those letters also state that there were two other individuals with her in the library who could have corroborated this alibi defense; one of the letters has Asia's phone number. Adnan tells Gutierrez about Asia, prompting her to write an undated note [Exhibit 4]; Adnan also tells Gutierrez's student/clerk about Asia, prompting him to write a note on July 13th [Exhibit 3]. Asia says that she was never contacted by anyone from the defense team.

3. Debbie: In her March 26th police statement, Debbie initially says that she's positive she saw Adnan at the guidance counselor's office at 2:45 P.M. on January 13th and talked to him about track practice. Upon prodding by the detectives, she says that it could have been the day before or the day after, but there was track practice on neither of those other days (1/12 was a track meet, and school was closed on 1/14). At Adnan's first trial, Gutierrez gets Debbie to testify that she remembered telling the detectives that she saw Adnan at the guidance counselor's office at 2:45 P.M. on January 13th. At the second trial, Debbie tells Gutierrez that she does not remember telling the detectives that she saw Adnan at the guidance counselor's office at 2:45 P.M. on January 13th. Gutierrez makes no effort to refresh Debbie's recollection with her March 26th statement and makes no effort to admit the statement as an exhibit despite the fact that it qualifies as nonhearsay under Maryland law.

4. Coach Sye: Coach Sye tells the detectives that he recalls talking to Adnan at track practice toward the end of Ramadan on an unusually warm day in January where the temperature was in the 50's; Sye also remembers Adnan arriving and leaving on time on the day in question. A quick check of the weather reveals that this day only could have been January 13th. Gutierrez calls Sye as a defense witness at trial. At trial, Sye indicates that he has no way of knowing whether he saw Adnan at practice on January 13th. Gutierrez makes no attempt to use signposts (days of Ramadan, January weather) to establish that Sye recalled seeing Adnan on January 13th.

5. Track Teammates: Gutierrez tasks a student/clerk with compiling a list of Adnan's indoor track teammates. That clerk looks at the Woodlawn yearbook and creates an October 16th memo with eight indoor track team members who had medaled at a certain event. The memo fails to include dozens of other track teammates and fails to identify Adnan's track buddy Will as a senior. As a result, Will's subpoena is sent to Woodlawn High School despite the fact that he had already graduated.** Because there is no follow-up, Will is never contacted by the defense. I have no idea whether any other teammates were contacted by the defense; I know, at a minimum, that several other teammates were not.

6. Bilal: Bilal was Gutierrez's former client and testified before the grand jury that he recalled Adnan preparing with him at the Mosque on the night of January 13th for prayers that he would lead on January 14th. There's even a document in the defense files that consists of notes that Bilal and Adnan went over in anticipation of the prayers on January 14th:

Screen Shot 2015-11-17 at 6.48.19 AM

Excerpt from prayer notes

At trial, Bilal is not called as a witness after he was first arrested and later disappeared. Maryland has a counterpart to Federal Rule of Evidence 804(b)(1), which allows for the admission of "former testimony" by an unavailable declarant/witness as long as the party against whom it is offered had an opportunity and similar motive to develop his testimony. Because the State called and questioned Bilal before the grand jury, this exception should have applied, but Gutierrez made no attempt to admit Bilal's former testimony as an exhibit.

7. Adnan's Father: Adnan's father was called by Gutierrez and did testify that he remembered seeing Adnan at the Mosque on January 13th. It's kind of hard to see the ball being dropped on this one. That said, familial alibi witnesses aren't usually given much weight, so it's easy to see the jury not placing much importance on his testimony.

8. Other Mosque Members: Adnan's alibi notice lists 70+ other Mosque members. This wasn't a list generated by the defense; it was a list provided by Adnan's family. Many of these Mosque members have indicated that they were never contacted by the defense. I would love to do an accounting one day of how many of these Mosque members actually were contacted by the defense. I bet that I could count the number on one hand (maybe two).


*When Becky was shown her statement to detectives by Sarah Koenig, she said, "Okay. Yeah that sounds right. It kind of all comes back a little bit." Krista could have corroborated Becky's statement, but the defense sent her subpoena to the wrong address and zip code. Aisha also ostensibly could have corroborated Becky's statement, but the defense apparently never asked her what Hae said to Adnan at the end of school.

**A subpoena for an assistant coach was also sent to the wrong place, but I don't think he had any recollection of whether he saw Adnan on January 13th. The defense notes also imply that another assistant track coach who could have been an alibi witness was never contacted.



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It sounds to me that Tina did not focus on actual proving the defense wrong by creating a reasonable doubt however she tried to find a technicality that would get Adnan off. I think she took this route because of her heavy case load.

Posted by: Gee | Nov 17, 2015 8:15:21 AM

the moment Tina refused to talk about the trial with Rabia or the parents they should have fired her.

Posted by: Matt | Nov 17, 2015 10:08:57 AM

"Somehow, Gutierrez does not elicit from Becky at trial the vital information that Hae was heading to the door that led to her car (1) after telling Adnan that she had "something else" to do; (2) as he was walking in the opposite direction."
Could this be because Adnan insisted that he did not/would not ask Hae for a ride after school?

Posted by: Bob | Nov 17, 2015 10:29:33 AM

Hi Collin,

I am a regular reader of your blog. I eagerly wait for the next eposide of undisclosed-podcast. You guys are doing awsome job. One thing I can say for sure, TINA DID NOT DO HER JOB for which she was paid a hefty amount. Her poor work caused an innocent guy to waste 16 golden years of his life in prision.
Adnan is one case where luckly he got a second chance to prove his innocence, but there would be many other Adnans who would never get this second chance and loose their lives behind bars.
I am not familar with law , but I am going to use common sense analogy. If a doctor makes a mistake and patient suffers, doctor is sued and patient gets some compensation. In case of a lawyer's screwing the case, is there anything client can do against the lawyer ?

Posted by: John Doe | Nov 17, 2015 10:43:19 AM

I wonder if CG should have also question Debbie about why Adnan would be asking Hae for a ride in the first place since he had his car with him that day.

Posted by: Tyler | Nov 17, 2015 10:51:07 AM

Mailing a subpoena to the wrong address is inexcusable. And subpoenas are served personally, not mailed. A subpoena not served personally is usually without any force or effect. This is pure incompetence. How did Tina ever get through this trial if she can't even direct her staff to serve subpoenas properly?

Posted by: JoeShmoe99 | Nov 17, 2015 11:54:12 AM

Re. the latest episode...it's interesting to note that Don's mother was no longer general manager at the time of the 2nd subpoena, with no current position noted - had she left? https://viewfromll2.files.wordpress.com/2015/03/subpoena-production-to-urick-10-7-99-dons-additional-records.pdf

Posted by: Cupcake | Nov 17, 2015 12:09:34 PM

I wish this case was a perfect storm, but I've dug enough to know it's not.

Posted by: Jason P | Nov 17, 2015 12:38:11 PM

Have the clerks/students who were working for Ms. Gutierrez at the time been interviewed recently? With her gone, their perspectives/memories of the case would be very interesting.

Posted by: Cameron | Nov 17, 2015 5:14:30 PM

Here is the rule: Disclosure of information and witnesses. Upon receipt of notice that the defendant intends to rely upon an alibi defense, the prosecutor shall inform the defendant in writing of the specific time, date, and place at which the offense is alleged to have been committed.Surprise Time of Murder

When did CG learn about the prosecution’s theory that HNL was murdered prior to 2:36? It seems that she did not know this crucial information prior to the 1st trial. And since she didn’t know, wouldn’t that constitute a surprise which Adnan should have been provided more time to prepare - to include where he was during this time (Asia Mclain)?

The rules of alibi were NOT followed by the prosecution for which upon notice of an alibi by the defense – the prosecution was required to promptly provide CG with the alleged time and place of HML’s murder. Would this be both an alibi rule and Brady violation too?

Because CG was not informed in advance of trial of the time/location of the crime, there was significant prejudice against Adnan and constitutionally he was not given a fair trial.

Posted by: steve adachi | Nov 18, 2015 12:04:50 AM

How about this as a starting point for trial strategy: Cristina knew there was a fair to certain chance that Adnan was guilty. She was afraid of what she might end up eliciting, since by that point some of the witnesses also thought Adnan was guilty (Debbie, Aisha, Becky). Even Krista, who thinks Adnan is innocent, gave the worst possible evidence against Adnan.

Re: track people: no one has ever claimed that Adnan didn't go to track. It's the Prosecution's case that Adnan was at track that day. CG needed to prove where Adnan was before track. Again, if there was a good chance of Adnan's guilt, nothing Asia had to say was worth risking.

As for Bilal: producing testimony from someone who wasn't willing to stand up in court and say it in person is very risky just in itself. The jury would not receive it well and think he'd changed his mind/think CG was desperate. I don't know if details of the arrest could have been explored by the prosecution. If it could, imagine Urick or Murphy saying, 'So, CG's former client, who was arrested for sexual molestation of minors in the Mosque, and who has now run away somewhere, said he saw Adnan that night.' Hmmm...

If we know that even Adnan's character witnesses would not say they saw Adnan at Mosque on the 13th, CG was not going to be able to get anyone else to say they'd seen him.

Posted by: BonaFide | Nov 18, 2015 3:11:53 AM

Gee: Great point. I think her heavy caseload had a big impact on Adnan’s case.

Matt: True, but her great reputation preceded her. They had no idea what was coming.

Bob: Adnan could have said whatever he wanted, but it was Gutierrez’s call about how to question witnesses. Krista had already testified that she saw Adnan asking for a ride. I can’t imagine how it would have harmed Adnan’s case to ask Becky about Hae turning Adnan down for a ride after school. Of course, if Gutierrez hadn’t sent Krista’s subpoena to the wrong address, she might have known that Krista would have said the same.

John Doe; There can be a malpractice lawsuit, or a claim can be filed with the Client Protection Fund.

Tyler: Great point. She could have asked Debbie (and Becky) about Adnan frequently getting rides from Hae to track practice, even after they had broken up.

JoeShmoe99: Yes. There is a note in the defense files about the decision to mail subpoenas in this case as opposed to personally serving it. I will post it if I can find it.

Jason P: There are other perfect storm cases, but they are thankfully rare.

Steve: There was no “disclosure” of the 2:36 time frame until opening statement at the 1st trial.

BonaFide: If what you say were true, it was not only ineffective assistance but absolutely inconceivable that Gutierrez didn’t ask about a plea deal. If you’re so concerned about what every potential alibi witness would say that you don’t call them or ask them any pertinent cases, you shouldn’t be trying the case.

Posted by: Colin | Nov 18, 2015 3:44:10 AM

Colin, I agree 100% that CG should have sought out a plea deal, whether or not Adnan was loudly protesting innocence.

Posted by: BonaFide | Nov 18, 2015 4:52:33 AM

Hi Collin,
Not a lawyer here so may need this dumbed down a little more! Does ineffective assistance of counsel pertain to the actions of the entire defense team or only to the lead defense attorney, CG in this case?
I ask because I'm starting to wonder if CG intentionally relied on law students as a sort of scapegoat. Knowing she was ill, she could take on all the cases she did but fall back on the excuse that any possible errors were not hers per say. It doesn't matter anymore whether this was her line of thinking, but could a judge possibly rule this way--respond that CG was providing effective assistance but was failed by her staff?

Posted by: Mark | Nov 18, 2015 5:44:16 AM

As the one with the law license, Christina was ultimately responsible for the work product of her staff, paid or unpaid.

Posted by: Stephanie | Nov 18, 2015 12:51:34 PM

BonaFide - "Cristina knew there was a fair to certain chance that Adnan was guilty"

Based on what? There's no forensic evidence such as DNA, hair, fingerprints, or fibres from Adnan's clothes or car. It is virtually impossible to murder someone in such an intimate manner (strangulation) without leaving any trace evidence.

Nobody saw Adnan and Hae together after school.

The only "witness" is a compulsive liar who has produced about eight disparate versions of the day's events. He has different versions of where he was, who he saw, where he went, what Adnan said and did, and what he and Adnan did together

So either Adnan is:

-a shapeshifting evil genius who keeps invisible Hazmat suits in his car (so he can murder indiscriminately without leaving any trace evidence), and can use The Force to project himself in the library, athletics track, and mosque while committing murder elsewhere


-Someone who fell prey to Baltimore's notoriously corrupt "justice" system, while having the bad luck of being represented by the worst defence attorney possible

Hmm. Tough choice.

Posted by: Squatch | Nov 19, 2015 12:33:45 AM

Matt: Keep in mind, none of those conversations would be covered by attorney/client privilege. Adnan was the client. He is who she owed her loyalty too. See also: Lincoln Lawyer

That being said, there is no reason to be rude about it.

Posted by: Jason P | Nov 19, 2015 2:13:10 PM

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