EvidenceProf Blog

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

Monday, February 8, 2016

Did FBI Special Agent Chad Fitzgerald Just Prove the Defense's Brady Claim?

It's a busy day for me today, but, having just arrived back from class, I am intrigued by the reporting regarding Justin Brown's cross-examination of FBI Special Agent Chad Fitzgerald. Last Friday, the reopened PCR proceedings came to an abrupt end after Fiztgerald told the judge that he'd discovered something:

Screen Shot 2016-02-08 at 11.27.44 AM

This morning, Fitzgerald ostensibly revealed his discovery.

Apparently, Fitzgerald's discovery was that the cell phone/tower records that Justin Brown showed him were "manipulated."

Screen Shot 2016-02-08 at 11.30.08 AM

This is a very interesting claim, given that Brown presumably was showing Fitzgerald the records that the State had turned over to Cristina Gutierrez back in 1999. What's interesting is that the heart of Adnan's current Brady claim is that the State gave the defense confusing/misleading/Frankensteinian copies of Adnan's cell phone/tower records, making it so that Gutierrez didn't realize she had a viable Frye objection.

Therefore, if the reporting of Brown's cross-examination of Fitzgerald is accurate, he might have just proven the defense's case.



| Permalink



Posted by: Lagertha | Feb 8, 2016 8:39:53 AM

Thank you for this! This is exactly what I was thinking was happening. CHILLS.

Posted by: Julie Presley | Feb 8, 2016 8:41:22 AM

Colin if this is true it will be very hard for Marylands judicial system to recover. No one will trust the prosecution.

Posted by: Gee | Feb 8, 2016 8:43:03 AM

Does it go back into why Fitzgerald refused to call them "Subscriber Activity Reports" even when they were presented as such? Also, given those are the exact documents that CG was given in 1999, any allegation against Justin Brown is ridiculous. If Fitzgerald accused him of anything, he should apologize to him.

Posted by: Bill Kelly | Feb 8, 2016 8:56:32 AM

thanks for the swift explanation!

Posted by: sara | Feb 8, 2016 8:58:23 AM

I Like Jessie DaSilva's coverage. She is doing a good job. If you are reading this Jessie, thanks :)

Posted by: Robert Kirkpatrick | Feb 8, 2016 9:20:37 AM

Can the judge order a three-month investigation into the science of cell towers, what 1999 call logs actually show, etc.?Basically find out what CG should have found out for the first two trials? I'm speculating that this is what JB is hinting at when he says something does not smell good.

Posted by: Mary | Feb 8, 2016 9:30:07 AM

If I didn't know better I would swear I was watching a bad movie.
Does this investigator seriously not get that the state gave bad evidence to the defense and now he confirmed it??? I hope this judge is getting this.

Posted by: NavyMom | Feb 8, 2016 10:05:31 AM

What is the typical deliberation period for an appellate judge to render a decision??

Posted by: Amy | Feb 8, 2016 10:23:22 AM

Listening to "Serial" and "Undisclosed" I'm getting two totally different impressions of how the hearing is going. "Undisclosed" does a great job cutting through and explaining the State's BS, but it sounds like all that BS is landing if you listen to "Serial."

One example is how the State claimed that Syed asked McClain to type the second letter. "Serial" conveyed that as damning, while "Undisclosed" quickly debunked that as the State totally misrepresenting evidence. Listening to "Serial," though, it makes me wonder if the defense is making (or even given the chance to make) this clear in court.

So I was wondering if you guys could do an update about how clearly the defense has been able to make this case to the judge? Cause I tell you, listening to that first episode of "Serial" sounded dire, and it felt like the State was doing an excellent job.



Posted by: JJ | Feb 8, 2016 10:59:09 AM

Where does the state get the copy of the defense files from? Is an original set still held somewhere official-ish?

Posted by: Cupcake | Feb 8, 2016 11:15:25 AM

Just a quick general question about the PCR:

1. Will the transcript of the hearing become accessible to the general public (within the next weeks)?
2. Is the hearing being taped on audio or video by the press or the courthouse itself?

Posted by: Martin | Feb 8, 2016 11:48:39 AM

It's so delicious when the State's own "expert" unwittingly testifies that Brady violation occurred. Oops.

Posted by: Bryan | Feb 8, 2016 12:19:38 PM

I think my heart literally just stopped........ this is what we have been waiting for!!!! Everything crossed this throws the case out once and for all!!!

Posted by: Eryn | Feb 8, 2016 1:24:24 PM

Whhhhhhhhhhhaaaaaaat?! I don't know why This should surprise me but it does. If he saying it was manipulated and not just wrong, Urick has some 'splaining to do

Posted by: Anonynon | Feb 8, 2016 1:32:26 PM

Has there been any clarification on this? At first it sounded like this was a revelation of the phone records given to Gutierrez being manipulated, but now it sounds like Fitzgerald is accusing Brown of manipulating the records. I'm lost.

Posted by: Lu | Feb 8, 2016 4:25:30 PM

I was wondering how the Brady violation was figuring into all this so far. Thanks for pointing that out. Anyway it points toward prosecutorial misconduct?

Posted by: Cindy | Feb 8, 2016 8:03:22 PM

This is best explanation of this I've seen all day. Thanks!
Wish I could take your class.

Posted by: Brook | Feb 8, 2016 8:12:15 PM

I thought the Brady claim was simply the missing fax cover. What is the "confusing/misleading/Frankensteinian" claim?

Posted by: Terry | Feb 8, 2016 10:16:48 PM

If Adnan gets a new trial can Justin Brown request a Frye hearing to determine the reliability of the cell tower data? Is an atty required to use the same evidence used in the original trial? Hae's diary and the video of the police examining her car are more examples. Thanks.

Posted by: S Wilson | Feb 8, 2016 10:18:37 PM

Was the defense before today making the identical claim that Fitz just made/confirmed?

Posted by: Terry | Feb 8, 2016 10:21:16 PM

I got the impression that Fitzgerald was angry at the defense for giving him manipulated records, that they were playing a "game" with him and he was very upset with them. So, is the judge seeing it that way (that the defense manipulated the records) or will he see it that the prosecution is the one who manipulated records all those years ago?

Posted by: CeeJay | Feb 9, 2016 4:43:20 AM

I'm not sure if this helps or hurts. Can the courts or the agents prove where/when/how they were manipulated if true? Given that we've all been going by the same documents, I'd assume the ORIGINALS were bad but given how judges and juries (I know there isn't a jury here) see this kind of thing isn't it more likely that such evidence would be thrown out in its entirety? That means neither the state nor defense can use it. That also means there's less so-called evidence in general. So where does that leave us if those documents are suspect from the start?

Posted by: Megan Pawlak | Feb 9, 2016 6:44:55 AM

Could CG have obtained the cell records directly from AT&T? If so, does that debunk the theory of a Brady violation?

Posted by: Jill | Feb 9, 2016 8:12:24 AM

Hi Colin et al- regarding ineffective assistance of counsel: was the bail/birthdate issue is 1998 an issue for this? Thanks as always for your incredible podcast and your outstanding efforts for justice!!
CM Note: This is the last comment that will appear. Responses:

Bill Kelly: Yes, this seems to prove the defense's case.

Mary: No, the judge can't do his own investigation.

Amy: It would usually be a few months, but this is the only case for this retired judge, and it's second time hearing the case.

jj: We will likely have a wrap-up episode next week.

Cupcake: I don't know whether they get the digital or paper copy.

Martin: A transcript should be available at some point. I'm not sure when. I assume the hearings were recorded.

Lu: Fitzgerald made the accusation. It turns out Brown was using what Gutierrez was given.

Cindy: The testimony and evidence seems to support the Brady argument made in the briefs.

Terry: Exhibit 31 was parts of three different reports cobbled together (sans disclaimer).

S Wilson: Yes, a Frye hearing could be requested. Also, new evidence could be presented.

Terry: Yes.

Megan: It would mean a Brady violation.

Jill: No, Ware says this would still be a Brady violation even if that were the case.

Brenda: No, it wasn't.

Posted by: Brenda Sue Thompson | Feb 9, 2016 8:21:20 AM

Post a comment